27. WATER

DANY Channraksmeychhoukroth, RADU Mares

Introduction

The human right to water is not explicitly mentioned in human rights treaties, but the UN has during the last decade recognized it due to its crucial importance for health and livelihoods. Just as freedom of association is essential for securing other labour rights (chapter 19), the right to water can be seen as an ‘enabling’ right that is essential for realizing many other human rights. The human right to water emphasizes the value of water as a public good and is thus also a response to decades of privatization of public water services in developed and developing countries alike. The responsibility of international financial institutions and the international investment law regime (chapter 3) has been constantly emphasized in relation to water privatizations. As with provision of security (chapter 26), the management of water resources benefits from comprehensive  assessments that identify the deep causes of abuse (chapter 9) and promote comprehensive solutions involving partnerships between private and public actors (chapter 5). Leading companies increasingly recognize the value of water and water security for all stakeholders involved. What exactly a right to water means has been clarified by the UN human rights system (chapter 1) and the Agenda 2030 further emphasizes the sustainable management of water resources. With water pollution reaching ever-higher levels in many countries, there is a growing awareness of the interdependency of human rights protection and environmental protection (chapter 29). Participation, transparency, and access complaint mechanisms (chapters 6-7) are essential to the sustainable use of water resources.

In Cambodia, businesses can affect the right to water in different contexts. First, water service providers, such as water supply authorities in Phnom Penh and provinces, have major roles in providing access to clean water and sanitation to certain areas. Their failures to ensure sufficient water extraction, proper treatment, and full area coverage could have serious impacts on people’s life as well as other entities’ operations. Second, the heavy water users, i.e. those consuming large quantities of water like some manufacturing operations, can easily deprive or limit other water users in the areas. Third, hydropower plants alter natural flows of water relied on by local/indigenous communities thus affecting the rights of those who have relied on their use. Thus the management of water usually leads to complicated economic, social, and environmental issues in Cambodia. While water may have both an essential health value to individuals as well as cultural and religious significance to communities, it is also an important resource for business operations. Water management is a key element in Cambodia’s ambition to meet the UN SDGs and pursue a human rights-based approach to development.

Main Aspects

• Value of water
• State obligations
• Corporate due diligence
• Human rights analysis of water services
• Challenges regarding water and sanitation
• Privatization of water services
• Access to water for the poor
• Impact assessment
• Water management
• Corporate reporting
• Mining industry and water
• Investment arbitration
• Partnerships
• Small-scale providers and informal economy

Background

World Bank, Water^[1]

Water is at the center of economic and social development: it is vital to maintain health, grow food, generate energy, manage the environment, and create jobs. Water availability and management impacts whether poor girls are educated, whether cities are healthy places to live, and whether growing industries or poor villages can withstand the impacts of floods or droughts.

However, 4.5 billion people lack safely managed sanitation services and 2.1 billion people lack access to safely managed drinking water services. And water-related hazards, including floods, storms, and droughts, are responsible for 9 out of 10 natural disasters. Climate change is expected to increase this risk, in addition to placing greater stress on water supplies. (…)

Of the 2.1 billion people who do not have access to safely managed water, 844 million do not have even a basic drinking water service. Of the 4.5 billion people who do not have safely managed sanitation, 2.3 billion still do not have basic sanitation services. As a result, every year, 361,000 children under 5 years of age die due to diarrhea related to poor sanitation and contaminated water, which are also linked to transmission of diseases such as cholera, dysentery, hepatitis A, and typhoid. (…)

Water security is among the top global risks in terms of development impact. It is also an integral part to the achievement of the Sustainable Development Goals (SDGs). The world will not be able to meet the sustainable development challenges of the 21st century — human development, livable cities, climate change, food security, and energy security — without improving management of water resources and ensuring access to reliable water and sanitation services. (…)

The combined effects of growing populations, rising incomes, and expanding cities will see demand for water rising exponentially, while supply becomes more erratic and uncertain.

Instruments

UN, Sustainable Development Goals^[2]

Goal 6. Ensure availability and sustainable management of water and sanitation for all

6.1 By 2030, achieve universal and equitable access to safe and affordable drinking water for all

6.2 By 2030, achieve access to adequate and equitable sanitation and hygiene for all and end open defecation, paying special attention to the needs of women and girls and those in vulnerable situations

6.3 By 2030, improve water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals and materials, halving the proportion of untreated wastewater and substantially increasing recycling and safe reuse globally

6.4 By 2030, substantially increase water-use efficiency across all sectors and ensure sustainable withdrawals and supply of freshwater to address water scarcity and substantially reduce the number of people suffering from water scarcity

6.5 By 2030, implement integrated water resources management at all levels, including through transboundary cooperation as appropriate

6.6 By 2020, protect and restore water-related ecosystems, including mountains, forests, wetlands, rivers, aquifers and lakes

6.a By 2030, expand international cooperation and capacity-building support to developing countries in water- and sanitation-related activities and programmes, including water harvesting, desalination, water efficiency, wastewater treatment, recycling and reuse technologies

