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Water, business and human rights
Reflections from a Guiding Principles perspective
Financial support:Financial support:
Eduardo Sánchez y Alberto Guijarro
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On April 3, 2014, a Workshop on "Implementation of UN Guiding Principles to companies performance. A human right to water and sanitation approach" was held at the headquarters of the Ministry of Foreign Affairs and Cooperation in Madrid. This event was organized by ONGAWA, Engineering for Human Development, and the Human Rights Office of the Ministry, which also financed the activities, and had the support of the United Nations Office of Water Decade support.
The workshop was attended by representatives of companies, public institutions and social organizations that, from their experience, discussed the challenges posed by the interpretation and implementation of the Ruggie Principles on business and human rights to water and sanitation sectors in developing countries, and highlighted the interest in this area, its complexity and lack of development and depth of analysis. In this paper some of the ideas that emerged from the presentations and discussions, as well as some additional considerations from ONGAWA, are collected.
Introduction
On 16 June 2011, the United Nations Human Rights Council endorsed the Guiding Principles on Business and Human Rights, proposed by the Special Representative of the Secretary‐General on human rights and transnational corporations and other business enterprises, John Ruggie.
The Ruggie Principles provide a guiding framework of the criteria to be followed by business and governments to protect, respect and remedy with regard to business and human rights performance. They have brought a new international boost in this area to which Spain should join at different levels, especially from the business sector, and driven by public administrations and with the participation of civil society, paying particular attention to the implementation of the business guiding principles in developing countries and incorporating international experiences from which we could learn.
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1ONGAWA thanks all the workshop attendees participating. More information about it is available at the following link
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From this framework, the challenge lies in how to interpret and, above all, to apply such principles in business practice, with the added complexity of the contexts of developing countries. In this regard, the Human Rights Office of the Ministry of Foreign Affairs and Cooperation is developing the National Plan on business and human rights in line with the guidelines of the European Union, which includes a series of specific actions to put into practice in the coming years.
There are several ways to set the guiding principles, and one of the most interesting may be deal with them under a specific sectoral area where there is high risk of infringement. In this sense, the water and sanitation sector is a particularly relevant area of work, as it is recognized as a human right by the United Nations. It is also a priority for the Human Rights Office, the Spanish cooperation and for many businesses and NGOs, and there are important already internationalized companies or seeking to internationalize both in the water sector and other sectors that may affect them, such as agriculture, industry, textile or extractive.
There is an extensive reflection and a wide literature on the focus of the Human Right to Water and Sanitation, which contrasts with the few references available on approaches work from the perspective of the guiding principles. To promote the convergence of the two approaches, in this paper we propose a reflection exercise using experience directly or indirectly related to water actors, because of providing the service or promoting access to water as well as being able to affect it. These are experiences and reflections taking into account developing countries, but may also have been generated in Spain, because some problems and solutions can be similar.
In a first exercise of reflection is not possible to address all the issues in depth and to draw definitive conclusions, but it is possible to identify the major challenges and target the most promising lines to develop in future work. Here are some of them.
Business from Human Right to Water and Sanitation perspective
In March 2008, the Human Rights Council of the United Nations appointed an independent expert on the Human Right to Water, Catarina de Albuquerque, to analyse the various aspects of the implementation of the Human Right to Water (HRW). In April 2011, its mandate was extended for 3 years more as the Special Rapporteur on the Human Right to Water and Sanitation. In recent years, the Rapporteur has been publishing various reports which have become some of the most important references in the field of the human right to water and sanitation, although the analysis of the participation of the business sector has not yet been developed in depth.
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Catarina de Albuquerque’s report to the Human Rights Council of 2010 dedicated to the provision of non‐state services of water supply and sanitation refers to the companies involved in providing these services, but the damages on the rights by companies that can compete or contaminate water resources are not covered.
Private enterprise is given relatively little importance in the report, noting that globally, "it has been estimated that only 5% of the world population received services from the formal private sector in 2003". Besides, the complexity of addressing this scope due to the diversity in the size of companies and contractual arrangements as ownership of assets, the responsibility for the capital investment, risk sharing, responsibility for maintenance and typical duration of the contracts are also pointed. In many cases it is not posible to determine if the system is exclusively public or private, but has a hybrid character, also in the form of mixed businesses.
On the other side, most of the recommendations made in the report are intended for States, as duty bearers, rather than companies, stressing the obligation to protect the right with a clear definition of the scope of functions which are delegated, the supervision of delegated activities, the establishment of regulatory standards or the control on the compliance. It also highlights the importance of protecting the decision‐making process on the service delegation, contract negotiation and performance evaluation.
