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Incorporating social rights in development: transnational corporations and the right to water

Published online by Cambridge University Press:  04 February 2011

Anna F. S. Russell
Anna F. S. Russell*
Affiliation:
University of Oxford
*
anna.russell@law.ox.ac.uk
Rights & Permissions [Opens in a new window]

Abstract

In attempts to improve the efficiency of development efforts over the past few decades private sector participation in the delivery of basic services has been promoted to a varying extent. Roughly in tandem with this, there has been movement to increase the accountability of corporations, particularly transnational corporations (TNCs), for human rights violations. Rather than engaging directly in the legal debate about the applicability of human rights standards to corporate activity, this article essentially looks at the issue from the inside out through the collection of empirical evidence. By focusing on the emergent right to water as a case-study, it examines how TNCs engaged in water service delivery in the development context understand and use the language of rights. In doing so, it discusses how current engagement by the TNCs with human rights language may influence proposed corporate human rights accountability frameworks and current attempts to close the globalisation governance gap.

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Type
Articles
Information
International Journal of Law in Context , Volume 7 , Issue 1 , March 2011, pp. 1 - 30
Copyright
Copyright © Cambridge University Press 2011

Transnational corporations, international development and human rights

Introduction

In the 1980s, the neoliberal agenda shifted the focus of development efforts from economic growth with equity towards efficiency and the productive allocation of resources. Around this time, private sector participation in previously state run enterprises, including those involving the provision of essential services, was particularly encouraged.Footnote 1 Essentially, a ‘tidal wave of privatization’ was unleashed with private actors taking over the delivery of services related to social welfare, education, health care, water, gas, electricity and so on.Footnote 2 Furthermore, the emphasis on deregulating the global market-place, liberalising trade and encouraging foreign investment resulted in a gross expansion of the presence of transnational corporations (TNCs) in developing countries. Although the 1990s onwards has seen somewhat less aggressive privatisation reforms, private sector participation in development activities is still encouraged as a means of improving market efficiency and delivery performance. The presence of these corporations in the development context therefore remains strong. Even today, TNCs are playing an increasingly visible role in both international and domestic policy-making.

Partially as a result of the increased presence of TNCs in the development context there has been movement to make existing state based human rights standards applicable to corporate activities and to improve the accountability of corporations for human rights violations. In tandem with the growing notion of responsible corporate citizenship, the evolution of international law beyond the classic model of interstate relations through the development of the international human rights regime arguably has been also laterally pushed towards non-state actor application, including TNCs.Footnote 3

Discussions about the application of international human rights standards to corporations have historically been in the context of labour rights, civil and political rights and, more recently, environmental health rights.Footnote 4 Research and broader deliberation regarding corporate responsibility and social rights has tended to be more limited.Footnote 5 Therefore, by focusing on the emergent right to water, this article examines how transnational corporations engaged in water service delivery in the development context understand and use the language. After outlining initiatives in the international arena to hold TNCs accountable to human rights standards, and then explaining the design of the empirical investigation, it examines how the right to water is viewed and used by these corporations. In doing so, it provides evidentiary insight into the ‘TNC and human rights debate’ and raises broader questions about their current engagement with human rights language, as well as the effectiveness of various mechanisms aimed at improving corporate human rights accountability more generally.

Background

Historically, ‘upholding internationally recognized human rights based on declarations and treaties has not been not viewed as part of business activity’.Footnote 6 During the 1970s and 1980s, however, the United Nations (UN) undertook efforts to adopt an international code of conduct outlining the international legal obligations of TNCs. Although the attempt was unsuccessful, in 1976, the Organisation for Economic Co-operation and Development (OECD) established Guidelines for Multinational Enterprises designed to promote responsible business conduct,Footnote 7 and in 1977 the International Labour Organisation (ILO) adopted its Tripartite Declaration of Principles concerning Multinational Enterprises.Footnote 8 The subsequent rise of corporate social responsibility in the following decade led to the adoption of various voluntary codes for businesses.Footnote 9 Prior to these initiatives, however, ‘there was very little focus on the role of business in respecting human rights’.Footnote 10

It was not until 2000 that what has been described as the world's largest corporate social responsibility initiative,Footnote 11 the Global Compact, was launched by the UN. It encourages companies to voluntarily support universal principles in the areas of human rights, labour, the environment and anti-corruption. The Global Compact was not designed to police or enforce the actions of business, but rather relies on ‘public accountability, transparency and the enlightened self-interest of companies’. The first two principles state respectively that ‘[b]usiness should support and respect the protection of internationally proclaimed human rights’ and ‘make sure that they are not complicit in human rights abuses’.Footnote 12 Principle 1 means that ‘the business community has a responsibility to uphold human rights both in the workplace and more broadly within its sphere of influence’, while Principle 2 means that a company need not actually cause the abuse, but could simply assist or encourage the abuse to be found complicit in it.Footnote 13 The voluntary nature of the initiative and the fact that business is not bound to follow minimum human rights standards resulted in dissatisfaction with the Global Compact by many human rights organisations.Footnote 14

In 2003, the UN Sub-Commission on the Promotion and Protection of Human Rights approved the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.Footnote 15 Claimed to be the first non-voluntary initiative accepted at the international level that would hold corporations accountable to international human rights standards, the Norms have been stated to provide a ‘comprehensive restatement of international legal principles applicable to businesses with regard to human rights, humanitarian law, environmental law etc’.Footnote 16 Recognising the primary responsibility of states to protect human rights, the Norms go on to state that ‘within their respective spheres of activity and influence’ TNCs ‘have the obligation to promote, secure the fulfillment of, ensure respect of and protect human rights recognized in international, as well as national law’.Footnote 17 To assist with implementation of the Norms, TNCs would be required to adopt internal rules of operation, as well as be subject to periodic monitoring by the UN.Footnote 18

In 2004, however, the UN Commission on Human Rights expressed the view that while the Norms contained ‘useful elements and ideas’, they have ‘no legal standing’.Footnote 19 The Commission later requested the UN Secretary-General to appoint a special representative on the issue of human rights and transnational corporations for an initial two-year period.Footnote 20 In 2005, the Economic and Social Council (ECOSOC) approved the Commission's request.Footnote 21

Part of the mandate of the special representative was to clarify standards of corporate responsibility and accountability for transnational corporations with regard to human rights.Footnote 22 In an interim report, the special representative found that the Norms cannot directly bind business ‘because, with the possible exception of certain war crimes and crimes against humanity, there are no generally accepted international legal principles that do so’.

‘… What the Norms have done, in fact, is to take existing state-based human rights instruments and simply assert that many of their provisions now are binding on corporations as well. But that assertion has little authoritative basis in international law – hard, soft or otherwise.

All existing instruments specifically aimed at holding corporations to international human rights standards … are of a voluntary nature.’Footnote 23

Questioning the claim that international law has transformed to the point where international human rights attach direct obligations to corporations, the special representative went on to note that companies are constrained not only by legal standards, but also by social norms and moral considerations.Footnote 24

In a later report, submitted to the UN Human Rights Council in February 2007, the special representative concluded that states have a duty to protect against human rights abuses by business entities within their jurisdiction, but that current guidance from the treaty body committees suggests that states are not required to exercise extra-territorial jurisdiction over business abuse.Footnote 25 The special representative described how corporate accountability for international crimes was being shaped by both the expansion of individual responsibility by international criminal tribunals, as well as the extension of responsibility for such crimes under domestic law.Footnote 26 He reiterated that international human rights instruments do not impose direct legal obligations on corporations, but that corporations remain under growing scrutiny by international human rights mechanisms.Footnote 27 The special representative highlighted the important role of soft law mechanisms in regards to standard setting, enhancing accountability and contributing towards evolving social expectations.Footnote 28 The role of self-regulation, through, for example, the adoption of human rights policies, including its weaknesses, was also discussed.Footnote 29

After an initial extension of his mandate, in April 2008, in an attempt to anchor further the business and human rights debate, the special representative presented a conceptual and policy framework to help guide relevant actors.Footnote 30 Known as the ‘protect, respect and remedy’ framework, it discusses the duty of the state to protect against human rights abuses by third parties, including business, the corporate responsibility to respect human rights, and the need for more effective access to remedies.Footnote 31 The three principles are described as being complementary and together aimed at reducing the governance gap created by globalisation.Footnote 32 The special representative explained that in regard to the duty of the state to protect against human rights abuses by business, states should foster a corporate culture respectful of human rights both at home and abroad, as well as improve domestic policy coherence in the area. At the international level, it was explained that UN human rights treaty and charter mechanisms can also further state implementation of this obligation, as can interstate co-operation.Footnote 33 In addition to complying with national laws, as a baseline, companies are to respect all human rights. Discharging this responsibility means exercising due diligence. This process should include companies adopting a human rights policy and integrating it throughout the company, undertaking human rights impact assessments, and tracking ongoing developments through both monitoring and auditing processes.Footnote 34 Improving access to remedies involves strengthening the use of both judicial mechanisms (e.g. new tools in both civil and criminal law, non-traditional jurisdictional platforms) and non-judicial mechanisms (e.g. national human rights institutions, multi-stakeholder initiatives, company level grievance procedures). It was also explained that the spread of information about such grievance mechanisms would be beneficial.Footnote 35

The ‘protect, respect and remedy’ framework was unanimously welcomed by the Human Rights Council in its June 2008 session. The Council extended the special representative's mandate for another three years, tasking him with ‘operationalizing it’ and providing ‘practical recommendations’ on its implementation.Footnote 36 In his April 2009 report, after first discussing the recent economic crisis, the special representative outlined a number of business related policy areas relevant to states fulfilling their duty to protect human rights from third-party abuse. While states have discretion as to how to fulfil the duty, they may be in breach of their obligation if they do not take appropriate steps to prevent or address it. Ways to do so (some of which are mentioned in earlier reports) may involve home states encouraging their companies abroad to respect human rights; improving both domestic and international policy coherence; adopting corporate responsibility policies; integrating more public interest considerations into national corporate laws; reducing constraints in investment and trade agreements on a host government's ability to meet its human rights obligations; and enhancing use of existing interstate forums to increase international awareness, capacity building and problem solving.Footnote 37

Elaborating further on the corporate responsibility to respect all human rights, the special representative explained that factors to consider in determining whether due diligence has been adhered to include the context in which the business activity takes place, the impacts of the company's activities within that context, and whether the company might contribute to abuse through relationships connected to its activities.Footnote 38 It was noted that the meaning of human rights in the business context still needed to be demystified in practice; exercising due diligence requires positive acts on behalf of companies; the responsibility to respect is only a baseline responsibility and companies may undertake additional commitments; and further clarification is needed in situations where companies face a contradiction between national and international law. It was further explained that due diligence requires a proactive attempt to uncover human rights risks over the entire life-cycle of a project; may vary according to the size of the business and its role; may or may not be folded into existing due diligence processes; and if done properly should mitigate risks and not lead to disingenuous lawsuits.Footnote 39