6.b Support and strengthen the participation of local communities in improving water and sanitation management

UN General Assembly, The Human Right to Water and Sanitation^[3]

1. Recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights;

2. Calls upon States and international organizations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all (…)

UN General Assembly, The Human Rights to Safe Drinking Water and Sanitation^[4]

2. Recognizes that the human right to safe drinking water entitles everyone, without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use, and that the human right to sanitation entitles everyone, without discrimination, to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity, while reaffirming that both rights are components of the right to an adequate standard of living; (…)

5. Calls upon States: (…)

(d) To identify patterns of failure to respect, protect or fulfil the human rights to safe drinking water and sanitation for all persons without discrimination and to address their structural causes in policymaking and budgeting within a broader framework, while undertaking holistic planning aimed at achieving sustainable universal access, including in instances where the private sector, donors and non-governmental organizations are involved in service provision;

(e) To promote both women’s leadership and their full, effective and equal participation in decision-making on water and sanitation management and to ensure that a gender-based approach is adopted in relation to water and sanitation programmes (…)

(g) To approach the sanitation issue in a much broader context, taking into account the need to pursue integrated approaches;

(h) To consult and coordinate with local communities and other stakeholders, including civil society and the private sector, on adequate solutions to ensure sustainable access to safe drinking water and sanitation;

(i) To provide for effective accountability mechanisms for all water and sanitation service providers to ensure that they respect human rights and do not cause human rights violations or abuses;

6. Calls upon non-State actors, including business enterprises, both transnational and others, to comply with their responsibility to respect human rights, including the human rights to safe drinking water and sanitation (…)

UN General Comment on the Right to Water^[5]

1. Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. (…)

Normative content of the right to water

(a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. (…)

(b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. (…)

(c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:

(i) Physical accessibility: Water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. (…)

(ii) Economic accessibility: Water, and water facilities and services, must be affordable for all. (…)

(iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds; and

(iv) Information accessibility: Accessibility includes the right to seek, receive and impart information concerning water issues.

Specific legal obligations

20. The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil. (…)

23. The obligation to protect requires States parties to prevent third parties from interfering in any way with the enjoyment of the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems.

24. Where water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, States parties must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this general comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance.

33. Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. (…)

44. (b) Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to water by third parties. This includes, inter alia: (i) failure to enact or enforce laws to prevent the contamination and inequitable extraction of water; (ii) failure to effectively regulate and control water services providers; (iii) failure to protect water distribution systems (e.g., piped networks and wells) from interference, damage and destruction;

49. The national water strategy and plan of action should also be based on the principles of accountability, transparency and independence of the judiciary, since good governance is essential to the effective implementation of all human rights, including the realization of the right to water. In order to create a favourable climate for the realization of the right, States parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to water in pursuing their activities.

53. To assist the monitoring process, right to water indicators should be identified in the national water strategies or plans of action. The indicators should be designed to monitor, at the national and international levels, the State party’s obligations under articles 11, paragraph 1, and 12. Indicators should address the different components of adequate water (such as sufficiency, safety and acceptability, affordability and physical accessibility), be disaggregated by the prohibited grounds of discrimination, and cover all persons residing in the State party’s territorial jurisdiction or under their control.

UN Independent Expert on Water and Sanitation^[6]

4. It is possible to identify three different forms of service provision:

(a) Direct management. The State can provide services itself, often through its municipalities. In that case, no actor other than the State is involved and the State is directly responsible and accountable for the provision of services;

(b) Delegated service provision. Instead of providing services itself, the State may choose to formally delegate service provision to non-State actors. While more attention is often paid to the involvement of large, transnational companies, service provision may also be delegated to smaller companies, non-governmental organizations (NGOs) or community-based organizations. Services are also often operated through State-owned companies, that is, companies that are totally or in the majority owned by the State, but that are legally distinct entities from the State itself. From the perspective of human rights, the crucial aspect is that the State has delegated the task of providing water and sanitation services to a third actor;

(c) Informal provision. Finally, in many cases, the State neither provides services itself, nor does it formally delegate service provision. Under these circumstances, informal provision often takes place, involving a variety of actors and structures that have evolved over time, responding to a need in areas not covered by formal provision, ranging from small-scale entrepreneurs to NGOs and community-based organizations. In this case, the State has not made an intentional decision to involve third actors. Rather, informal provision is de facto participation of non-State actors.

Delegated service provision

7. Some highly visible instances of private sector participation have triggered a vigorous debate, criticism and high scrutiny over the formal private sector, focusing more on water than sanitation. On the one side, some argue that water is a public good and a unique resource essential for life and health and thus should remain in the public domain. Critics often point to instances where private sector participation is perceived to have failed, arguing that performance has been poor, agreed coverage targets have not been met, the quality of services has decreased, prices have increased substantially and that processes have not been transparent. Conversely, others argue that the private sector can contribute to the necessary investments in the sector, and thus extend coverage to currently unserved or underserved areas, as well as increase service quality and efficiency, contribute with technologies and skills and provide services at lower prices.

