EcoSanRes: Water as a human right versus private commodity [1 Attachment]
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Martin Regelsberger
Sep 10, 2010, 9:44:11 AM9/10/10
to Ecosanres Group
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Dear Ms. De Albuquerque,
We are writing in response to your report regarding the human rights obligations and responsibilities that apply when Non-State Actors take on provision of water supply and sanitation. We appreciate your attention to this important matter and your thoughtful effort to ensure that the human right to water is protected within the context of private providers.
We are pleased that one key finding of this report is that States are the primary duty-bearer for the right to water, and that they do not abdicate that duty even if a non-State actor has been designated as a primary service provider. We also appreciate your attention to the role of informal, local providers of water and sanitation services, which in the past have too often been ignored in the discussion of the human right to water.
In an ideal world, the measures you so carefully have set forth could be expected to ensure the right to water and sanitation for all people. Our concern is the extent to which we live in a far less than ideal world which is best characterized by the inequality between those who have power and those who do not. This is not just within and between countries, but also between countries and their people on the one hand and the powerful institutions which have evolved in both the private and public sectors on the other hand. We have seen structural adjustment requirements tied to World Bank loans for water/sewer infrastructure that favor the private sector. We have seen the ways in which transnational corporations have exerted their power so as to deny people their right to water and sanitation. With this in mind, we are concerned that many countries do not have the resources, even if they have the will, to ensure that powerful transnational corporations put their obligation to ensure the human right to water above their obligation to their shareholders.
We appreciate the complexity of international trade and investment law and human rights and understand your decision to refrain from addressing this complicated issue. Still, States have been required to adopt private provision models that are couched in a legal framework that favors private interests over human rights. The current international trade framework renders States nearly powerless to withdraw from contracts with the private sector even when human rights violations occur.
As you know, these concerns have been raised by our organizations, as well as many other communities and governments; in particular, they have been discussed in detail through submissions that we and other organizations provided during the consultation you conducted that informed the drafting of this report. We appreciate that your report addresses instances where the provision of water and sanitation services by the private sector has undermined the ability of people and governments to exercise their rights and fulfill their obligations related to water and sanitation since this underscores the seriousness of these concerns.
We believe that, while the “due diligence” called for in your report is an important element, this falls short of what we consider necessary to create a fairer balance of power which is a prerequisite to ensuring the human right to water. We would like to see clear language that loans from the World Bank and regional development banks should not favor private providers. We believe you have alluded to this concern in your report in Para. 35 where you write that ‘Democratic decision-making implies that Governments must not be pushed into the decision to delegate service provision by donor conditionalities.’
Beyond our concern that donor countries and international financial institutions set conditionalities which either explicitly or implicitly promote private sector participation, we are concerned that they also exert influence in their capacity as legal and technical advisors to States. States often lack the capacity to conduct the very processes that are necessary to adequately ensure the human right to water and sanitation is being protected. Thus, the ‘decision’ to allow private sector participation, and the manner in which such participation is overseen, is all too often a foregone conclusion. This pattern of policy capture is well-documented and has even been acknowledged by these same players. While representatives of the private sector use the terms you’ve laid out – ‘ideological’ and ‘emotional’ – to disparagingly refer to the water justice movement’s legitimate concerns about privatization, these terms can be equally applied to proponents of privatization, given this record. .
We support your recommendations that States enact ‘comprehensive and coherent plans’ to fully realize the human right to water that ensures those people and communities most undeserved and marginalized will be full and complete participants and beneficiaries in such efforts. We believe that these plans should prioritize access to water for basic household use and local, small-scale agricultural use over other more intensive uses, within a conservation framework that protects both water resources and the ecological systems within which they are intertwined.
Our second concern regarding the framing of your report is that, while you address the issue of privatization, you do not address commodification. We believe that this issue relates to your recognition that there is ‘an inherent tension between commercial viability and direct full cost recovery on the one hand and providing affordable services to the poor on the other hand.” However, we believe it is essential to take this recognition a step further and to address commodification itself.
The trend toward commodification of water will, if fully realized, have huge implications for not only the ability of States to regulate non-State actors within the water service sector, but also the ability of States to govern and manage water resources in a manner that respects and affirms the social, cultural and ecological value and importance of their water resources.
We have broader concerns about how water is valued by societies; whether water is treated as a public good – and as part of the public trust – or as an economic good, or commodity. Allowing the market to set the price for water is anathema to the human right to water. We are not saying water should be free. There are real costs related to the service provision of water, but this does not have to do with a market price for water. Simply put, no one should be denied water for lack of ability to pay. There is no government service for which cross subsidies are more justified than water. The private sector should have no role in setting policy or determining access, rather, the appropriate role for corporations is in laying pipes, building infrastructure, recycling dirty water and other such contractual arrangements.