The special representative went on to explain that part of the state duty to protect and the corporate responsibility to respect human rights involves providing access to effective remedies. States may provide such remedies through judicial, administrative, legislative or other means, and may be required to provide suitable reparation, including compensation, to victims. This state obligation is distinct from the individual right to remedy recognised in various human rights conventions. It was explained that judicial and non-judicial remedial mechanisms are not always mutually exclusive, but more typically interactive. Each has its own advantages and disadvantages, and complainants should have a range of options from which to choose. Often there are significant barriers to accessing effective judicial remedies (e.g. cost, capacity, enforcement), which need to be addressed with special attention paid to vulnerable groups. With respect to non-judicial mechanisms, the special representative noted that the complexity of company-level grievance mechanisms may vary depending on the extent of companies' likely impacts; national-level mechanisms, such as human rights institutions or OECD national contact points, may be increasingly relied upon; and international mechanisms, such as grievance mechanisms in industry codes and multi-stakeholder initiatives and other international institutions, may provide potential avenues of recourse.Footnote 40

In April 2010, the special representative outlined further steps towards operationalising the ‘protect, respect and remedy’ framework.Footnote 41 Five priority areas were identified for states to achieve greater policy coherence and effectiveness in fulfilling their duty to protect human rights. First, states should safeguard their ability to meet human rights obligations in the pursuit of other policy objectives. Examples include ensuring that bilateral investment treaties allow for bona fide public interest measures, including human rights protection, and that host government agreements allow for sufficient policy space to pursue human rights obligations. Second, states should consider human rights when they engage in transactions with businesses, whether it be as owners, investors, insurers, procurers or in other capacities. Third, states should foster rights respecting corporate cultures by adopting Corporate Social Responsibility (CSR) guidelines or policies that explicitly refer to human rights standards; encouraging or requiring companies to report on human rights policies and impacts; specifying directors' duties so that they may best oversee their company's respect for human rights; and recognising the corporate culture of companies as a factor at the prosecution or sentencing stage in criminal law. Fourth, states should devise innovative policies to guide companies operating in conflict affected areas. Fifth, states should examine the cross-cutting issue of extra-territorial jurisdiction, including the regulation of actors or activities abroad, as well as the regulation of domestic measures with extra-territorial implications, and distinguish what measures may be permissible and what measures may be problematic under international law.Footnote 42

The special representative reiterated that the corporate responsibility to respect all human rights applies to all companies in all situations, and exists independently of a state's duty or capacity. The core human rights treaties provide an authoritative list of internationally recognised rights to respect, but further standards may also need to be considered in certain situations (e.g. international humanitarian law, standards specific to ‘at risk’ or vulnerable groups). Additional responsibilities in specific circumstances, such as contracts with public authorities, may also be required. The special representative explained that companies may need to be proactive about legal compliance in the area of human rights, including in weak governance zones, where there is a possible materiality of human rights related risks that would require disclosure under corporate law, and where there is a risk of corporate complicity in international crimes. After repeating what components a company's human rights due diligence process should consist of, it was explained that company-level grievance mechanisms not only provide the company with feedback that helps identify risks and avoid disputes escalating, but also provide a remedy. In general, implementing the components of due diligence is to be an ongoing and dynamic activity, involve meaningful engagement with affected individuals and communities, and require some transparency and accessibility to stakeholders.Footnote 43

Under the topic of improving access to effective remedies for victims of corporate human rights abuse, the special representative commented that company-level mechanisms remain underdeveloped. Such mechanisms could be provided directly by a company, through collaborative arrangements with other companies or organisations, or by enabling recourse to a mutually acceptable external body. All non-judicial human rights mechanisms should meet the principles of legitimacy, accessibility, predictability, equitability, rights compatibility and transparency. State based non-judicial mechanisms (e.g. national human rights institutions, OECD national contact points) were also noted to be frequently overlooked both with respect to their complaints handling role and their role in promoting human rights and providing support to companies and stakeholders. State based judicial mechanisms are to be independent and demonstrate integrity. It was stressed that more clarity is needed regarding questions of responsibility of parent companies for harm caused by subsidiaries; adjudicative extra-territorial jurisdiction in cases involving the foreign operations of multinational corporations; and how state prosecutors can investigate large companies when it requires significant expertise, resources and political will. The special representative explained that various practical obstacles are particularly problematic for victims trying to access judicial remedies. These include the costs of obtaining legal advice and of an unsuccessful case; limitations on who can bring a suit (i.e. standing) and limitations on the ability to bring group claims for compensation; and financial, social and political disincentives for lawyers to represent such claimants. Finally, it was noted that industry based, multi-stakeholder initiatives and global framework agreements may increase the reach and decrease the cost of complaint mechanisms, and that institutional mechanisms may strengthen common standards internationally. With all of these remedial mechanisms, special attention should be given to their differential impact on vulnerable groups.Footnote 44

Empirical investigation

Instead of engaging directly in a legal analysis about the applicability of international human rights standards to corporate activities, including the asserted corporate responsibility to respect human rights through the exercise of due diligence, this article adopts much more of a socio-legal approach, and essentially looks at the issue from the inside out. As mentioned above, there exists little academic research into the corporate perspective and the business sector's perceived understanding of human rights, particularly social rights. Accordingly, the following paragraphs explain the design (including the limitations) of the empirical investigation into how TNCs engaged in the delivery of basic services understand the language of human rights.

The case-study of the right to water

Due in part to the more limited research and debate on corporate responsibility and social rights, as compared with civil and political rights, it was decided to focus the investigation on the former.Footnote 45 The right to water was selected as a case-study primarily because of the timing of its explicit articulation in the international arena. There is no express recognition of the right in the main international human rights treaties adopted in the 1960s.Footnote 46 However, in 2002, the UN Committee on Economic, Social and Cultural Rights (CESCR) adopted General Comment No. 15, which states that the right to water clearly falls within the category of guarantees essential for securing an adequate standard of living (Article 11) and is inextricably related to the right to the highest attainable standard of health (Article 12) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 47 When the General Comment came out in 2002, it essentially acted as a catalyst for a ‘right to water norms cascade’ and increasing the right's previously scarce recognition at both the international and national levels. Since then, not only has the right to water been formally recognised in an increasing number of international and national instruments, but the past eight years have seen a continuously growing interest in how to afford practical meaning to the right, particularly in the development context. Thus, the relative novelty around the right to water meant that the corporate sector could be asked about what the language has meant for its work and any changes it has resulted in for its operations. (This would have been more difficult to achieve should a right with a longer discursive history had been selected.)

Transnational water services corporations examined

Lack of access to adequate water has been increasingly correctly recognised to be a governance problem, rather than one stemming from inadequate natural resources or water scarcity. The World Business Council for Sustainable Development (WBCSD) has been quick to highlight that water security for all is an achievable goal, but only if the management of the resource is changed.Footnote 48 Partially in an attempt to address this, the influential Dublin Principles of the 1990s highlighted the importance of ‘managing water as an economic good’,Footnote 49 and, in 2001, the Bonn International Conference on Freshwater specifically encouraged private sector participation as a means of improving delivery performance.Footnote 50 A year later, the WBSCD came out with its report stressing the need to accelerate public–private partnerships in order to improve and expand water services to the poor and providing case-studies showing the successful contribution of business. The potential for market expansion to the world's poor was to be viewed as a business opportunity and urban mega-cities of developing countries were identified as the growth markets of the future.Footnote 51 At the Third World Water Forum, in Kyoto, in 2003, the Camdessus Report ‘Financing Water for All’ called for the increased involvement of the private sector.Footnote 52 While it is acknowledged that less than 10 percent of the world's water systems have been privatised, and private sector participation may be in relative decline compared with the previous decade, the water TNCs continue to be important actors in attempts to improve service delivery, including in the development context.Footnote 53

When the fieldwork for this research was undertaken, the four largest water services corporations were examined as part of this investigation:Footnote 54 Veolia, Suez, Thames and Saur. At that time, all members of the Global Compact, these companies controlled over 80 percent of the privatised water market, with Veolia and Suez (both of France) alone controlling between 50 and 70 percent.Footnote 55 These two companies are the focus of the analytical discussion of this article due to their vastly larger size and presence in the development context. The International Federation of Private Water Operators (AquaFed) was also examined.

Veolia and Suez, both with headquarters in Paris, France, are the world's largest and second-largest water services providers, respectively.Footnote 56 Suez participated in the consultation process of the drafting of General Comment No. 15 and, at the time of interviewing, was the private operator with the largest involvement in developing countries.Footnote 57 Both companies have been leaders in the water sector for over a hundred and fifty years, and have specific humanitarian and development water programmes.Footnote 58 Thames Water of the United Kingdom used to be the world's third-largest (but substantially smaller) water service provider.Footnote 59 It does not have a specific development programme, but is a member of Water and Sanitation for the Urban Poor (WSUP) – a UK based multi-stakeholder partnership designed to progress delivery of the Millennium Development Goal (MDG) for water and sanitation. Saur is the third-largest water service provider in France, but vastly smaller than both Veolia and Suez.Footnote 60 Although it does work in developing countries, it does not have a specific development programme.

