1 884 million people in the world do not have access to safe drinking ater More Than a Resource: Water, Business and Human Rights
2 The Institute for Human Rights and Business is dedicated to being a global centre of excellence and expertise on the relationship between business and internationally proclaimed human rights standards. The Institute works to raise corporate standards and strengthen public policy to ensure that the activities of companies do not contribute to human rights abuses, and in fact lead to positive outcomes.
3 More than a Resource Water, Business and Human Rights
4 Copyright Institute for Human Rights and Business (IHRB), 2011 Published by Institute for Human Rights and Business All rights reserved. The IHRB permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the address below. Requests for permission to reproduce or translate the publication should be addressed to the IHRB. Institute for Human Rights and Business 34b York Way London, N1 9AB UK Phone: (+44) ISBN: Design: Plain Sense, Geneva, Switzerland Printing: NBmedia, Geneva, Switzerland Cover image: Scott Prokop, Shutterstock Images About this report This report is the result of consultations and convenings involving representatives of business, government, UN agencies, civil society, academia and other experts organised by the Institute for Human Rights and Business (IHRB) on three continents. Each focused on the links between human rights and the right to water and the responsibilities of the private sector, in particular concerning water management and use. IHRB gratefully acknowledges the contribution of Liz Umlas, who prepared the initial draft of this report, drawing on the Institute s previous work. IHRB also wishes to thank Surabhi Chopra as well as Nobonita Chowdhury, Basak Mustu, Haley St. Dennis and Melanie Wan-Yen Yap, from the Human Rights Clinic at the School of Oriental and African Studies, University of London, for helpful research and background papers which are listed in the bibliography. This report has been made possible through the support of Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, the Ministry of Foreign Affairs of Finland and the GE Foundation.
5 Contents Executive Summary 1 1. Introduction 7 2. Business responsibilities relating to human rights and water Human rights due diligence and water use Implications for water and sanitation service providers Conclusions 39 Bibliography 43
7 1 Executive Summary Business and water: human rights matter This report clarifies the relationships between business, human rights and water and answers some of the key questions that arise when they are considered together. It makes the case for integrating human rights considerations, including those relating to water, into the policies and practices of business. Given the international political consensus that has developed, more generally about the responsibility of companies to respect human rights, and specifically about water as a human right, the report anticipates that governments and intergovernmental organisations will increasingly call on businesses to be transparent and accountable for their impacts in relation to water, in human rights terms. Most businesses do not yet consider water to be a social issue, and the great majority do not explicitly assess the human rights impacts of their policies and operations in this area. Current policy approaches have tended to distinguish the responsibilities of corporate water users (i.e. all businesses) from those of private water service providers (utilities that directly manage water services). This distinction is evidently relevant, but it has meant companies have tended to overlook the complexity of the policy challenges that arise in a range of sectors from mining, oil and gas, via water technologies, to manufacturing processes - where water provision is crucial, though not the primary focus of the enterprise. Partly as a result, some businesses recognise the right to water while others take a broader rights-based approach. The report highlights differences between the two approaches, making clear that each has relevance to all businesses, regardless of their function or geographic location. That the private sector has a role to play in water policy is evident, given its influence and the scale of its water consumption, and also because some businesses provide or process water for public use. The report presumes that the obligations and expectations placed on business should not be framed ideologically (either from a free market perspective or in anti-business terms, for example) but should examine the positive and negative impact that private investments will have on human rights, and in particular on the rights of those who are most marginalized and vulnerable. From this perspective, businesses have much to offer as partners of governments and civil society, particularly in regions where water is scarce and poverty widespread. This should be the foundation of publicprivate partnerships in this area, and also dialogue about the role of business at the 2012 United Nations (UN) Conference on Sustainable Development in Brazil, and efforts to meet the UN Millennium Development Goals by There is a business opportunity for responsible companies on issues relating to water and sustainable development. But companies also need to be more accountable and transparent about the impact of their activities, and to provide adequate remedies for victims of abuse.