The role of the State in protecting the HRW and the recommendations of the independent expert are unquestionable. However, beyond the obligations of states and binding legal framework, it is found that social enterprises and organizations can make more than they have done meeting the HRW so far.
The need for further reflection
When addressing the HRW and businesses it is not enough to focus only on the acceptance of general principles, since these ones are agreed and accepted for years, even before the approval of the Ruggie principles. For example, the first two principles of the Global Compact, launched in 1999, which have signed more than 2,500 Spanish entities, mainly private companies, have already referred to the HR.
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The first one states that businesses should support and respect the protection of fundamental human rights, internationally recognized, within their sphere of influence. The second one states that businesses should make sure they are not complicit in the violation of the rights human either through I) direct complicity, which occurs when a company knowingly assists another entity in violation of human rights, II) complicity for indirect benefit, suggesting that a company benefits directly from abuses by third parties on human rights, or III) silent complicity, which describes how a company has engaged in systematic and continuous violation of human rights in its relations with the authorities of a country (eg, inaction or acceptance of systematic discrimination practices in law by the companies).
The conceptualization of what HRW means is also internationally agreed and assumed. HRW share with the rest of HR basic principles, such as equality and non‐discrimination, participation and inclusiveness, accountability, or universality, indivisibility and interdependence of all rights.
As different elements, the 15th General Comment of the Committee on Economic, Social and Cultural Rights related to the right to water, also provides various factors that take part from the HRW such as availability, quality, accessibility, physical and economical affordability, non‐discrimination and access to information. These categories are defined and used regularly in reports from different institutions, although there is the challenge of finding appropriate indicators from the perspective of rights and other key issues such as sustainability or participation.
Meanwhile, AquaFed, the International Federation of Private Water Operators, and the major companies in this sector expressly support the human right to water, so the debate on respect of HRW does not arise in the theoretical level of the general principles, but on the practical level of its interpretation and implementation. As Catarina de Albuquerque says "From the perspective of human rights is imperative to determine whether the provision of services contributes to the realization of human rights or undermines them".
Profesor John Ruggie: “How do you know?”
It is interesting to note how the principle of "respect", which applies to companies, specially emphasizes on "governance" in the internal rules, rather than the "right" or enforceable legal standards. Some companies claim to respect human rights, but as the famous and repeated Ruggie phrase notes: How do you know?. Companies can only ensure compliance if they have mechanisms that allow them to know what is the real situation and the risks of impact on HR.
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Within the operational principles outlined by Ruggie, the first is the political commitment formalized through a statement at the highest management level, to establish what the company expects from its staff, partners and other parties directly related and should be public and also be distributed internally and externally to all staff, partners and other stakeholders. However, to be effective, the company must establish appropriate mechanisms to permeate all levels of the company and its partners and other stakeholders.
Due diligence is the second operational principle and a basic element of the Ruggie’s framework, but there is some confusion about the term due to the different meanings of this concept in English and Spanish. The Spanish translation of the original English version of the Ruggie principles uses some terms that do not always retain all the nuances, so it is interesting to be able to handle both versions.
Due diligence in Spanish evokes care to run something, or even promptness, but not a predefined process, as Ruggie defines, and "should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed". A process which also has to be continuous in time to adapt itself to changes in business and in the environment in which it operates, and should not just stay in the departments of Corporate Social Responsibility, but must also involve the areas of the company that control the decisions and actions that can prevent, mitigate or remedy the impacts on HR.
The establishment of a good due diligence process can be complex if the company is large or the context and trading activity is in high risk with regard to human rights. However, the first steps in establishing the process are not necessarily difficult or expensive. The document of guiding principles includes guidelines on how to identify and assess the actual or potential adverse effects, how to integrate the conclusions of impact assessments, how to monitor the effectiveness of its response, and how to communicate in this area. Moreover, the duty to "respect" human rights requires the company to prevent and mitigate the impacts through the value chain, which must be
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taken into account when defining the mechanisms of due diligence. On the other side, there are several available tools that help establish indicators and plan activities.
Affordability and participation
Companies and governments are quite familiar with some basic categories of HRW, such as availability, physical accessibility of the infrastructure or water and service quality, as well as other issues such as economic and environmental sustainability. In contracts for provision of services these categories have often accurate indicators of compliance and are easily assessable. However, in other areas such as affordability, participation or access to information the situation is more complex, and require other type of management.
To ensure HRW, access to water has to be economically affordable, that is to say, the price of services must consider the ability of users to pay and payments shall not reduce the ability of people to acquire other essential goods such as food, housing, education or health. Setting prices to ensure the economic sustainability of the whole system and affordability for people with fewer resources is still an unsolved problem in many areas, and the solution is to make changes in pricing models.