In conclusion, we call on States – particularly the members of the UN Human Rights Council – to recognize that the overall findings and recommendations of this report may be necessary to ensure that they, as primary duty-bearers, are fulfilling this right. However, we also call on States to recognize that these recommendations alone are not sufficient to ensure that this right is realized and that the private sector does not undermine or violate this right.
Deliberate action must be taken to address the undue influence the private sector has had over both development policy and global water policy. States must embrace their role as the primary duty-bearer for this right and begin prioritizing the work necessary to ensure they are able and willing to fulfill this right. More specifically, we call upon States to renew and restore their commitments towards developing or maintaining publicly managed and non-profit models of service delivery for water and sanitation. In this, we are heartened by recent passage by the UN General Assembly of a resolution affirming the right to water and sanitation. We hope that the resolution’s passage will generate momentum within the UN system to formally begin determining how the right to water shall be fulfilled – and protected against violation – as a public trust and part of the global commons by UN Member States.
We and our many allies will also have additional thoughts on the specific recommendations within your report, and hope to have additional opportunities to share these thoughts with you in the near future. We thank you once again for your efforts and look forward to a continued dialogue with you and your colleagues on how best to ensure that the human right to water and sanitation is realized by and for all people.
Sincerely yours,
xx
__________________________________
Darcey O'Callaghan
International Policy Director
Food & Water Watch
1616 P Street NW, Suite 300
Washington, DC 20036
W: +1(202) 683-2523
M: +1(202) 309-1440
Fax: +1(202) 683-2524
http://www.foodandwaterwatch.org/
docal...@fwwatch.org
Dear colleagues,
The Independent Expert
on the issue of human rights obligations related to access to safe
drinking water and sanitation, Catarina de Albuquerque,
has published a report about "Human Rights Obligations Related to
Non-State Service Provision in Water and Sanitation", which you can
download from the Independent Experts webpage of Annual
Reports in the UN languages. Find the English version attached here
for ease of reference.
A group of organisations, Food
and Water Watch, Corporate
Accountability International, Alliance for Democracy
and Blue Planet Project
have reservations about this report, the general issue of water
privatisation and the attitude of International and UN organisations
towards it. They have published a call with a draft letter to the
Independent Expert, which they ask water and sanitation organisations
and experts to sign. Find the call and draft letter below.
For your signature or potential comments contact one of the co-authors
of the letter, Darcey O'Callaghan, at his email address: docal...@fwwatch.org.
Best regards,
Martin
Subject: Sign on letter for organizations to join regarding private
sector participation in water
Dear colleagues,
A small committee has drafted a letter in response to the
report by Human Rights Council Independent Expert, Catarina de
Albuquerque, on
private sector participation in water. We are collecting
organizational
sign-ons until 9am EST Tuesday, 9/13. As
there has been a process in place to draft this letter, please refrain
from
suggesting any significant changes, although commentary is certainly
welcome.
We regret the short timeline but would like to make our response public
and get
it into the hands of HRC members, GA representatives and UN Water staff
before
the IE presents her scheduled report to the HRC on 9/15.
Please send organizational signatures to docal...@fwwatch.org
by 9am EST Tuesday, 9/13.
Thanks,
Darcey O'Callaghan, FWW; Mark Hays, Corp. Accountability
Int'l; Ruth Caplan, Alliance for Democracy; Emma Lui, Blue Planet
Project
~~~
DRAFT LETTER – September 10, 2010
Dear Ms. De Albuquerque,
We are writing in response to your report regarding the human rights obligations and responsibilities that apply when Non-State Actors take on provision of water supply and sanitation. We appreciate your attention to this important matter and your thoughtful effort to ensure that the human right to water is protected within the context of private providers.
We are pleased that one key finding of this report is that States are the primary duty-bearer for the right to water, and that they do not abdicate that duty even if a non-State actor has been designated as a primary service provider. We also appreciate your attention to the role of informal, local providers of water and sanitation services, which in the past have too often been ignored in the discussion of the human right to water.
In an ideal world, the measures you so carefully have set forth could be expected to ensure the right to water and sanitation for all people. Our concern is the extent to which we live in a far less than ideal world which is best characterized by the inequality between those who have power and those who do not. This is not just within and between countries, but also between countries and their people on the one hand and the powerful institutions which have evolved in both the private and public sectors on the other hand. We have seen structural adjustment requirements tied to World Bank loans for water/sewer infrastructure that favor the private sector. We have seen the ways in which transnational corporations have exerted their power so as to deny people their right to water and sanitation. With this in mind, we are concerned that many countries do not have the resources, even if they have the will, to ensure that powerful transnational corporations put their obligation to ensure the human right to water above their obligation to their shareholders.