The relatively new AquaFed is not a transnational corporation, but rather a non-profit association of private operators and national associations. It brings together over 300 water service providers operating in forty countries and has been recognised as the voice of the private water industry in relation to international organisations.Footnote 61 Its Code of Ethics encourages respect for international human rights and for its members to meet the UN Global Compact standards.Footnote 62 With an office around the corner from both Suez and Veolia in Paris, the organisation has been criticised for being driven by the two companies (and their subsidiaries) and nothing more than a lobby group for defending the commercial interests of the two largest water TNCs.Footnote 63

Qualitative methodology

In order to examine how transnational corporations engaged in water service delivery understand and use the language of human rights, specifically the right to water, a two-dimensional qualitative methodology consisting of documentation review and interviews was used. In regard to the documentation review, this generally consisted of examining official information on the Internet (e.g. corporate websites), sustainable development reports, strategy documents, position papers, booklets, pamphlets, press statements, conference presentations, etc.Footnote 64 In regard to the interviews, limited literature could be located on the identification of key informants in business (i.e. the identification of individuals within the TNCs who could be said to represent the views of the corporation on the subject matter of this research).Footnote 65 The more useful approach was to contact the companies directly and speak with the person(s) working on this issue of the right to water. (They often then knew who their counterparts were at the other companies.) The classic entry points for such discussions were the CSR groups. Within the larger companies (Veolia, Suez and Thames), the subject was also discussed in the International/Institutional Relations or External Affairs groups. Typically, heads of and/or senior individuals within these groups were interviewed at the various TNCs. In-depth, semi-structured interviews were conducted. Where such groups did not exist, the appropriate individuals as put forward by the company or organisation to speak on the issue were interviewed.Footnote 66 It is acknowledged that a limited number of interviews of corporate elites cannot adequately capture how an entire corporation (or international association in the case of AquaFed) understands a certain issue. At a minimum, geographical, subsidiarial, sectoral and disciplinary divisions exist. However, where the topic of the right to water is discussed within the company to some extent does present a finding in and of itself. Additionally, the senior individuals put forward to speak on the issue by the organisation can be said to provide some insight into an organisation's position on a subject. The fact that the right to water is discussed within the aforementioned groups, and not in the companies' legal departments, is discussed in further detail below.Footnote 67

A market opportunity – promoting the right to water apart from international law

All of the TNCs examined, as well as AquaFed, were acutely aware of this issue of the right to water. Even before General Comment No. 15 was being drafted, the Suez Advisory Council was discussing this issue of a right of access to water.Footnote 68 At the end of October 2001 (roughly two months after the September 11 attacks), the company came out with a strong position on the subject for the first time. With terrorism feeding itself on the misery of poor people in the Third World, the Chairman and Chief Executive Officer (CEO) sent a letter to heads of government, and published an article in Le Monde, explaining that the issue in need of addressing by world leaders was the lack of access to water supply and sanitation. Suez officially recognised the right to water and saw its role as an implementer of the right.Footnote 69 A short while later, another publication reiterated Suez's support for recognising access to water as a universal human right, and for seeing the fight against poverty not as an option, but as an obligation.Footnote 70 Accordingly, the company had no hesitation in becoming involved in the General Comment No. 15 consultation process.Footnote 71

In the drafting of the General Comment on the right to water, the role of the private sector was the subject of significant controversy. Although a CESCR member has stated that ‘international human rights law is neither for, nor against, the privatization of service provision’Footnote 72 the role of corporations has been described as the ‘lightning rod [of] the water debate’.Footnote 73 The final version of General Comment No. 15 opens with a statement declaring water to be a public good, and then goes on to clearly allow for public or private provision of services. For example, when discussing implementation of the right at the national level, it provides that states should take steps to ensure that the private sector is aware of, and considers the importance of, the right to water in pursuing their activities, and that framework legislation to operationalise national water strategies should include intended collaboration with the private sector.Footnote 74

The adoption of General Comment No. 15 in 2002 sparked significant debate about the existence of the right to water in international law.Footnote 75 Some clearly felt the CESCR went too far and created a ‘new’ right, while others felt it was an accurate interpretation of an implied or existing right within the ICESCR.Footnote 76 Despite this continually present debate, all of the TNCs, as well as AquaFed, indicated that a right to water exists.Footnote 77 In fact, their support of the right became quickly apparent from the ease of access to the elite informants, and their willingness, and in some cases outward enthusiasm, to be interviewed and discuss the subject matter of the research.Footnote 78 However, interestingly, although there was clear support for the right to water, there was little reference to General Comment No. 15 in corporate documentation and interviewees were generally only vaguely aware of the existence of the document. The obvious exceptions were those involved in the drafting consultation process. Other than these individuals who were familiar with its legal basis being the ICESCR, the legal basis of the right was generally not known, and was seen to be of little relevance or interest.Footnote 79 The interpretative or quasi-legal status of the General Comment was not really seen as being connected to this issue of the existence of an international right to water.Footnote 80 The right was seen to based more on the concept of sustainable development, corporate social responsibility, the MDGs or World Summit on Sustainable Development (WSSD) commitments (or, in the case of the French companies, the Charter of Essential Services) than in any international human rights treaty.Footnote 81 AquaFed was the only organisation that saw the right grounded in a legal basis and was aware of other bases in international law for supporting the existence of such a right.Footnote 82 Within the actual TNCs, however, there was little evidence of the right to water being seen as a legal obligation relating to, or connected with, the international human rights regime.

Overall, the right to water was typically seen from a functionalist perspective, rather than from a legal normative perspective.Footnote 83 International development discussions amongst the TNCs were centred around the MDGs and the right to water was often seen as a tool to help meet these goals.Footnote 84 Despite the claimed existence of the right, and at times the promotion of it, international law and the international human rights regime were not uncommonly referred to as ‘philosophical’, ‘theoretical’ or ‘political’, and having little practical relevance to the reality of what is happening on the ground. Examples of other internationally recognised human rights, such as the right to food or women's rights, were cited as having little impact in various countries.

With the right to water seen as a theoretical or political debate, it was stressed that as private corporations their role is to be practical and to get things done. It was explained that the debate over terminology was not of such importance, but what really mattered today was the actual implementation of the right to water. Due to the technical expertise of the private sector and its efficiency in operating in the water sector, it was frequently stated that the corporations have a special role to play in the delivery of public services and implementation of the right to water. Sharing their professionalism, knowledge and expertise was seen to be part of their corporate social responsibility.

Typically associated with improving access to water in developing countries, the right to water was seen to complement the business sector's push for improved water governance through better articulation of the value or worth of water. Through this, various community stakeholders can put pressure on politicians to improve the governance of the sector.Footnote 85 It was explained that if a government recognises the right, in order to have any sort of impact on the ground it needs to be accompanied by both political and financial backing. If a local government decides to provide water to slums, it may then turn to the private sector as it is more efficient and has the expertise. Thus, for Suez, it was admitted that the right to water presents more business opportunities than risks.Footnote 86

Accordingly, while the TNCs had little confidence or interest in the international human regime (or international law), and stated that the international right to water is a theoretical or philosophical debate having little impact on everyday access issues, the entry of rights language into development discourse can be a powerful tool for increasing private sector participation in water service delivery. If the use of ‘right to water’ language sparks political mobilisation and puts pressure on public authorities to address access issues, the secondary or spin-off effect of this could likely be the greater involvement of the private sector. Although the increased use and promotion of the right to water was sometimes claimed to come under corporate social responsibility, it was clear that the right is viewed, valued and promoted for the business opportunities it creates. This becomes more evident in the following discussion on how the right is both used and interpreted by the TNCs.

‘Making the right to water a reality’

At the time of interviewing, both AquaFed and Suez were particularly strong supporters of the right to water, along with Veolia. At the Fourth World Water Forum, in Mexico in 2006, AquaFed made a statement encouraging the international community to work on the implementation of the right to water in order to make it effective for those in need.Footnote 87 It was added:

‘The implementation of the [r]ight to [w]ater is a challenge for which operators, public and private, have much experience. Their duty, as instruments of public water policies is to make the [r]ight to [w]ater effective. And, they do it by connecting millions of people to public water systems.’Footnote 88

An interviewee later explained that the expertise the private sector had in the area could assist with building a consensus on the subject that could eventually contribute to solving the world's water problems. The World Water Forum was primarily an opportunity to express the sector's view on the right to water, help people understand the issue, and act as a catalyst for governments to move forward on implementing the right. With a vocal anti-privatisation movement advocating public-only control and operation of water services, the Forum also provided a secondary opportunity to respond to this movement and to clarify that the job of private companies is to connect (not disconnect) people and make the right a reality. It was reiterated that it is up to the relevant public authority (and not operator) to decide whether to fulfil the right to water and that the operator must do what is required of them. Private operators are used to implementing the right and thus have no problem with it.Footnote 89 Since 2006, the association has been a continuous supporter of the right to water. For example, it made submissions to the Office of the High Commissioner for Human Rights (OHCHR) study on human rights obligations related to access to water and sanitation, contributed to various consultations by the UN independent expert on the subject, made presentations, and contributed to the work of the UN special representative for business on human rights, including on the issue of the right to water.Footnote 90

As mentioned above, Suez was discussing the subject of the right to water even before the General Comment on the subject came out. At around the time of its drafting, the company had the largest involvement in developing countries both in terms of the number of people served and the extent of commitments to expand access to water and sanitation to the urban poor. The issue of the right to water was therefore of significant importance to the company. It was serving about nine million people living under the poverty line in concessions in Latin America, Asia and elsewhere. In many of its contracts, the company had commitments to expand the coverage of services, but for reasons related to land tenure was not allowed to provide water and sanitation services to illegal settlements. It was thought that a rights based approach might help reconcile this situation and provide a new basis in which to engage in discussions with local authorities or have national policies revised to allow for services to be provided to these settlements. It was thought that the action of the UN in this respect might change the attitude of some of their clients, specifically the public authorities.Footnote 91

The language of the right to water continues to be used by Suez's Department of Institutional Relations, Strategy and Sustainable Development. At the time of the empirical investigation, it did not come up in the company's legal department.Footnote 92 Clearly defining their role as implementers of the right, particularly in the developing country context, a slogan of the Suez Water for All programme is ‘making the right to water a reality’, which it states it does by connecting low-income communities to water and sanitation services.Footnote 93 With contracts in cities in Latin America, Asia and Africa, where typically 25–30 percent of the population is not connected to the network, it was thought that improving access for these people would add an element of stability to their contracts. Sometimes the company is not permitted to service the slums, as governments do not want them perpetuated, and thus the company has to make efforts to convince the government to allow service to these areas.Footnote 94 Referencing the investment disputes over water contracts in ArgentinaFootnote 95 and Bolivia,Footnote 96 where the activities of the private sector have been heavily criticised, at the corporate or policy level, the right to water is used to try to enhance the legitimacy of Suez's commitment to improve access to services, either where governments do not want to act or where there are strong anti-privatisation sentiments. It was explained that Suez has a clear corporate social responsibility when dealing with essential services such as water, and cannot just ignore the poor. As providing water to people is their job, Suez never contests the right to water.Footnote 97 However, it was admitted that, overall, the right to water is mentioned more as a background than operational concept. Since, first and foremost, the right should influence public authorities responsible for water management decisions, the company does not see itself directly impacted by it. But if a public authority decides to provide services to an illegal settlement, for example, as a result of the right, it was explained that this may in turn have a significant economic impact on Suez through the expansion of infrastructure.Footnote 98 The company continues to promote the right to water.Footnote 99

With a more reserved CSR culture, Veolia was slower in its adoption and use of the term ‘the right to water’. Apparently, it was concerned that other companies and actors were making strong principled commitments that could be difficult to maintain. More cautious in its selection of terminology, Veolia did not want to oversell its capabilities or create unnecessary expectations about what the right to water could bring. It did not want to create a gap between the words it was using and the reality of its actions.Footnote 100 The specific language of the right to water has since appeared in Veolia's sustainable development report, again in this context of ‘making the right a reality’Footnote 101 and it has made clear that it supports the right to water for all.Footnote 102 Equating the concept with access to water, it was explained that due to its expertise and world leadership in the field, Veolia also sees itself as part of the solution.Footnote 103 With no ideological opposition to the term, ‘the right to water’ is becoming a recurrent phrase for how they speak about water, particularly in developing countries.Footnote 104 For Veolia, the right to water is a strategy issue and thus discussed in the International/Institutional and CSR groups. Like Suez, it was not discussed in the company's legal department. It was explained that the term offers the company no competitive or good image advantage, and that other companies (e.g. Thames) did not use it because they do not have the same international presence.Footnote 105