In many cases the water tariff has a fixed rate that covers the fixed costs of the system, and a variable part proportional to water consumption. The variable part may have different prices for sections, getting more expensive unit cost with increasing consumption. It is also common the existence of social tariffs that establish a reduced or free cost for a minimum consumption to households with financial difficulties. However, this social rate does not always apply to the fixed portion of the bill, which may adversely affect affordability for people with lower incomes.
Some countries are experimenting with new pricing models. For example, in South Africa there are cases in which the tariff structure has a free and universal first tranche for the minimum subsistence. Thus affordability is guaranteed for all and the administrative process of requiring fewer resources people to justify their economic and social situation is avoided. The disadvantage of this model is that the access to water for people who can pay the access to water or even owners of second empty homes are also subsidised.
Another major problem is the disconnection due to delays or non‐payment. In many countries, including Spain, there is no clear legal rules protecting HRW for people without resources or establishing in which cases access to water service may not be cut off, and how to cover the costs of the people that are served for free. This situation means that each company sets its own criteria, and in some cases HRW might be undermined.
The participation and access to information includes the right to seek, receive and disseminate information on issues related to water, including hygiene, in an understandable format and through appropriate media and languages, as well as the right to participate effectively in decision‐making processes that may affect the
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exercise of the right to water. This process should affect both the most strategic decisions (eg. contracts of management services) and the ones which affect to due diligence procedures and remedial mechanisms (eg. rates, cuts by non‐payment, complaint mechanisms, etc.). In these two categories of HRW there are usually deficiencies quite frequently.
The information published by the companies about providing services is not always complete and detailed, or there are contracts with confidentiality clauses, which difficult the access and the creation of a qualified opinion that allow participation. On the other side, it is usual that when companies have to take decisions they only speak to the government, assuming they are the ones who represent the interests of users, but in many cases this assumption is false, either because administrations have not been democratically elected or because even when they had been adequately elected, they do not channel the interests or opinions of citizens suitably. In any case, it is noteworthy that some companies do have channels of communication and direct involvement with users, through staff in their offices, web pages, satisfaction surveys or suggestion boxes and claims. In other companies, the incorporation of user representatives on the board of directors of the company is also being tested.
The human right to water in engineering and construction
In engineering and construction business is usual to attend public competitions from national or international institrutions. In these cases, it is essential that the tender terms of reference incorporate the basic principles of the Human Right to Water, including affordability, information, consultation and participation of the people affected by the project. International cooperation agencies and other contracting entities may positively influence over the definition of the terms of reference of the bidding projects if they condition their funding to consistent criteria with the human right to water.
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It is necessary to incorporate in the implementation of the projects social objectives and integrate the interests of all groups, not just those of the institution that contracts the project. To take into account the social aspects of the right to water, companies must have multidisciplinary teams and professionals from different backgrounds, culture or origin, and even integrate the experience of social organizations. Interestingly, in many companies with operations in developing countries there are more and more people who have previously worked in the field of cooperation which helps to have a more social perspective and respect for human rights.
It is also important that the terms of reference for international tenders are rigorous in defining the work to contract and their economic valuation. In this regard, deficient terms of reference may result in significant overspending during the development of contracts and can generate corruption dynamics that cause the cancellation of contracts. It is also important that the bidding process and award are carried out with advertising and transparency criteria.
The enterprise risk management and human rights
The enterprise risk management is becoming an important incentive in the advance for HR respect and, more generally, in the practices of social responsibility. This is a good opportunity for companies to introduce these topics and develop due diligence procedures. However, associate business performance to only risk management for the company and not for people, has its drawbacks: it leaves out inappropriate behaviour that generates little risk to the company, may induce minor conflicts that could be easily resolved in their early stages are not addressed until they grow and pose a greater risk, or may indirectly send the message to society that to be heard and cared one must generate serious conflicts. Therefore, risk management for the
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company should be complemented by a policy of permanent dialogue with all groups directly or indirectly affected by the activity, as established by the principal methodologies of corporate social responsibility.
One case where enterprise risk management can play an important role supporting the HRW is the financing of large extractive industry projects that may affect the water. Large mining projects require investments of hundreds or thousands of millions of euros, and are usually funded with loans from financial institutions which progressively raise social and environmental requirements to avoid future risks that may hinder recovery. Beyond the extractive sector, the increasing social and environmental safeguards demanded by the international development banks also highlight.
Civil society can play an important role in helping to highlight the impacts of businesses and population risks arising from malpractice. For example, a rigorous analysis of the water resources situation before the implementation of major projects would claim more easily repairs in case of violations of HRW, and could have a deterrent effect on malpractice.