We appreciate the complexity of international trade and investment law and human rights and understand your decision to refrain from addressing this complicated issue. Still, States have been required to adopt private provision models that are couched in a legal framework that favors private interests over human rights. The current international trade framework renders States nearly powerless to withdraw from contracts with the private sector even when human rights violations occur.
As you know, these concerns have been raised by our organizations, as well as many other communities and governments; in particular, they have been discussed in detail through submissions that we and other organizations provided during the consultation you conducted that informed the drafting of this report. We appreciate that your report addresses instances where the provision of water and sanitation services by the private sector has undermined the ability of people and governments to exercise their rights and fulfill their obligations related to water and sanitation since this underscores the seriousness of these concerns.
We believe that, while the “due diligence” called for in your report is an important element, this falls short of what we consider necessary to create a fairer balance of power which is a prerequisite to ensuring the human right to water. We would like to see clear language that loans from the World Bank and regional development banks should not favor private providers. We believe you have alluded to this concern in your report in Para. 35 where you write that ‘Democratic decision-making implies that Governments must not be pushed into the decision to delegate service provision by donor conditionalities.’
Beyond our concern that donor countries and international financial institutions set conditionalities which either explicitly or implicitly promote private sector participation, we are concerned that they also exert influence in their capacity as legal and technical advisors to States. States often lack the capacity to conduct the very processes that are necessary to adequately ensure the human right to water and sanitation is being protected. Thus, the ‘decision’ to allow private sector participation, and the manner in which such participation is overseen, is all too often a foregone conclusion. This pattern of policy capture is well-documented and has even been acknowledged by these same players. While representatives of the private sector use the terms you’ve laid out – ‘ideological’ and ‘emotional’ – to disparagingly refer to the water justice movement’s legitimate concerns about privatization, these terms can be equally applied to proponents of privatization, given this record. .
We support your recommendations that States enact ‘comprehensive and coherent plans’ to fully realize the human right to water that ensures those people and communities most undeserved and marginalized will be full and complete participants and beneficiaries in such efforts. We believe that these plans should prioritize access to water for basic household use and local, small-scale agricultural use over other more intensive uses, within a conservation framework that protects both water resources and the ecological systems within which they are intertwined.
Our second concern regarding the framing of your report is that, while you address the issue of privatization, you do not address commodification. We believe that this issue relates to your recognition that there is ‘an inherent tension between commercial viability and direct full cost recovery on the one hand and providing affordable services to the poor on the other hand.” However, we believe it is essential to take this recognition a step further and to address commodification itself.
The trend toward commodification of water will, if fully realized, have huge implications for not only the ability of States to regulate non-State actors within the water service sector, but also the ability of States to govern and manage water resources in a manner that respects and affirms the social, cultural and ecological value and importance of their water resources.
We have broader concerns about how water is valued by societies; whether water is treated as a public good – and as part of the public trust – or as an economic good, or commodity. Allowing the market to set the price for water is anathema to the human right to water. We are not saying water should be free. There are real costs related to the service provision of water, but this does not have to do with a market price for water. Simply put, no one should be denied water for lack of ability to pay. There is no government service for which cross subsidies are more justified than water. The private sector should have no role in setting policy or determining access, rather, the appropriate role for corporations is in laying pipes, building infrastructure, recycling dirty water and other such contractual arrangements.
In conclusion, we call on States – particularly the members of the UN Human Rights Council – to recognize that the overall findings and recommendations of this report may be necessary to ensure that they, as primary duty-bearers, are fulfilling this right. However, we also call on States to recognize that these recommendations alone are not sufficient to ensure that this right is realized and that the private sector does not undermine or violate this right.
Deliberate action must be taken to address the undue influence the private sector has had over both development policy and global water policy. States must embrace their role as the primary duty-bearer for this right and begin prioritizing the work necessary to ensure they are able and willing to fulfill this right. More specifically, we call upon States to renew and restore their commitments towards developing or maintaining publicly managed and non-profit models of service delivery for water and sanitation. In this, we are heartened by recent passage by the UN General Assembly of a resolution affirming the right to water and sanitation. We hope that the resolution’s passage will generate momentum within the UN system to formally begin determining how the right to water shall be fulfilled – and protected against violation – as a public trust and part of the global commons by UN Member States.
We and our many allies will also have additional thoughts on the specific recommendations within your report, and hope to have additional opportunities to share these thoughts with you in the near future. We thank you once again for your efforts and look forward to a continued dialogue with you and your colleagues on how best to ensure that the human right to water and sanitation is realized by and for all people.
Sincerely yours,
xx
__________________________________
Darcey O'Callaghan
International Policy Director
Food & Water Watch
1616 P Street NW, Suite 300
Washington, DC 20036
W: +1(202) 683-2523
M: +1(202) 309-1440
Fax: +1(202) 683-2524
http://www.foodandwaterwatch.org/
docal...@fwwatch.org
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