8 2 More Than a Resource: Water, Business and Human Rights Frequently Asked Questions In what ways is water a social as well as environmental issue? Water has always been a social issue and remains one for communities around the world. It frequently has deep cultural and religious significance. When businesses engage with communities on water issues, they need to understand the relationship between access to water and human survival and dignity. Water is linked to the right to life, and other human rights such as the right to health and the right to food. In many societies, traditional water practices need to be understood and respected. What do the rights to water and sanitation mean for business? Access to clean and safe drinking water and to adequate sanitation are now internationally recognised human rights, which businesses must respect regardless of their size, sector or geographic location. Most businesses understand that they have a responsibility to ensure that their activities and impacts do not infringe rights. With regard to water, they can do harm or good in many ways. Due diligence is especially required wherever water is scarce or of poor quality, or where business activity affects the water supply of vulnerable or marginalized communities. If a business provides water or sanitation services, its responsibility to respect human rights raises additional issues with regard to tendering, negotiation of terms, the content of contracts, and post-contract operations. What is meant by a rights-based approach to water? Companies that take a rights-based approach to water consider all human rights (civil, political, economic, social, and cultural) when they set or implement water-related policies. In addition, the approach values certain principles when decisions are made and applied: these include non-discrimination and equality; participation and empowerment; and accountability and transparency. Do the responsibilities of water service providers differ from those of water users? Both water users and water service providers have a duty to respect all human rights. In relation to water, they must consider their impact on other water users, including their right to water and sanitation. The steps that businesses are expected to take in order to respect these rights will nevertheless vary, across business sectors and in different countries. Water service providers, who play a key role in providing access to water and sanitation, have specific additional responsibilities and their due diligence requirements are consequently more extensive.
9 3 What are the responsibilities of businesses that are engaged both in using and providing water? Some industries provide water as a by-product of their activities and others consume large quantities of water. Some do both. Mining companies, for example, often provide water to communities located close to their operations as an act of corporate responsibility (even though they may not have a legal obligation to do so), because they also use large volumes of water in their operations. Agriculture, the oil industry, and many manufacturing operations (from the production of silicon chips to the washing of cotton in garment production) are also heavy water-users. Businesses that focus on water technologies (filtration, pumps, desalination equipment, piping) also influence the provision of water. Policy makers have not sufficiently considered the due diligence responsibilities of companies that provide water or influence its provision as a secondary function of their operations; these companies can have a significant impact on access to water and sanitation. What is the international legal status of the right to water and to sanitation, for States and for businesses? It is important to distinguish between international legal enforceability and international recognition. Where States have ratified international instruments, such as the UN Covenant on Economic, Social and Cultural Rights, or incorporated the right to water in their national legal systems, they have a legal obligation to respect, protect, and fulfil the right. Not all States have bound themselves legally by treaty to respect the right to water, but, unsurprisingly given its strategic importance and the fact that water is necessary for survival, there is virtually no opposition in principle: the right to access safe clean drinking water and adequate sanitation is now an internationally recognised right and very broadly endorsed. 1 Companies are not bound directly by international treaties, which States sign, though it is part of a state s obligation to ensure that companies respect human rights and comply with domestic legislation. Both companies and governments, however, increasingly recognise that all business enterprises have a responsibility to respect human rights, and in some degree to promote and protect them. The most recent statement of responsibility, the UN Guiding Principles on Business and Human Rights, was endorsed by consensus at the UN Human Rights Council in June 2011, having obtained the consent of a large number of companies during a long process of detailed consultation. The principles apply to all businesses and cover all internationally recognised rights. 1 The most recent UN vote took place in July 2010, when 122 States supported a UN General Assembly resolution (64/292) that recognised the right to water and sanitation. No state opposed the resolution, which was subsequently endorsed by the UN Human Rights Council (A/HRC/15/L.14 ) in September 2010, again without opposition.