Other items of interest
There are many other topics that need to go into detail about in order to move towards respect and remedy of the human right to water by businesses.
One of them is the area of the remediation, which is the third pillar of the guiding principles and must be based on the existence of effective complaint mechanisms, whether judicial or extrajudicial. The requirement of remediation to the successor of TEXACO for damages in the Ecuadorian Amazon, with lawsuits that go on for many years in different countries, shows how difficult and costly it can be in the current legal framework.
It is also required to establish spaces and mechanisms for deepening and sharing experiences, also from the business field. In this regard, it can be highlighted the CEO Water Mandate initiative of the Global Compact of the United Nations, which is carrying out an interesting work to promote respect for the HRW among large water consuming enterprises across six key areas: Direct Operations; Supply Chain and Watershed Management; Collective Action; Public Policy; Community Engagement; and Transparency. For example, they are working on a better definition of the implications of the obligation to "respect" the HRW and thus reducing uncertainties that hinder their implementation, or analysis of the strengths, weaknesses and difficulties of directly involvement in the access projects to water and sanitation in the environment in which they operate.
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Another aspect that must be considered within the scope of the protection, respect and remedy of HRW is the public nature of water, as is explicitly acknowledged in the 15th General Comment, which states that water is a limited natural resource and fundamental for life and public health. Moreover, the Water Framework Directive of the European Union states that water is not a commercial product like any other but a heritage which must be protected, defended and treated as such. The consideration of water as a public and a common good can be a limitation to the private sector not only in relation to the management of water resources – which is a general consensus ‐ but also in the management supply systems and sanitation.
Final considerations
The business sector has begun to reflect and take steps toward incorporating the Ruggie principles in its activity. However, if respect and remedy for human rights want to be incorporated it is necessary to go beyond the statements and speeches, and move towards the establishment of resources to monitor, measure and assess the business impact on human rights.
Undoubtedly, there is a difficulty in interpreting, and especially applying, the Guiding Principles for the protection, respect and remedy of human rights in water and sanitation, but this cannot be an impediment to design specific protection mechanisms for the most vulnerable groups, and to the performance in environments with weak legal and institutional framework.
In the field of water, these mechanisms must be consistent with the framework of human right to water, being able to take advantage of good practices in this framework to the performance of companies that influence in water resources.
In addition, companies in the water sector, as well as working in line with the HRW, should also establish respect policies for HR for all of its stakeholders, for example with their workers, establishing security protocols work, decent salaries, equality and non‐discrimination policies, or administrations which they interact with, establishing strict anti‐corruption policies.
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References
- European Comission (2000). Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy
- Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twenty‐ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2002), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 105 (2003)
- Human Rights Council (2010). Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque A/HRC/15/31
- Institute for Human Rights and Business (2012). More than a resource: Water, Business and Human Rights
- Jorge Ducci (2007). Salida de operadores privados internacionales de agua en América Latina. Banco Interamericano de Desarrollo
- Philippe Marin (2009). Public‐Private Partnerships for Urban Water Utilities. A Review of Experiences in Developing Countries. Banco Mundial
- United Nations Global Compact, Pacific Institute (2010). Guide to Responsible Business Engagement with Water Policy.
- United Nations (2012). The corporate responsibility to respect human rights. An Interpretive Guide
- Sustentia (2013). Cuaderno Guía de los principios rectores ONU sobre empresa y derechos humanos. Puerta de entrada
Other items of interest:
- CEO Water Mandate, Global Compact. http://ceowatermandate.org/ - WBCSD Global Water Tool. http://www.wbcsd.org/work‐program/sector‐
projects/water/global‐water‐tool.aspx
The electronic version of this document can be downloaded at www.ongawa.org and
www.compromisoydesarrollo.org
November 2013
This work is distributed under an Attribution‐NonCommercial‐No‐Lead 2.5 Spain Creative Commons license, available at: http://creativecommons.org/licenses/by‐nc‐nd/2.5/es (license summary), http://creativecommons.org/licenses/by‐nc‐nd/2.5/es/legalcode.es (full text)
This report has been prepared by ONGAWA, Engineering for Human Development, in the framework of a project funded by the Office of Human Rights and the Spanish Agency for International Cooperation for Development (AECID), Ministry of Foreign Affairs and Cooperation. The contents of this publication are the sole responsibility of ONGAWA, and do not necessarily reflect the opinion of the Office of Human Rights or the AECID.
Translation: Noelia Uribe Pérez / Translation Team Volunteer, ONGAWA
Fotografías: © ONGAWA y © TYPSA