The Human Rights to Water and Sanitation and Private Sector Participation

(BY HUGO)

The right(s) to water and sanitation generate(s) interest in international development and water law.

Today, the UN independent expert on human rights and access to water and sanitation, Ms Catarina de Albuquerque, holds a public consultation in Geneva on private sector participation in the provision of water and sanitation from a humna rights perspective.

The independent expert does not tackle the issue of human rights obligations imposed on transnational corporations (TNCs). This appears justified because states bear the brunt of the obligations with respect to human rights in international public law, and because TNCs remain marginal actors among a variety of other small scale private providers.

This is sensible: regulation of natural monopoly by the state in water services is recommended as a cure to private sector excesses and potential violations of human rights.

However, it also leads to the overburdenning of developping states with very limited capacity. It is doubtfull whether developping states can devise, monitor and enforce a sophisticated reglatory system for drinking water quality protection while a contry as rich as the USA is failing in this task as de facto demonstrated by the Toxic Waters Series from the NYT.

Moreover, neglect of the TNCs as significant actors for the respect of human rights leads to neglecting new emerging normative frameworks such as the OECD Guidelines for Multinational Enterprises (in particular, see p.14, General Policies, §2) that could improve human rights compliance by non-state actors (on the positive effect of the Guidelines, see Larry Backer, «Rights and Accountability in Developement...», in particular p.283 & ff.)

The independent expert also takes particular care to state that human rights are neutral to economic models in general and models of service provision more specifically (for example, see UN HCHR §52). At face value, this is in line with orthodox human rights theory.

However, this apparent neutrality is tested when the independent expert declares that challenges to access to water and sanitation include lack of transparent and democratic decision making, power asymmetries in negociations processes between TNCs and host states, unaffordable or unavailable services for the poorest...

All these challenges imply value judgements at the economic and political levels. In the end, human rights are not neutral, and to pretend so might not be the most adequate position in the long term. Human rights need their substantive values to perform their reforming function.

Finally, the independent expert shows a clear departure from traditional international human rights law theory by orienting the discussion towards standards setting with respect to water quality, regularity of supply, safety of sanitation facilities and affordability of services.

This is an essential step towards concrete objectives, effective monitoring, and possible attainment of the objectives. However, ex ante standard setting for human rights is risky.

For example, the independent expert refers to the World Health Organisation Guidelines as standards for water quality. These guidelines specifically mention that scarce resources require targeted regulation based on a risk-benefit approach (p.2).

Through this approach, human rights become associated to regulatory frameworks that aim at saving a majority by sacrificing a minority, something that could arguably be considered anathema to a more traditional vision of human rights.

In summary, building an entire water resources management regime on human rights appears unworkable and leads to inherent contradictions. The international development community should focus more on human rights when they perform their most potent function: ex post discursive recourses to redress or compensate structural imbalances, imperfections or failures in prospective water resources management regimes.