10 4 More Than a Resource: Water, Business and Human Rights Given this level of affirmation, it is appropriate for all governments, businesses, intergovernmental organisations, trade unions, and civil society organisations to take account of the right to water and sanitation wherever the corporate responsibility to respect human rights is discussed or evaluated. What implications are there for the relationship between business and government? Governments are primarily responsible for the fulfilment of human rights. However, businesses can make a specific and valuable contribution, including to the provision of water and sanitation. The relationships between businesses and government reflect this. A company s due diligence procedures should ensure that it considers all its human rights impacts when it negotiates, drafts or signs Supplier Agreements, Customer Service Contracts, Joint Venture Agreements or Public Private Partnerships. What responsibilities do businesses have when governments are unwilling or unable to fulfil the right to water or protect against human rights abuses? Businesses must take enhanced due diligence measures when operating in contexts where human rights risks are high because of conflict, acute poverty, natural disasters or corruption. If a state cannot fulfil its human rights duties, it cannot delegate the legal obligation to a private actor, such as a company, although it may delegate the task of delivery to a company, while retaining the obligation to regulate its conduct. Furthermore, businesses are expected, and in some circumstances required, to take positive steps to ensure that they do not become complicit in human rights abuses, including of the right to water and sanitation. What obligations do businesses have with regard to women, children, indigenous peoples and other groups at risk? States have a duty to protect vulnerable groups, including their access to water and sanitation. 2 Such groups should also be included in decision-making. Women and children fetch most of the water used by households in rural areas and this work often prevents them from attending school or working at a job. 3 On average, women and children in Africa and Asia walk six kilometres (3.7 miles) a day in search of water and carry heavy loads (up to 20 litres), yet women are under-represented in most community and state-based decisionmaking mechanisms that influence water use and management. Indigenous peoples, also enjoy specific protections, including of traditional methods of water management. 4 In situations of conflict, civilians have specific rights under international humanitarian law, which protect their access to water, regardless of land or property ownership. 2 See for example, Article 14 of the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and Article 24 of the UN Convention on the Rights of the Child (CRC). 3 At: 4 See for example Article 25 of the UN Declaration on the Rights of Indigenous Peoples.
11 5 What are the obligations of signatories of the UN Global Compact? The UN Global Compact 5 states that signatories should support and respect the protection of internationally proclaimed human rights and make sure they are not complicit in human rights abuses. Since the right to water and sanitation is internationally recognised, companies that endorse the UN Global Compact should take account of the right and report on it in their annual reports on progress. Though all businesses are expected to demonstrate respect for human rights by ensuring that their due diligence procedures follow the guidelines set out under the UN Protect, Respect, Remedy Framework on Business and Human Rights, companies that have endorsed the UN Global Compact have a created a heightened expectation because they have voluntarily and publicly undertaken to support and respect human rights. What are the obligations of companies that endorse the CEO Water Mandate? By definition, companies that endorse the UN-supported CEO Water Mandate are signatories of the UN Global Compact and therefore committed to support and respect the right to water and sanitation. 6 Some differences of perspective between members have delayed the progress of what, in other respects, is a leadership group on issues of water policy and practice. The Mandate s support of a strong regulatory framework for water-related public policies is nevertheless encouraging, as are its recognition of important principles, such as inclusiveness, accountability and transparency, and the role of the public as well as the private sector. Water has become a social licence to operate issue for business. Communities and private individuals will lay claim to freshwater resources even if they have no access to them, or they will assume such resources are for the common good. A business developing new access to this water, or using large amounts of it, will need to demonstrate that it is doing so legitimately. Creating access to water will inevitably encourage rights-holders to claim their human rights in relation to water, even if it is not the duty of a company to provide this. This is the central human rights dilemma for business in relation to water, and one which requires much more due diligence in approach and greater transparency by business generally. 5 The UN Global Compact, launched in 2000, is the world s largest corporate citizenship initiative. It is a voluntary programme that fosters adoption by the private sector of ten principles (relating to human rights, labour, environment and corruption). At: 6 The CEO Water Mandate is a public-private initiative launched in It assists companies to develop policy and practice on sustainable water management. Open to UNGC members, it covers six areas, including operations, the supply chain, watershed management and public policy. Members are required to produce annual progress reports. At:
13 7 1. Introduction The global water challenge Meeting the world s water and sanitation needs has become an urgent challenge. There has been progress: according to the United Nations (UN), since 1990 some 1.7 billion people have gained access to safe drinking water. Four regions (Northern Africa, Latin America and the Caribbean, Eastern Asia, and South-Eastern Asia) have met or are on track to meet UN Millennium Development Goal targets for access to clean water by 2015; Sub-Saharan Africa is the major exception. Despite this progress, nevertheless, nearly half the developing world over 2.5 billion people continues to lack improved sanitation facilities, and close to 900 million people still use sources of drinking water that are unsafe. Women spend over 200 million hours per day collecting water for domestic use. 7 Up to half the world s population (over 3 billion people) still lack adequate access to clean drinking water and adequate sanitation. The First Preparatory Committee 8 for the 2012 UN Conference on Sustainable Development has signalled that water scarcity is one of the key global challenges the Summit will address. In his report, the Chair stated: Many highlighted water availability as a pressing concern due to the increasing scarcity of water resources, combined with ever increasing demands for water from multiple sectors. Though a range of efforts have been initiated, further action is imperative, especially considering the multiple drivers on water usage and the added complication of climate change impacts through the water cycle. About the role of business, the report said: Some countries stressed the importance of the private sector for achieving sustainable development goals, and highlighted the role of public-private partnerships for delivering positive social and environmental outcomes, as well as the role of Corporate Social Responsibility in this regard. Indeed, in 2010, nearly two thirds of the top 500 companies in the FTSE Global Equity Index Series were surveyed by the Carbon Disclosure Project 9 on behalf of 137 investors with assets of US$16 trillion. The 2010 report on Water Disclosure concludes that companies are giving increasing importance to the role water plays in an organisation s license to operate, particularly in areas that are water-stressed or that are likely to become so. However, human rights receive scant mention in this and other corporate reports relating to water which are still dominated almost completely by the environmental paradigm. 7 At: 8 Prep. Comm 1, May 2010, New York. 9 Carbon Disclosure Project, CDP Water Disclosure 2010: Global Report, written by ERM, London. At: https://
14 8 More Than a Resource: Water, Business and Human Rights Significant developments with respect to water can also be noted in the field of international human rights. In 2010, the UN General Assembly and Human Rights Council both recognised in separate resolutions that the right to water and sanitation is a human right, an important step towards giving this right the highest level of international legitimacy. 10 In the same year, the UN independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation (hereafter the Independent Expert) issued a number of important policy reports. 11 These clarified state and non-state actor responsibilities in this area. Finally, in June 2011 the UN Human Rights Council unanimously endorsed Guiding Principles for States and businesses to implement the UN-endorsed Protect, Respect, Remedy policy framework on business and human rights. This document provides authoritative guidance that has explicit relevance to water and sanitation issues. Universal recognition of water as a human right The right to water is considered a treaty obligation because it is included under the right to health and the right to food. The UN Committee on Economic, Social and Cultural Rights made this clear in a General Comment (2002) on the right to water. The right to water is therefore legally binding on States that have ratified the International Covenant on Economic, Social and Cultural Rights. Not all States have bound themselves legally by treaty to respect the right to water, but unsurprisingly, given its strategic importance and the fact that water is necessary for survival, there is virtually no opposition to it in principle. Given the UN vote in July 2010, when 122 States, with none opposed, supported a UN General Assembly resolution (64/292) that recognised the right to water and sanitation, which was subsequently endorsed by the UN Human Rights Council (A/HRC/15/L.14 ) in September 2010, again without opposition, the right to access safe clean drinking water and adequate sanitation is now an internationally recognised right, very broadly endorsed, even if the right is not legally enforceable in every jurisdiction. For example, a speech given by a senior representative of the United States (US) State Department in March 2011 underscored the importance of economic, social and cultural 10 UN General Assembly (2010), Resolution 64/292 of 28 July 2010; UN Human Rights Council (2010), Resolution A/HRC/15/L.14 of 24 September UN Human Rights Council (2010), Report of the Independent Expert on the issues of human rights obligations related to access to safe drinking water and sanitation, Catharina de Albuquerque, Human Rights Council, 15th Session, 29 June 2010 (A/HRC/15/31); UN General Assembly (2010), Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, Report of the Independent Expert on the issues of human rights obligations related to access to safe drinking water and sanitation, General Assembly, 65th Session, 6 August 2010 (A/65/254). At: 477/84/PDF/N npdf?openelement.