The UK-based company, Thames, uses ‘the right to water’ significantly less than the French TNCs, Suez and Veolia. It is mentioned only once in a sustainable development water publication and not in their sustainable development reports.Footnote 106 It was explained that the human right to water discussion had not entered the company on a broad scale because at the time the terminology was surfacing at the international level, the company had already pulled back substantially from international involvement (where such discussions are typically held) and made the strategy decision not to expand further into developing markets. Accordingly, the exposure of Thames to the issue had been quite low compared to Suez and Veolia.Footnote 107 At the time the interviews for this research were conducted, the right to water was discussed in the External Affairs and Corporate Responsibility groups. With the selling of the different international divisions of Thames Water, it was anticipated that were would be even less discussion of the subject from the commercial perspective and the right to water would be confined to the Corporate Responsibility group. The WSUP initiative, of which Thames is a founding partner, is focused on the MDGs and infrequently references the right to water.Footnote 108

It was explained during interviews that Saur does not use ‘the right to water’, claiming it to be a marketing tool for Suez and Veolia. The company does not have an Institutional/International Affairs or External Affairs group and claims not to be involved in national or international lobbying activities. It was repeatedly stated that the right to water is a political issue and that as an engineering company it is not the job of Saur to have a standpoint on the subject. However, its work was still framed in terms of implementing the right when an interviewee explained that the company brings technical solutions to communities to resolve their right to water.Footnote 109 It was clear that the company's understanding of the term was also from a functionalist perspective and that it did not see itself at all directly impacted by any sort of legal standard.

AquaFed summarises the role of the private sector as ‘to make the right to water effective’ by connecting people to the network, and that to date the sector has connected more than ten million people in developing countries.Footnote 110 The private sector merely carries out the duties of the public authorities in charge of realising the right. This approach was echoed across the TNCs with the engagement and use of the term being proportional to the size of the company and its developing country presence. What was also consistent was that the right to water was not generally seen as having any sort of legal (or even quasi-legal) effect on, or relevance to, the TNCs' work. With the term typically only being raised in the companies' Institutional/International or CSR groups, and not, for example, legal departments, it was clear that the larger TNCs were capitalising on the terminology and indirect mobilisation effects of rights language to expand their activities, particularly in international markets.Footnote 111 This reactionary or opportunistic (counter)mobilisation of the language of rights became even more vivid through some of the companies' promotion of a ‘right to energy’.Footnote 112 For example, an interviewee at Suez explained that the French Charter of Essential Services not only includes water and sanitation, but also access to energy and electricity. Supportive of looking at this issue of essential services from a more global or encompassing approach, it was explained that it does not make sense to proclaim a right of access to water and yet deny a right of access to electricity, particularly in peri-urban areas.Footnote 113 Primarily an energy utility, and with an announced merger between Suez and Gaz de France, it was clear that rights language for the TNCs had little association with the international human rights regime or legal obligations. Rather, the corporations that engage the language seemed to be using it to increase access in developing country markets, as well as to legitimise their activities in such areas.

Concerns with using the right to water

Although AquaFed and some of the TNCs have become strong advocates of the right to water, they were aware of the dialectical relationship between rights and politics, and recognised certain limiting effects of the incorporation of rights terminology into the water sector. Initial hesitation by some of the companies towards the language may have related to confusion about its relationship with, or impact on, private sector involvement. The TNCs remained concerned over NGOs (e.g. those associated with the Friends of the Right to Water Treaty) equating the right to water with public service delivery only, and no private sector involvement.Footnote 114

The main concern raised by the TNCs regarding the use of ‘the right to water’ was the association of the language with the provision of free water. Again, the NGO community (albeit a small group within that community) was primarily identified as promoting this interpretation. (General Comment No. 15 on the right to water explains that water must be affordable for all and that the direct and indirect costs and charges associated with securing it must not compromise the realisation of other ICESCR rights.Footnote 115) Interviewees within the corporate community had specific concerns that the provision of any amount of free water would lead to wastage of the resource and undermine the sustainability of the right. They repeatedly stressed how important it is that the treatment and delivery of services not be thought of as free and that the resource be appropriately valued.Footnote 116 There was also apprehension that the right to water can place an emphasis on individualism over what is a collective resource and responsibility, and that on occasion choices may need to be made between individual and collective rights.Footnote 117

The concern that right to water discussions may have entered a confined legal debate, rather than be contributing to the bigger picture of improved water governance was also raised. It was explained that resources spent on the legal side of the debate may detract from broader service delivery and access issues. Use of rights language can set up both enormous expectations on one side and fear on the other and, as with many new concepts, anxiety around it can result in natural opposition and disagreement over what are essentially non-issues.

Lack of enforcement mechanisms that would make governments accountable for fulfilling the right was also raised as a concern.Footnote 118 Although some of the TNCs appeared to have been capitalising on the right to water, they were aware of the dangers of using the language with public authorities. There was some discrepancy as to whether a company, such as Suez, would raise the right when engaging in discussions with government officials if certain communities (e.g. informal settlements) were being neglected. (While one interviewee felt that Suez would certainly raise it as the company has a clear corporate social responsibility and when involved in essential services cannot ignore poor people, another felt that it would not be diplomatic to suggest the government take a certain course of action because of the right to water.Footnote 119 ) Overall, however, the limiting aspects or risks of using the language of the right to water for the TNCs are far outweighed by the business opportunities it creates.

Interpretation of the right to water

When commenting on a draft of General Comment No. 15, in 2002, a senior water advisor at Suez wrote:

‘To make the right to water a reality, we must clearly define what the right means …

For the right to become a reality, we also need to be clear on responsibilities and on means. It is essential that someone has the responsibility to ensure that the right is accessible to those who need to enjoy it. In most cases, having the right to access to water (and sanitation) also depends on having the means to deliver. The means to deliver requires an appropriate organization and adequate resources.’Footnote 120

Interviewees within both the larger TNCs and AquaFed were of the opinion that there was little contestation over the meaning of ‘the right to water’. In 2006, AquaFed stated that ‘[t]here is now the understanding that the implementation of the [r]ight to [w]ater requires that a public authority is allocated the duty and the means to make the [r]ight effective’. The local authorities are best placed to implement the right and can identify in detail the individuals who lack access to water:Footnote 121 ‘The international community should close this debate and permit action to take place.’Footnote 122 It was explained later in an interview that although over the past few years more people were coming to understand the legal content of the right, in order for it to be reflected in reality and to have meaning, then it is necessary to identify the public authority in charge of implementation, as well as the duties of the local authority. Private operators only implement a service under the control or guidance of the public authorities.Footnote 123

Suez was also of the opinion that the concept of the right to water was becoming more clear.Footnote 124 Directly in line with AquaFed's interpretation, Suez described the right as follows:

‘Access to drinking water is a basic human right. For that reason, whatever the mode of management chosen, the ultimate responsibility for water and wastewater services always rest with the local government … Public authorities … define the framework conditions for the contract (rates, coverage, areas etc) and supervise their implementation.’Footnote 125

During interviewing, it seemed that the right to water was primarily concerned with providing water to people in developing countries, while in developed countries it related to the issues of bill payment and cut-offs.Footnote 126 Veolia also equated the term with access to water and had an almost identical interpretation of the right (and the inapplicability of standards to private operators).Footnote 127

With vastly smaller international operations, unlike the larger French TNCs and AquaFed, Thames and Saur were of the opinion that the meaning of ‘the right to water’ was not clear. Thames admitted to using the term very loosely. It associated it with access to water and the responsibility to deliver water of a certain quality and security of price.Footnote 128 Saur explained that while the company had an idea as to what ‘the right to water’ meant, it was not completely defined.Footnote 129

Generally, interviewees within the international business community tended to roughly equate the term ‘the right to water ‘with access to water. The precise terminology was stated not to be of such importance. While it was indicated that the language of rights may strengthen individual claims to entitlement, the actual human right to water standards were interpreted as having no direct relevance or bearing on corporations, despite their membership in the UN Global Compact and other similar initiatives.

In looking at the role played by the international private sector, it has been suggested that development or MDG financing be conditional upon respect for the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.Footnote 130 When asked if the standards in General Comment No. 15 would ever be interpreted as having operational relevance, one interviewee explained that, in theory, it could fall into the category of companies not entering into business that involves corruption, lacks transparency or is against the interests of certain people or groups. Similarly, from a theoretical standpoint, it could form part of the corporate responsibility to not enter into contracts where the human right to water standards would not be respected. However, the interviewee admitted that if a company is very interested in a contract, it is not realistic to expect them to act on behalf of somebody else.Footnote 131

In short, the TNCs understand the right to water as placing specific duties on local authorities to implement it. These local authorities set the framework conditions for the contract and the TNCs clearly see themselves as implementers of the right (or the contract) with the actual standards having little to no direct relevance on their operations. Rather, the TNCs use the language of the right to water to expand their market access, while simultaneously clarifying that they are beyond the reach of any sort of legality or legal standards associated with the right. An example involves the issue of land tenure. The right to water was seen by Suez as being useful in part for enabling access to illegal settlements not uncommonly neglected by public authorities, and yet, paradoxically, the status of land tenure is a determinant for involvement in the company's Water for All programme.Footnote 132 Another example relates to the affordability standard of the right to water. The TNCs stressed that ensuring economically accessible water services was the responsibility of the public authorities. The authorities make decisions regarding charges, tariffs, cross-subsidy mechanisms, etc., and the private operators merely carry out their contractual obligations. With private operators simply applying the decisions made by the public authority, at no time was it suggested that respecting the affordability standard of the right to water be of relevance to the corporations.

If companies are committed to respecting the right to water, they should not respond to tenders or accept concessions where the specifications are not compatible with human rights standards. In the case of the water services corporations, if the right to water is not discussed outside the CSR or International/Institutional Relations groups of any of the companies, at present, it is questionable how this could occur. The TNCs have clearly interpreted the right to water as being relevant only to the public authorities with whom they contract, and these contractual agreements appear to exempt the TNCs from ever interfering with the enjoyment of the right to water themselves.

Conclusion – closing the globalisation governance gap

The inclusion of the private sector in the delivery of basic services in the development context is still promoted as a means of improving efficiency – although perhaps with less enthusiasm and with more caution than it originally was with the ushering in of the neoliberal agenda of the 1980s. And yet, historically, the debate about the applicability of human rights standards to the private sector has tended to neglect rights that are directly related to access to essential services, such as the right to health, the right to housing, and so on. Moreover, the academic community has been mostly preoccupied with a legal analysis about the applicability of human rights standards to the private sector. Thus, this article takes a broader, socio-legal approach and through the collection of empirical evidence examines how transnational corporations engaged in water service delivery in the development context understand and use the language of the right to water. Bearing in mind the methodological limitations discussed earlier, this case-study in turn raises interesting questions about current attempts to try to cast the net of human rights obligations over the activities of corporations.

Based on both a documentation review and interviews of senior individuals within the corporations, it was clear that, over the past few years, the TNCs have become more engaged in discussions on the right to water. All of the TNCs indicated that an international right to water exists.Footnote 133 With the exception of those individuals who had been involved in the General Comment No. 15 consultation process, for the most part, the right to water was seen to stem more from principles of sustainable development, corporate social responsibility, the MDGs, WSSD commitments, or the French Charter of Essential Services than from any international human rights treaty. Accordingly, there was generally little interest in the General Comment on the right to water. The more dominant discourse amongst the business community was in relation to the Millennium Development Goals and the right to water was seen as a useful tool for meeting the MDG related to water.Footnote 134 The right was sometimes seen as more powerful as, in theory, it could identify a specific local authority responsible for realising the right, and may also enable the TNCs to service high-density peri-urban areas often neglected by governments for reasons related to land tenure. It appeared that any confidence in the right to water to positively affect access on the ground had no relation to the international human rights machinery or international law more generally, but rather from the business opportunities it could create as a secondary effect of social and political mobilisation. Overall, engagement with the right to water was viewed more as an opportunity than as a risk.

The extent of use of rights language amongst the TNCs was proportional to the size of the corporation and its engagement in developing countries. ‘The right to water’ seemed to be used primarily by the larger water transnationals to try to improve access to certain markets and to enhance the legitimacy of the companies in developing country operations. It was also being used to counter the attempted capture of the language by the anti-privatisation movement, which may have caused initial hesitation in the use of the terminology. The limited number of concerns for the TNCs with using right to water language centred primarily around the environmental and social sustainability of the actual implementation of the right. There was particular concern over the association of the right to water with free water.

The larger TNCs, as well as AquaFed, were of the opinion that there was little contestation over the meaning of ‘the right to water’.Footnote 135 The organisations were clear that the right of access to water resulted in a duty of the local authority to implement the right and the actual human rights standards had no direct relevance or application to the corporations' operations. Despite membership of the UN Global Compact and other similar initiatives to respect international human rights, the TNCs specifically clarified that they were beyond the reach of any sort of standard associated with the right and that it was only the actions or decisions of the authority that could undermine the right as the companies merely implement the terms of the contract.

Today, it is unquestionable that the TNC community exhibits unprecedented influence over both economic and social policy, particularly in the development context, and that corporations' decisions and activities now carry significant weight in international policy-making.Footnote 136 With an increasingly globalised economy, international rules governing market expansion now far outpace international rules protecting human rights. Some home states of transnational corporations continue to be hesitant to regulate overseas corporate activities because the extra-territorial effect of national regulation remains unclear or because of concerns that their firms may lose investment opportunities or relocate elsewhere. Similarly, some host states, particularly developing countries, may lack the institutional capacity to enforce national laws with respect to TNCs or may not do so even where capacity does exist due to international competition for investment.Footnote 137 (With international demands to show demonstrable progress towards meeting the MDGs, such pressures may be increased.) Therefore, ‘[t]he challenge for the human rights community … is to make the promotion and protection of human rights a more standard and uniform corporate practice’.Footnote 138

It should be mentioned in passing, however, that the flip side of trying to draw TNCs into the international human rights regime is that such corporations now also have a greater presence and influence within the historically state-centric regime. For example, various representatives of the private sector, including AquaFed, Suez and Veolia, submitted contributions to a 2007 study by OHCHR on human rights obligations related to equitable access to safe drinking water and sanitation, as well as providing extensive contributions in 2010 to the UN independent expert on the subject of private sector participation in the provision of water and sanitation services.Footnote 139 With a continually visible role in service delivery, it is likely that the engagement of the private sector with human rights, particularly in the development context, will increase. While some may question the intent behind the corporations' engagement with the language of the right to water, this has in turn helped to raise the profile of the right globally and, as mentioned above, clarify that the right, as articulated in General Comment No. 15, is in fact neutral on the subject of privatisation. Engagement with the language of the right to water may be considered a good first step, and it is worth recalling that other actors have manipulated its meaning to further their own agendas.Footnote 140 Furthermore, unlike other actors, who appear to be diluting the content of the right to water to the vague and varying language of ‘rights based approaches to water’ in the development context,Footnote 141 at least AquaFed and the TNCs tend to avoid such an approach and rather associate the right with placing a duty on a public authority to implement it.Footnote 142 However, the general disassociation of the origin of the right from the international human rights regime is a concern, as is a lack of evidence of corporate practice of respecting the right given the small localities within the TNCs where the right is discussed (e.g. the International/Institutional Relations or External Affairs and CSR groups).Footnote 143

As discussed above, the special representative has put forward a number of suggestions as to how to close the globalisation governance gap that underpins the business and human rights predicament – i.e. the gap ‘between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences’.Footnote 144 The special representative suggested that, as a minimum, companies are to respect human rights (i.e. to not infringe the rights of others) through the exercise of due diligence. The responsibility to respect is a baseline responsibility, meaning that companies may take on additional commitments in relation to human rights. Furthermore, a company ‘cannot compensate for human rights harm by performing good deeds elsewhere’.Footnote 145 Thus a company's humanitarian work, for example in the aftermath of the Haiti earthquake, cannot make up for human rights violations on the for-profit, business side of its operations. At this stage, it is also worth recalling that the actions of the water TNCs, as well as other medium and smaller water companies, can seriously undermine a broad array of human rights far beyond the right to water. To provide only a few examples, a company could undermine its workers' right to enjoy just and favourable conditions of work by not paying fair wages or not providing equal remuneration for work of equal value; the cultural rights of a community by interfering with customary access to water resources; or the right to an adequate standard of living of those living in urban or peri-urban areas through unaffordable price increases in water services. A large number of possibilities and scenarios is not difficult to imagine: ‘[T]here are few if any internationally recognized rights business cannot impact – or be perceived to impact – in some manner.’Footnote 146 Moreover, in certain situations, the special representative has explained that a company may have additional responsibilities if they perform public functions.Footnote 147

Notably, the ‘protect, respect and remedy framework’ was put forward by the special representative after the empirical research for this investigation was concluded, and is still relatively new. The framework has generally been seen by the business community to be a useful contribution to business and human rights and there are indications that companies are now beginning to try to implement this framework in practice.Footnote 148 It is also important to bear in mind that ‘[t]he framework by itself does not constitute a solution’ to business-related human rights issues.Footnote 149 As suggested by the special representative, the scope of a company's due diligence should be informed by country context, possible corporate human rights impacts (e.g. as a service provider) and any potential contribution to abuse through business relationships.Footnote 150 It should be exercised over the entire duration of a project, and means that a company needs to take concrete steps to become aware of, prevent and address human rights impacts.Footnote 151 The special representative has specifically suggested that companies adopt a human rights policy.Footnote 152 An organisation, such as AquaFed, would be well placed to provide guidance in this regard, for example, by outlining the minimum substantive content of such a policy based on internationally recognised human rights, but yet recognising that specific rights (e.g. the right to water) may be more relevant in the context in which many of its members work. Beyond the International Bill of Rights and core ILO conventions, documents such as the Business Leaders Initiative on Human Rights ‘Guide for Integrating Human Rights into Business Management’Footnote 153 or the special rapporteur on the right to health's ‘Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines’Footnote 154 may be useful resources. The development of such a policy would be particularly useful for smaller water companies lacking CSR programmes of any appreciable size. To do so would also follow up on a recommendation in a recent round-table consultative report on the subject of ‘business, human rights and the right to water’ to develop a more comprehensive understanding of how rights may inform the management of water-related issues.Footnote 155 The larger transnational corporations could then tailor their policy for their various country operations, for example, in situations where the human rights commitments of the country extend beyond international standards. All companies may need to consider whether additional standards may be relevant, for example, in relation to low-income or other vulnerable groups.

As noted by the special representative, the bigger challenge lies in integrating a human rights policy throughout the company. To begin with, within the water TNCs, human rights awareness and discussions would need to extend beyond the Institutional/International Relations and CSR groups where they are primarily confined at present. Human rights risks and considerations would need to be taken into account in the tendering process. This would mean raising particular human rights concerns with relevant public authorities and not entering into contracts where human rights standards (e.g. providing affordable water services, or providing water services on a non-discriminatory basis) could not be respected. In order to engage in ‘responsible contracting’,Footnote 156 a human rights impact assessment would need to be conducted prior to agreement of any contractual commitments and any issues of concern appropriately addressed. (To do so in any meaningful fashion would likely involve some form of genuine public participation.) Interestingly, Veolia's recent sustainability report states that it ‘only accepts contracts if it is certain it can comply with [basic human] rights’.Footnote 157 Furthermore, over the course of the concession, the performance of the company would need to be monitored from a human rights perspective.Footnote 158 Monitoring, and access to effective grievance mechanisms, would in theory, prevent or decrease the frequency of actions, such as arbitrary disconnections or unaffordable price increases leading to the denial of basic amounts of water due to an inability to pay.Footnote 159 As noted by the special representative, ‘[t]he fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection’.Footnote 160 Thus, the position that water companies are merely implementing the terms of a contract would likely not be a tenable excuse for undermining human rights obligations.Footnote 161 Given, at times, the vast capacity differential between contracting parties (i.e. local public authorities and transnational corporations), such an approach seems reasonable, although it is important not to inadvertently shift state obligations to progressively realise social rights to the private sector.

It has been strongly suggested that an international human rights regime that is not capable of ensuring private actors are held responsible ‘will not only lose credibility in the years ahead, but will render itself unnecessarily irrelevant in relation to important issues’.Footnote 162 Self-regulation is one way of trying to decrease the negative impacts of corporate activities on human rights. Changing the private sector's slogan from ‘making the right to water a reality’ to ‘respecting all human rights, including the right to water’ would be a welcome development. International relations literature has already demonstrated that even such a small tactical concession, albeit in the state context, may eventually lead to rule consistent behaviour and the internal socialisation of international norms under certain conditions.Footnote 163 As noted by the special representative, effective accountability mechanisms, including both judicial and non-judicial, are also needed. And, it is important for civil society and NGOs working on the ground not to forget the number of state and non-state mechanisms, some of which are touched on above, that may be available to them for pursuing human rights claims, as well as the power of naming and shaming in the court of public opinion.