15 9 rights. 12 The US Government has signed but not ratified the UN Covenant on Economic, Social and Cultural Rights and has made clear that as a signatory, it is committed to not defeating the object and purpose of the treaty, which, as has been noted, includes the right to water as part of the rights to health and food. It should also be noted that as a participating member of the United Nations and its human rights procedures, the US government recognised the right to water because it acknowledged the UN resolutions adopted in Finally, international humanitarian law also confers universal responsibility with regard to water in situations of armed conflict. International legal experts contend that parties to the conflict have specific obligations to ensure that civilians access goods that are indispensable to their survival, including drinking water. Linking water and sanitation Some business initiatives have distinguished water from sanitation. It is therefore important to consider why global policies link water and sanitation and why corporations should do so too. It is evidently logical to link water and sanitation because adequate sanitation is clearly an impossible goal without access to safe, clean water. In addition, other human rights, such as the right to an adequate standard of living and the right to health, both underpin the right to water and sanitation, and depend on water and sanitation for their achievement. Reflecting this, and numerous efforts around the world to improve hygiene and prevent disease, the targets set by the UN Millennium Development Goals in 2000 combined water and sanitation. 13 The Committee on Economic, Social and Cultural Rights subsequently adopted a single General Comment in 2002 on the right to water and sanitation. 14 When the UN Human Rights Council created a UN Independent Expert in 2008, she was similarly asked to explore both issues. 15 Finally the 2010 UN resolutions on the right to water also addressed sanitation. Progress towards halving the number of people without access to safe, clean drinking water has nevertheless far outstripped progress on sanitation. 16 For example, 26 African nations are currently on track to reduce by half the number of people without sustainable access to clean drinking water by Yet only five countries in Africa are expected to 12 Speech given on 24 March 2011 by Michael H. Posner, Assistant Secretary, Bureau of Democracy, Human Rights and Labor, US Department of State, The Four Freedoms Turn 70, Washington, DC. At: uspolicy.be/headline/assistant-secretary-posner-%e2%80%9cfour-freedoms-21st-century%e2%80%9d. 13 MDG Goal 7 on Environmental Sustainability contains the following Target (7.C): Halve by 2015 the proportion of the population without sustainable access to safe drinking water and basic sanitation. UN Millennium Development Goals. At: 14 UN Committee on Economic, Social & Cultural Rights, 2002: UN ESCOR, 29th Session, Agenda item 3, UN Doc. E/C 12/2002/11, UN Human Rights Council, Resolution 7/22 of 28 March 2008, Human Rights and Access to Safe Drinking Water and Sanitation. At: 16 WHO and UNICEF (2010), Progress on Sanitation and Drinking Water, Geneva/New York, April At:
16 10 More Than a Resource: Water, Business and Human Rights attain the MDG target on sanitation. 17 There are many reasons for this. Most are linked to lack of resources and poor access to relevant technology. However, the stigma associated with defecation also hinders the development of public policy. In many cultures, it is difficult, even taboo, to discuss the disposal of human waste. Behaviour and attitudes need to change as well as sanitation facilities, which takes time. 18 When businesses engage in human rights issues, water and sanitation should be understood as a single imperative, part of a wider societal and public health agenda which, if not addressed, has the potential to harm their operations. It may be more difficult for companies that are not directly engaged in the provision of water and sanitation services to identify their impacts on water supply and sanitation. Nevertheless, sensible efforts can be made to assess risk and evaluate impact, both in markets and around operating facilities. Issues that might deserve examination include workplace hygiene, access to sanitation facilities, and wider community concerns that are relevant not only to the health of employees and their families but to communities that are touched by company activity. Section Two outlines the human rights responsibilities of business enterprises relating to water, including the relevance of the UN Protect, Respect, Remedy framework. It explores the value of applying a rights-based approach to water use and provision of water and sanitation, and recommends that a company should embrace principles of non-discrimination, participation, accountability and transparency when it engages with stakeholders on water issues. Section three sets out baseline responsibilities that all businesses have with regard to water use. It describes human rights due diligence procedures that companies should put in place, covering policy, impact assessment, integration, performance monitoring, and provision of remedies. It also discusses issues that need to be considered when companies operate in areas of poor governance, and wider public policy considerations with regard to responsible water use. Section four focuses on companies that provide water and sanitation services, and their human rights due diligence obligations across their operations. The concluding section offers a number of recommendations that address all companies that are water users as well as companies that provide water and sanitation services, and those that participate in international multi-stakeholder initiatives that are relevant to water. 17 UN Environment Programme (2010), Africa Water Atlas, Division of Early Warning and Assessment (DEWA) United Nations Environment Programme (UNEP), Nairobi, Kenya. 18 For more on the policy obstacles to sanitation reform, see Overcoming the sanitation stigma: An interview with author Rose George, Circle of Blue, 24 November At: 2008/world/africa/overcoming-the-sanitation-stigma-an-interview-with-author-rose-george/.