While conceptual clarification of the relationship between business and human rights, and legal and socio-political strategies, may be a means to decrease private sector complicity in human rights abuses, no doubt one of the strongest drivers for corporations upholding human rights standards will be the increasing realisation that ‘good human rights practices can be a source of competitive advantage’. Some members of the corporate sector believe that ‘human rights will increasingly become an aspect of business management viewed by the business community as vital’ and that ‘[b]eyond simply mitigating risk … companies will increasingly recognize the opportunities posed by recognizing and respecting human rights’.Footnote 164 Apparently, ‘[t]here is growing evidence that good [human rights] practice: enhances reputation … strengthens the licence to operate … creates more stable operating environments, and promotes better community relations’.Footnote 165 Thus, in conclusion, further empirical evidence of the corporate advantages to upholding human rights, particularly in the development context where enforcement mechanisms are often weak, would likely be one of the most effective triggers for encouraging responsible corporate practice in relation to human rights.

Footnotes

1 See, e.g., Kennedy (Reference Kennedy, Trubek and Santos2006, pp. 117–50).

2 Alston (Reference Alston and Alston2005a, p. 17).

3 See, e.g., Addo (Reference Addo1999); Frynas and Pegg (Reference Frynas and Pegg2003); Alston (Reference Alston2005b); De Schutter (Reference De Schutter2006a).

4 See, e.g., allegations of human rights violations by Nike with respect to its workshops; Google for collaborating with the Chinese government with respect to censorship; and Shell with respect to both injuries sustained by protesters in Nigeria, as well as environmental damage to land and waters used by the Ogoni peoples.

5 See, e.g., Scott (Reference Scott, Eide, Krause and Rosas2001); Joseph (Reference Joseph and Langford2008).

6 Potter and McCauley Sine (the Coca-Cola Company) (Reference Potter, Mccauley sine, Gross and Compa2009, p. 181).

7 The OECD Guidelines have been revised on a number of occasions and are monitored through complaints procedures. The latter may involve utilising national contact points set up to field inquiries, or having recourse to the Committee on International Investment and Multinational Enterprise, which organises exchanges of views on issues relating to the Guidelines and issues clarifications (see Clapham (Reference Clapham2006, pp. 201–211)). In April 2010, the forty-two governments adhering to the Guidelines agreed on the terms of reference for updating them, which included providing further guidance on the application of the Guidelines to human rights.

8 Weissbrodt and Kruger (Reference Weissbrodt, Kruger and Alston2005, pp. 318–20). In terms of monitoring mechanisms, the Sub-Committee on Multinational Enterprises conducts a periodic survey on the implementation of the ILO Declaration. There is also a procedure allowing for interpretations of provisions of the Declaration, as well as promotional activity and studies (see Clapham (Reference Clapham2006, pp. 211–18)).

9 Amnesty International (2004, p. 5).

10 Potter and McCauley Sine (the Coca-Cola Company) (Reference Potter, Mccauley sine, Gross and Compa2009, p. 184).

11 UN Commission on Human Rights ‘John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises' (21 February 2006) UN Doc E/CN.4/2006/97 para 40.

12 UN Global Compact ‘Overview of the UN Global Compact'; ‘The Ten Principles'; ‘FAQs' <www.unglobalcompact.org/> (30 November 2009). Note also that Principles 7–9 relate to the environment. For further information, see ‘Note on the United Nations Global Compact and Business and Human Rights’ (13 Jan 2009) available on the same website.

13 UN Global Compact ‘Principle 1’; ‘Principle 2’ <www.unglobalcompact.org/> (30 November 2009). It is explained that complicity can be direct, beneficial or silent.

14 Weissbrodt and Kruger (Reference Weissbrodt and Kruger2003, p. 903); see also Clapham (Reference Clapham2006, p. 225, as well as more generally pp. 218–25). However, it should be noted that currently there over 7,700 corporate participants in the initiative (UN Global Compact ‘Overview’ <www.unglobalcompact.org/> (16 April 2010)). For an opinion on how the Global Compact can better address human rights, see Robinson (Reference Robinson2010).

15 UN Commission on Human Rights (Sub-Commission on the Promotion and Protection of Human Rights) ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' UN Doc E/CN.4/Sub.2/2003/12/Rev.2.

16 Weissbrodt and Kruger (Reference Weissbrodt and Kruger2003, p. 901); De Schutter (2006b, p. 11).

17 UN Commission on Human Rights (Sub-Commission on the Promotion and Protection of Human Rights) ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights' (n. 15) preamble, para 1.

18 Footnote Ibid. (n. 15) paras 15, 16. For further information on the Norms, see Clapham (Reference Clapham2006, pp. 225–37). See also Kinley, Nolan and Zerial (Reference Kinley, Nolan, Zerial, McBarnet, Voiculescu and Campbell2007).

19 UN Commission on Human Rights Res 2004/116 (20 April 2004), as noted in UN Commission on Human Rights ‘John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises' (n. 11) para 56.

20 UN Commission on Human Rights Res 2005/69 (20 April 2005).

21 ECOSOC Res 2006/273 (25 July 2005).

22 UN Commission on Human Rights Res 2005/69 (20 April 2005) para 1(a). The special representative was also mandated to elaborate on the role of states in effectively regulating transnational corporations with regard to human rights; to research and clarify the implications for transnational corporations of concepts such as ‘complicity’ and ‘sphere of influence’; to develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations; and to compile a compendium of best practices of states and transnational corporations (para 1(b)–(e)).

23 UN Commission on Human Rights ‘John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises' (n. 11) paras 60, 61.

24 UN Commission on Human Rights ‘John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises' (n. 11) paras 64, 70. One non-governmental organisation (NGO) therefore suggested that while the exact legal reach of the Norms is debatable, in theory, the Norms may still provide guidance to businesses wishing to comply with legal and ethical responsibilities in relation to human rights standards (Amnesty International, 2004, p. 15).

25 UN Human Rights Council ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie – Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts' (19 February 2007) UN Doc A/HRC/4/35 paras 10, 15. The special representative notes that states are not prohibited from exercising such extra-territorial jurisdiction.

26 Footnote Ibid. (n. 25) paras 22, 19–32.

27 Footnote Ibid. (n. 25) para 44.

28 Footnote Ibid. (n. 25) paras 45–62.

29 Footnote Ibid. (n. 25) paras 63–81. (For further details, see ‘Addendum – State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries' (13 February 2007) UN Doc A/HRC/4/35/Add. 1; ‘Addendum – Corporate Responsibility under International Law and Issues in Extraterritorial Regulation: Summary of Legal Workshops’ (15 February 2007) UN Doc A/HRC/4/35/Add. 2; ‘Addendum – Human Rights Policies and Management Practices: Results from Questionnaire Surveys of Governments and Fortune Global 500 Firms’ (28 February 2007) UN Doc A/HRC/4/35/Add. 3; ‘Addendum – Business Recognition of Human Rights: Global Patterns, Regional and Sectoral Variations’ (8 February 2007) UN Doc A/HRC/4/35/Add. 4; as well as companion report ‘Human Rights Impact Assessments – Resolving Key Methodological Questions’ (5 February 2007) UN Doc A/HRC/4/74.)

30 The mandate of all special representatives (along with all other special procedures) was extended for one year (UN Human Rights Council Res 1/102 (30 June 2006)).

31 UN Human Rights Council ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5 para 9.

32 Footnote Ibid. (n. 31) paras 1–26.

33 Footnote Ibid. (n. 31) paras 27–50. The special representative notes that in conflict situations there is a need for more proactive policies to prevent harmful corporate involvement (para. 48).

34 Footnote Ibid. (n. 31) paras 51–64. The special representative noted that the scope of corporate due diligence is not a fixed sphere or based on influence, but rather depends on the potential and actual human rights impacts resulting from a company's business activities and the relationships connected to the activities (para. 72). He went on to note that companies can avoid being complicit in human rights abuses by exercising due diligence (para. 81).

35 Footnote Ibid. (n. 31) (paras 82–103).

36 UN Human Rights Council ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie - Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’ (22 April 2009) UN Doc. A/HRC/11/13 para. 1. UN Human Rights Council Res 8/7 (18 June 2008).

37 UN Human Rights Council ‘John Ruggie – Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’ (n. 36) paras 12–44.

38 Footnote Ibid. (n. 36) paras 45–55. For the substantive content of due diligence, the special representative noted that companies should look to the International Bill of Rights, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, as well as the ILO Declaration on Fundamental Principles and Rights at Work (para. 53).

39 Footnote Ibid. (n. 36) paras 56–85.

40 Footnote Ibid. (n. 36) paras 86–115.

41 UN Human Rights Council ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie – Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (9 April 2010) UN Doc A/HRC/14/27. (For a report of a multi-stakeholder consultation on ways to operationalise this framework, which has been made available since the completion of this article, see <www.ohchr.org> ‘Human Rights Issues – Business and Human Rights’.)

42 UN Human Rights Council ‘John Ruggie – Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (n. 41) paras 16–53.

43 Footnote Ibid. (n. 41) paras 54–87.

44 Footnote Ibid. (n. 41) paras 88–119.

45 The term ‘social rights’ is used loosely to refer to such human rights as the right to food, housing, health, education, etc. For the purposes of this article, ‘economic rights’ would therefore be more closely associated with labour rights, although the difficulties in trying to make such a distinction are noted; see, e.g., Alston (Reference Alston, Henkin and Hargrove1994, pp. 137–40).

46 In fact there is no express reference to a right to water in the Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III), the International Covenant on Civil and Political Rights (ICCPR) (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, or the International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. Both the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 and the Convention on the Rights of the Child (CRC) (adopted 20 November 1989, entered into force 2 September 1990) 15 UNTS 3 reference water, but in the context of another right and not as a distinct right in and of itself (CEDAW Art. 14(2)(h); CRC Art. 24(2)(c)).

47 UNCESCR (29th Session) ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights – General Comment No. 15 (2002) – The Right to Water (Arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’ (26 November 2002) UN Doc E/C.12/2002/11 para. 3. The General Comment notes that the right is also inextricably related to the rights to adequate housing and food, and should be seen in conjunction with other rights, including the right to life and human dignity.

48 WBCSD (2002) ‘Water for the Poor' p. 19. The WBCSD brings together 200 international companies committed to sustainable development through ‘economic growth, ecological balance, and social progress’.

49 International Conference on Water and the Environment (1992) Dublin Statement on Water and Sustainable Development Principle No. 4. It should be noted that the same principle also states that ‘it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price’.