17 11 2. Business responsibilities relating to human rights and water The UN Protect, Respect, Remedy framework on business and human rights In 2008, the UN Human Rights Council unanimously welcomed a policy framework developed by the UN Special Representative on business and human rights, Professor John Ruggie. 19 This marked the first time that a UN intergovernmental body had taken a substantive position on the issue of business and human rights. The Protect, Respect, Remedy framework sets out state duties and corporate responsibilities in regard to human rights and affirms that both States and businesses need to provide access to effective remedies for victims of human rights abuse. The UN framework requires companies to avoid infringing the human rights of others and to address adverse impacts that result from their policies or operations. The responsibility to respect human rights exists independently of a state s obligations under international human rights law. It is a norm that applies to businesses whatever States do or fail to do. The corporate responsibility to respect also applies to all internationally recognised human rights, regardless of the size of the company, its origin, or the context in which it operates. The framework, in addition to being endorsed by the Human Rights Council, has been widely welcomed by States, civil society, trade unions and the business community. The International Chamber of Commerce, the International Organisation of Employers and the Business and Industry Advisory Committee to the OECD were among the many business organisations that issued supportive statements, in addition to individual companies and national employers organisations. 20 The UN Protect, Respect, Remedy framework on business and human rights The framework rests on three pillars that are mutually supportive: The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; The corporate responsibility to respect human rights, which in essence means to act with due diligence to avoid infringing on the rights of others; and Provision of effective judicial and non-judicial remedies for victims. 19 Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises. 20 UN Human Rights Council (2009), Business and Human Rights: Towards Operationalizing the Protect, Respect and Remedy Framework, Report of the Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Geneva (A/HRC/11/13), 22 April 2009.
18 12 More Than a Resource: Water, Business and Human Rights The United Nations Guiding Principles In 2008 the UN Human Rights Council requested the Special Representative to develop guiding principles that would operationalise the Protect, Respect, Remedy framework. In June 2011 the Human Rights Council unanimously endorsed the Guiding Principles put forward by the Special Representative. Their acceptance marked an important step towards defining the nature and extent of business responsibilities with regard to human rights. They also shed light on the duties of States and the responsibilities of business in relation to water and sanitation. A number of the Guiding Principles are directly relevant to water service management (including sanitation). For example, the Commentary to Guiding Principle 5 (relating to States) says: States do not relinquish their international human rights law obligations when they privatize the delivery of services that may impact upon the enjoyment of human rights. Guiding Principles cover the corporate responsibility to respect human rights and set out a policy and due diligence framework which businesses should use to assess risks, impacts and report. All are directly relevant to due diligence in relation to water use, and to the specific responsibilities of water service providers. Section Three looks more closely at these Principles and explores how they apply to the use of water by business enterprises. Guiding Principles set out principles that should underpin judicial and nonjudicial mechanisms that provide remedies for abuses involving business enterprises. They are directly relevant to companies whose activities affect the access of individuals or communities to water and sanitation. Rights-based approaches to water and sanitation According to the Office of the UN High Commissioner for Human Rights (OHCHR), a human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress. 21 OHCHR points out there are two main rationales for applying a human rights-based approach to development challenges: one intrinsic (it is the right thing to do ), the other instrumental (it leads to better and more sustainable human development outcomes and helps resolve conflicts among stakeholders). In practice, both motives are usually in play. 21 United Nations Office of the High Commissioner for Human Rights (OHCHR), Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation, At: Publications/FAQen.pdf.