50 International Freshwater Conference (2001) Ministerial Declaration; Bonn Recommendations for Action; The Bonn Keys.

51 WBCSD (2002) ‘Water for the Poor' pp. 3, 5.

52 Camdessus (Reference Camdessus2003).

53 For a recent review of developing country experiences with privatisation, see Marin (Reference Marin2009). The author notes that in the 1990s the population of developing and transition countries served by private operators grew from 6 to 94 million. By 2007, this number had grown to 160 million. However, since the late 1990s, the number of new contracts awarded have started to decrease. Today, about 7 percent of the urban population in the developing world is served by private operators (pp. 1–2).

54 It is readily acknowledged that many other types of corporations may affect the realisation of an individual's right to water. For example, pollution by oil companies may impact upon water quality, or overextraction of groundwater by bottling companies may impact on availability.

55 UN-HABITAT (2003, p. 180). The previous parent company of Thames Water, RWE was a member of the UN Global Compact. On 1 December 2006, Thames Water was acquired by Kemble Water Limited.

56 Veolia Environnement ‘Water’ <www.veolia.com/en/group/business-activities/water-management/> (29 April 2010); Suez Environnement (2009) ‘2009 Reference Document’ 41. (Veolia refers to Veolia Water, which is the largest of four divisions of Veolia Environment. Suez refers to Suez Environment.)

57 Interview with Officer2, Suez Environment.

58 In regards to the latter, Veolia's Waterdev programme started in 2002 and is designed to support decentralised co-operation by helping ‘to set up long-term partnerships with local authorities wanting to do the maximum to satisfy their people's basic needs’ (Veolia Water (2004) ‘Waterforce: Serving humanity and Development with our Expertise' 11). Suez's higher profile Water for All programme started in 1999 and provides water to nine million people living under the poverty line – the vast majority of whom reside in low-income areas. Its projects are carried out in partnership with public authorities and civil society (Suez (2005) ‘Water and Sanitation for All: Making the Right to Water a Reality').

59 Thames Water (2003) ‘Planet Water: Liquid Thinking, Practical Solutions' pp. 4, 59.

60 Saur (2006) ‘Présentation du Group Saur'.

61 AquaFed ‘Welcome’ <www.aquafed.org/index.html> (12 Feb 2010). The organisation represents all sizes of private operators. Its mission is to provide a channel between private providers and key international stakeholders; contribute to solving the world's water problems by sharing private operator expertise with the international community; and promote the option of private sector participation in water management as a solution that public authorities can chose (AquaFed (2005) ‘The International Federation of Private Water Operators: Filling a Gap' p. 3.)

62 AquaFed (2005) ‘The International Federation of Private Water Operators: Code of Ethics'.

63 Public Services International Research Unit (PSIRU) (2006) ‘Aquafed – Another Pressure Group for Private Water'. Thames is not a member of AquaFed.

64 The extensive number of documents reviewed are not listed in this article as to do so would make the bibliography excessively long. In reviewing the documentation, no formal content analysis was undertaken, but rather the written information was reviewed to look at the extent that, and the context in which, rights language, specifically the right to water, came up.

65 See, e.g., Mitchell (Reference Mitchell1994); Kumar, Stern and Anderson (Reference Kumar, Stern and Anderson1993).

66 In total, eleven interviewees from the private sector were interviewed. Note that interviewees have been randomly assigned an identification number (e.g. Officer# Veolia). This number is not based on hierarchy or any kind of seniority. The majority of the fieldwork for this investigation was carried out in Paris (France), Saint-Quentin-en-Yvelines (France) and Reading (United Kingdom) between May and July 2006. It is acknowledged that since the research for this article was completed some developments may have occurred.

67 At this juncture, it should also be noted that in order to provide some sort of coherent analysis generalisations have been made from various interviewees' comments from within one organisation. It is acknowledged that each individual interviewed may not necessarily have expressly stated an identical opinion.

68 The Suez Advisory Council comprises independent experts and former decision-makers who explore issues of strategic importance to the company.

69 Interview with Officer2, Suez Environment; Mestrallet, Gérard ‘La Vraie Bataille de l'Eau' Le Monde (Paris, France 26 October 2001) p. 18: ‘Le droit universel de l'accès à l'eau doit être reconnu. Notre métier consiste à faire chaque jour de ce droit une réalité.’

70 Suez (2001) ‘Bridging the Water Divide'; Mestrallet (Reference Mestrallet2002).

71 Interview with Officer3, Suez Environment; Interview with Officer2, Suez Environment.

72 Hunt (Reference Hunt2002) as noted in COHRE (Centre on Housing Rights and Evictions) (2002) ‘The Right to Water and The International Covenant on Economic, Social and Cultural Rights' (paper presented at the Right to Water Roundtable, November 2002) p. 6.

73 COHRE (2002) ‘The Right to Water and The International Covenant on Economic, Social and Cultural Rights' (paper presented at the Right to Water Roundtable, November 2002) p. 5. Apparently, one CESCR member tried to ensure General Comment No. 15 disallowed private sector operation in the delivery of water services.

74 General Comment No. 15 (n. 47) paras 49, 50; see also reference to the private sector in para. 27.

75 Prior to 2002, only a few academic articles examined this issue: McCaffrey (Reference McCaffrey1992); Gleick (Reference Gleick1999). Since 2002, there has been an ever-growing body of literature on the subject: see, e.g., Kiefer and Brölmann (Reference Kiefer and Brölmann2005); McCaffrey (Reference McCaffrey, Weiss, Chazournes and Bernasconi-Osterwalder2005); Dupuy (Reference Dupuy2006).

76 See, e.g., the Tully versus Langford debate (Tully, Reference Tully2005); Langford, Reference Langford2006a; Tully, Reference Tully2006; Langford, Reference Langford2006b).

77 With the exception of Saur, it was specifically stated that an international right to water exists (see, e.g., AquaFed (2006) ‘Statements on the Right to Water and the Role of Local Governments' (paper presented at the Fourth World Water Forum March 2006), Interview with Officer1, AquaFed; Veolia Water (2005) ‘Access to Drinking Water for All: Veolia Water's Contribution' p. 17, Interview with Officer2, Veolia Water; Suez (2005) ‘Water and Sanitation for All: Making the Right to Water a Reality', Interview with Officer2, Suez Environment; Thames Water (2003) ‘Planet Water: Liquid Thinking, Practical Solutions' p. 17, Interview with Officer2, Thames Water). A representative from Saur explained that the company did not have a position on the right to water, but then went on to explain that the company's work involves bringing technical solutions to communities to resolve their right to water (Interview with Officer1, Saur).

78 This was in striking contrast to other non-state actors, such as the international or inter-governmental organisations who were interviewed as part of a larger investigation. As discussed in Russell (Reference Russell2010), access to key informants, particularly senior individuals in the various UN agencies water groups, was difficult, in large part due to their hesitancy to even discuss the subject.

79 Overall, it was generally admitted that General Comment No. 15 has no effect or influence on the work of the TNCs. For example, it was not seen as a reference point for their CSR or international work. The main purpose it might have served was to reinforce the position that an international right to water existed and to contribute to raising the profile of water, and right to water language, in international discussions.

80 The legal status of General Comment No. 15 was seen to be similar (if not weaker) to international political declarations, such as the MDGs or the World Summit on Sustainable Development (WSSD) commitments.

81 See, e.g., Interview with Officer1, Veolia Environment; Interview with Officer3, Veolia Water; Interview with Officer2, Thames Water.

82 For example, the Resolution on the Right to Water in Member States of the European Union and the CRC, which references water. Note that the Suez website and Sustainable Development Report reference the ICESCR when discussing the right to water (Suez Environment ‘Access to Water and Sanitation’ <www.suez-environment.com> (22 October 2006); Suez (2004) ‘Activities and Sustainable Development Report' p. 118).

83 Sarfaty (Reference Sarfaty and Morgan2007, p. 94) describes two major frameworks for viewing human rights in the development context: the functionalist or instrumental framework sees human rights ‘as enhancing development effectiveness and making good business sense’. The intrinsic or normative framework defines human rights as ends in themselves. The legal subgroup sees human rights as legal obligations derived from the international human rights regime, whereas the moral subgroup sees human rights as ethical principles based on notions of human dignity. As noted above, AquaFed was the exception to this, explaining the legal foundations to the right to water.

84 The reciprocal contribution was also recognised. While some interviewees saw little practical distinction between the two, key differences between the two agendas were noted, including the fact the MDG on water is a time-limited and less comprehensive commitment.

85 Interview with Officer3, Suez Environment; see also Moss, Jack and others (2003) ‘Valuing Water for Better Governance: How to Promote Dialogue to Balance Social, Environmental and Economic Values? (sponsored by CEO Panel Business and Industry)'.

86 Interview with Officer1, Suez Environment.

87 AquaFed (2006) ‘Statements on the Right to Water and the Role of Local Governments' (paper presented at the Fourth World Water Forum, March 2006); AquaFed ‘Private Water Operators Call to Turn the Right to Water into a Reality for All People' press release (19 March 2006).

88 AquaFed (2006) ‘Statements on the Right to Water and the Role of Local Governments' (paper presented at the Fourth World Water Forum, March 2006).

89 Interview with Officer1, AquaFed.

90 See AquaFed ‘News and Press’ <www.aquafed.org/press.html> (22 February 2010) for further information.

91 Interview with Officer2, Suez Environment.

92 Interview with Officer1, Suez Environment.

93 Suez (2005) ‘Water and Sanitation for All: Making the Right to Water a Reality'.

94 Interview with Officer1, Suez Environment.

95 Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentine Republic (ICSID (International Centre for Settlement of Investment Disputes) Case No. ARB/03/19). This investment dispute centres around the water distribution and sewage systems of the city of Buenos Aires and surrounding municipalities. Suez and Veolia are claiming compensation as a result of emergency economic measures employed by the Argentine government during the economic crisis in 2002. Interestingly, the arbitration panel took into account ‘human rights considerations’ when deciding that the case involved matters of public interest and allowed petitioners, five NGOs, to apply for leave to make amicus curiae submissions.

96 In 2005, the Bolivian government announced the termination of its contract with Aguas del Illimani (the majority shareholder of which was Suez) and the re-nationalisation of the water and sewage system in El Alto. Aguas de Illimani claimed investment losses. The case was settled in December 2006.

97 Interview with Officer1, Suez Environment.

98 Interview with Officer2, Suez Environment.

99 See, e.g., Suez ‘Water as a Right’ <www.suez-environnement.com (25 February 2010)>; Suez (2008) ‘Activities and Sustainable Development Report’ p. 50; Suez (2007) ‘Sustainable Development Annual Report’ p. 85.

100 Interview with Officer1, Veolia Environment.

101 Veolia Environment (2005) ‘Sustainable Development Report' p. 12. The Veolia Environment (2008) ‘Annual and Sustainability Report’ mentions that the services it manages are essential to secure an adequate standard of living (p. 64).