19 13 Adopting a rights-based approach also strengthens policy formation and performance by defining roles and responsibilities clearly, setting minimum standards, and encouraging the participation and involvement of all those who have a legitimate interest. 22 For all these reasons, it has value for States and businesses alike. Although originally intended primarily for governments, a rights-based approach sets out principles that can assist companies in assessing the legitimacy of their policies and practices. In particular, they clarify how a business should relate to other stakeholder groups. A rights-based approach will help ensure that: Companies integrate all internationally recognised human rights in their policies and their activities, and consider every human being to be a rights-holder. States (which have the primary responsibility to respect, protect and fulfil human rights) prevent corporations from abusing or undermining human rights, and hold them accountable if they are involved in abuses. Adequate, accessible and appropriate remedies are made available to every victim of corporate human rights abuse. At least one government has already sought to apply a rights-based approach to issues of water and sanitation. The following are seen as being particularly relevant in this context: 23 Non-discrimination and equality As part of their responsibility to respect human rights, businesses should consider how women, children and marginalised groups are or may be affected by business activities, and forms of social discrimination. With respect to water, concerns may include water collection, hygiene, and access to sanitation. Participation and empowerment Decision-making processes relating to water and sanitation (for example, the setting of tariffs), should be open to participation at different levels and within formalized structures. 24 This may require assisting or enabling poor and marginalized individuals and communities to engage effectively. 22 GTZ and German Federal Ministry for Economic Cooperation and Development, The Human Right to Water and Sanitation: Translating Theory into Practice (December 2009), pp At: dokumente/gtz2009-human-right-to-water-and-sanitation.pdf. 23 The following paragraphs are based on the German Government publication listed in footnote Ibid., p. 6.
20 14 More Than a Resource: Water, Business and Human Rights Accountability and transparency Transparency helps to ensure overall integrity by increasing the private sector s accountability to stakeholders. 25 It is particularly relevant to the contracting and reporting relationships between businesses and States (see Sections Three and Four). Effective accountability implies the possibility of legal redress before a court or other adjudicator for those whose rights are compromised. The remedy principles within the UN Protect, Respect, Remedy framework are also highly relevant here. Neither States nor businesses should consider a rights-based approach to water and sanitation to be a political or box-ticking exercise. It is designed to create conditions in which human rights are integrated within policies on water use and provision in a manner that protects the entitlements of those who are poorest and most disadvantaged. The right to water and sanitation The July 2010 UN General Assembly resolution on the right to safe and clean drinking water and sanitation makes clear this is a human right that is essential for the full enjoyment of life and all human rights. 26 A UN Human Rights Council resolution of September 2010 also referred to international human rights instruments (including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities) which set out state obligations with regard to safe drinking water and sanitation. These resolutions built in part on the general comment by the UN Committee on Economic, Social and Cultural Rights in 2002 (see Text Box below). 27 The Human Rights Council resolution on access to safe drinking water and sanitation 28 acknowledged that States may opt to involve non-state actors in the provision of safe drinking water and sanitation services and have an international duty when doing so to ensure that businesses (and other non-state actors) meet their human rights responsibilities. Specifically, the resolution makes clear that States to ensure that nonstate actors: Fulfil their human rights responsibilities across the range of their activities, not least by engaging proactively with the State and stakeholders to detect potential human rights abuses and find solutions to address them; Contribute to the reliable provision of safe, acceptable, accessible, and affordable drinking water, and provide sanitation services of good quality and sufficient quantity; 25 Ibid., p UN General Assembly (2010), Resolution 64/292 of 28 July General Comment 15, UN Doc. E/C 12/ 2002/ UN Human Rights Council Resolution A/HRC/15/L.15 of 24 September 2010.
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