102 Veolia Water ‘A Common Resource’ <www.veoliawater.com (26 February 2010)>; Veolia Water (2008) ‘Business Overview’ p. 37.

103 Interview with Officer1, Veolia Environment.

104 Interview with Officer3, Veolia Water.

105 Interview with Officer1, Veolia Environment.

106 Thames Water (2003) ‘Planet Water: Liquid Thinking, Practical Solutions'; Thames Water (2004) ‘Corporate Responsibility Report'; Thames Water (2005) ‘Corporate Responsibility Report'; Thames Water (2006/2007) ‘Corporate Responsibility Report’ mentions the right in the context of an NGO's work it supports (25); Thames Water (2007/2008) ‘Corporate Responsibility Report’; Thames Water (2008/2009) ‘Corporate Responsibilty Report’. Its Corporate Responsibility Policy and Sustainable Procurement Policy recognise human rights.

107 Interview with Officer1, Thames Water.

108 Interview with Officer1, Thames Water; Interview with Officer2, Thames Water. Note that the WSUP (2006) Business Ethics Policy discusses human rights, particularly with respect to access to water and sanitation (p. 2). Its website now explains that WSUP and its members believe all people have a right to water, and utilities and municipalities have an obligation to provide universal services (WSUP ‘The Growing Challenge’ <www.wsup.com/whatwedo/challenge.htm> (10 May 2010)).

109 Interview with Officer1, Saur.

110 AquaFed ‘Private Water Operators Call to Turn the Right to Water into a Reality for All People' press release (19 March 2006).

111 Interviewees from the smaller corporations indicated that they suspected Suez and Veolia were likely using the language because it may mean further investment opportunities for the private sector (Interview with Officer1, Thames Water; Interview with Officer1, Saur).

112 Interview with Officer2, Veolia Water, seemed to indicate that energy should also be a human right. In an interview with Officer1, Saur, the right to water was referred to as being a political statement similar to a right to energy (and Saur was uninterested in such political statements).

113 Interview with Officer2, Suez Environment.

114 ‘Friends of the Right to Water’ is an international civil society network promoting the adoption of an international treaty on the right to water. The (2005) ‘Key Principles for an International Treaty on the Right to Water’ state that the obligation to fulfil includes the provision of water on a not-for-profit basis (para. 7(a)). The definition of ‘not-for-profit’ precludes the provision of essential water services where profits are provided to private (but not public) shareholders.

115 General Comment No. 15 (n 47) para. 12(c)(ii).

116 Concern over large-scale implementation of a free basic water policy, such as in South Africa, was hinted at, although no outright opinion was ever stated regarding the policy.

117 Interview with Officer3, Suez Environment; Suez (2002) ‘Making the Right to Water a Reality' (paper presented at the Right to Water Dinner Seminar, November 2002); Interview with Officer1, AquaFed; see also Payen, Gérard (2005) ‘The Right to Have Access to Drinking Water: Economic, Institutional and Practical Factors' (paper presented at the Institut de Droit d'Expression et d'Inspiration Françaises, September 2005).

118 It was thought that some governments may not want to take a position regarding the right to water as they are unsure as to how it fits with their existing development framework and about the impact it may have on their official development assistance (ODA) policy.

119 Interview with Officer1, Suez Environment, who explained that it was not the role of Suez to promote the right at the national level and it must be politically aware of its actions and words. If the government decides that improving the living conditions of slums is not a priority, Suez should not do it. Interview with Officer2, Suez Environment, who did mention that success stories from other countries might be raised in discussions with public authorities.

120 Suez (2002) ‘Making the Right to Water a Reality' (paper presented at the Right to Water Dinner Seminar, November 2002) p. 1.

121 AquaFed (2006) ‘Statements on the Right to Water and the Role of Local Governments' (paper presented at the Fourth World Water Forum, March 2006).

122 AquaFed ‘Private Water Operators Call to Turn the Right to Water into a Reality for All People' press release (19 March 2006). Similar statements are made in AquaFed's (2007) ‘Submissions to the OHCHR Study on Human Rights Obligations related to Equitable Access to Safe Drinking Water and Sanitation’.

123 Interview with Officer1, AquaFed.

124 Interview with Officer2, Suez Environment.

125 Suez (2006) ‘World Water Forum 2006: Local Actions for a Global Challenge' p. 3. Similarly, the Suez (2008) ‘Activities and Sustainable Development Report’ states that ‘[b]eyond recognizing this right, the public authority responsible for enforcing it should be identified, along with the powers and obligations of that authority, and finally, an operator must be put in charge of the operational implementation of the corresponding services’ (p. 50).

126 Interview with Officer1, Suez Environment.

127 Interview with Officer1, Veolia Environment.

128 Interview with Officer1, Thames Water.

129 Interview with Officer1, Saur.

130 Alston (Reference Alston2005c, p. 768) citing Humphreys and Varshney (Reference Humphreys and Varshney2004, p. 32) in relation to conflict situations.

131 Interview with Officer1, Thames Water.

132 Interview with Officer2, Suez Environment; Suez (2005) ‘Water and Sanitation for All: Making the Right to Water a Reality' p. 5.

133 As discussed above, although Saur officially stated that it did not have a position on the right to water, it then went on to use the language and explain that it was involved in realising people's right to water. However, no evidence of the language could be found in the Saur documentation.

134 As noted above, the reciprocal relationship was also recognised.

135 As discussed above, Thames and Saur were the exception to this and were of the opinion that the meaning of the right to water was not clear.

136 Addo (Reference Addo1999, pp. 3–4).

137 UN Human Rights Council ‘John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (n. 31) para. 14.

138 UN Commission on Human Rights ‘John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises' (n. 11) para. 53.

139 For further information, including the report of the UN independent expert, which came out after the completion of this article, see <www.ohchr.org> ‘Human Rights Issues – Water and Sanitation’.

140 For example, the anti-privatisation movement was equating the right with public service delivery only (see footnote 114). The above may be considered to constitute a ‘with the law’ pattern of legal consciousness as described in Ewick and Silbey (Reference Ewick and Silbey1998, p. 48). The right to water is essentially envisioned as something to be ‘“played” as a game’ to serve one's own particular interests and strategies.

141 See Russell (Reference Russell2010).

142 Note that the report by the Institute for Human Rights and Business (2009) ‘Business, Human Rights and the Right to Water: Challenges, Dilemmas and Opportunities (Roundtable Consultative Report) (Draft)’ does slip into this language of rights-based approaches on occasion.

143 Interestingly, the CEO Water Mandate, a private–public initiative launched at a Global Compact meeting in 2007 to assist companies to develop sustainable water policies and practices does not include human rights as an area of focus. A discussion paper entitled ‘Water and Human Rights: Exploring the Roles and Responsibilities of Business’ (2009) is available on its website.

144 UN Human Rights Council ‘John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (n. 31) para. 3.

145 Footnote Ibid. (n. 31) paras 54, 55.

146 Footnote Ibid. (n. 31) para. 52.

147 Footnote Ibid. (n. 31) para. 24. In Castan Centre for Human Rights Law, International Business Leaders Forum and OHCHR (2008) ‘Human Rights Translated: A Business Reference Guide’ it is stated that ‘[c]ompanies that assume traditional government functions (eg the provision of infrastructure and utilities …) may face a greater level of scrutiny with regard to their human rights performance, and may be exposed to a greater risk of legal liability in the case of a breach of human rights law’ (p. xi).

148 Potter and McCauley Sine (the Coca-Cola Company) (Reference Potter, Mccauley sine, Gross and Compa2009, p. 189).

149 Castan Centre for Human Rights Law, International Business Leaders Forum and OHCHR (2008) ‘Human Rights Translated: A Business Reference Guide’ p. xiii.

150 UN Human Rights Council ‘John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (n. 31) para. 57; UN Human Rights Council ‘John Ruggie – Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’ (n. 36) para. 50; UN Human Rights Council ‘John Ruggie – Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (n. 41) para. 58.

151 UN Human Rights Council ‘John Ruggie – Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’ (n. 36) paras 71, 59.

152 UN Human Rights Council ‘John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (n. 31) para. 60.

153 Business Leaders Initiative on Human Rights ‘Guide for Integrating Human Rights into Business Management’ found at <www.blihr.org/>. Note the scope of the rights in the Guide does appear to be somewhat limited.

154 UN General Assembly ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ Annex ‘Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines’ (11 August 2008) A/63/263.

155 Institute for Human Rights and Business (2009) ‘Business, Human Rights and the Right to Water: Challenges, Dilemmas and Opportunities (Roundtable Consultative Report) (Draft)’ p. 4.

156 Note that the special representative is exploring possible guidance for all parties on ‘responsible contracting’ in the investment context. He explains that if the human rights implications of long-term investment projects are considered at the contracting stage, subsequent problems may be reduced. (UN Human Rights Council ‘John Ruggie – Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (n. 41) para. 25.)

157 Veolia (2008) ‘Annual and Sustainability Report’ p. 65, although in the context of its employees.

158 This may involve providing an avenue for complaints.

159 This may necessitate the use of flexible payment schemes or similar mechanisms. Others have suggested that water companies should take steps to ensure that their services extend to outlying areas and vulnerable groups, as well as to ensure that the lowest possible fee is charged for services to low-income households. It has also been suggested that the companies consult with, and encourage the participation of, locals in water-related decision-making (Castan Centre for Human Rights Law, International Business Leaders Forum and OHCHR (2008) ‘Human Rights Translated: A Business Reference Guide’ p. 124).

160 UN Human Rights Council ‘John Ruggie – Protect, Respect and Remedy: A Framework for Business and Human Rights’ (n. 31) para. 80, when discussing complicity in international criminal law.

161 Even if the country does not recognise the right to water, or in fact explicitly opposes it, related internationally recognised rights, such as the right to an adequate standard of living, the right to health or the right to equality may be able to be relied upon.

162 Alston (Reference Alston and Alston2005a, p.19).

163 See, e.g., Keck and Sikkink (Reference Keck and Sikkink1998); Finnemore and Sikkink (Reference Finnemore and SiKkink1998); Risse, Ropp and Sikkink (Reference Risse, Ropp and Sikkink1999).

164 E Potter and M McCauley Sine (the Coca-Cola Company) (Reference Potter, Mccauley sine, Gross and Compa2009, pp. 183, 193).

165 Castan Centre for Human Rights Law, International Business Leaders Forum and OHCHR (2008) ‘Human Rights Translated: A Business Reference Guide’ p. viii. This approach could be seen as an example of ‘CSR for law’ in which CSR initiatives complement the law and make it more effective (see McBarnet, Reference McBarnet, McBarnet, Voiculescu and Campbell2007).

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