8. The intensity of the debate between advocates and critics, which is sometimes ideological and emotional, may have partially obscured the actual extent of private sector participation. While such participation is very common in some countries, on a global scale, other forms of service provision predominate. It has been estimated that, as of 2003, only 5 per cent of world’s population was being served by the formal private sector. Moreover, the debate sometimes conveys the impression that the private sector is largely dominated by transnational corporations. This does not reflect present reality. Some transnational corporations have started to withdraw from developing countries, they are increasingly developing local partnerships, and, in a number of countries, local private actors are also very active.

The human rights to water and sanitation

14. In the political debate over the best mode of service delivery, human rights are often invoked in arguments against private sector participation. The right to water (less so the right to sanitation) and opposition to private sector participation are frequently linked to each other. Decisions taken at the national level to recognize the right to water, while simultaneously ruling out private sector participation of water services, contributed to this perception.

15. Yet, the two issues are separate. Human rights are neutral as to economic models in general, and models of service provision more specifically. The report of the High Commissioner points out that “the approach of United Nations treaty bodies and special procedures has been to stress that the human rights framework does not dictate a particular form of service delivery and leaves it to States to determine the best ways to implement their human rights obligations” (…)

16. Certainly, however, this does not imply that human rights are irrelevant. The delegation of water and sanitation service delivery does not exempt the State from its human rights obligations. (…)

18. The State cannot exempt itself from its human rights obligations by involving non- State actors in service provision. Irrespective of responsibilities of the latter, the State remains the primary duty-bearer for the realization of human rights. (…)

29. From a human rights perspective, it is imperative to determine whether service delivery contributes to or undermines the realization of human rights. Therefore, the provision of services must be assessed against the standard of the human rights to sanitation and water. While all aspects of these rights, that is, availability, safety, acceptability, accessibility, affordability, participation, non-discrimination and accountability, have to be met, some will become more relevant than others in the following discussion.

30. (…) Against the standard of the human rights to water and sanitation, a number of such challenges can be identified, including:

• Guaranteeing transparent and democratic decision-making
• Addressing power asymmetries in the bidding and negotiation process
• Reaching the poorest and most marginalized
• Ensuring affordable services
• Avoiding disconnections in cases of inability to pay
• Ensuring the quality of services
• Ensuring regulatory capacity and enforcement
• Ensuring monitoring and follow-up capacity
• Establishing effective complaint mechanisms
• Addressing corruption

37. The negotiation of contracts is extremely complex, including the need to clearly define responsibilities, allocate risks, set delivery and coverage targets and establish penalties for non-compliance. Negotiation skills are therefore essential. In particular, local governments are usually far less experienced than transnational corporations in negotiating contracts and addressing the issues at stake. Any imbalance aggravates the task of ensuring that the contract includes the necessary human rights safeguards. Therefore, strengthening the negotiation capacity of (local) governments and reducing power asymmetries is essential.

Providing services to previously unserved and underserved areas

40. It is therefore the Government that has the power and obligation to resist the temptation of investing in and prioritizing only neighbourhoods where interventions are less expensive and complex. The State has the ultimate obligation to realize the rights to sanitation and water for all, including the poorest in society. It must not discriminate against people living in certain areas, but rather must pay specific attention to the most marginalized. (…)

41. The lack of security of tenure, in particular in informal settlements, is one of the critical underlying issues in this context. Utility networks often do not extend to informal settlements, while currently more than one billion people live in unauthorized urban and peri-urban areas. Service providers often do not extend services to these areas due to the lack of legal tenure. At the same time, people themselves do not have a strong incentive for investing in ensuring access to water and sanitation in their homes when they face the constant threat of forced eviction. Appropriate measures by the State to facilitate provision will depend on the local context and might include steps to formalize the legal status of settlements, guarantees that people will not be forcibly evicted, the provision of financial assurances, and, in some circumstances, resettlement to an alternative area as long as human rights standards are respected. Where the issue of the lack of security of tenure has not yet been resolved, States should at least take measures to ensure that the informal service provision that often prevails in such areas meets minimum human rights standards, as further outlined below, or that innovative solutions to providing formal services are implemented.

Complying with human rights standards in the operation of services

49. While it is the obligation of the State to put into place the necessary regulations, providers also have responsibilities in the operation of services. As outlined above, they must exercise due diligence to become aware of, prevent and address adverse impacts on human rights. To meet this responsibility, service providers should take certain measures, such as ensuring that the water they provide is of safe quality, ensuring the regularity of supply, not discriminating in their operations, adopting fair procedures in cases of disconnections due to non-payment and refraining from disconnections when people are unable to pay and the disconnection would leave them without access to minimum essential levels of water.

50. However, the overall policy framework governing these issues is within the purview of the State. Often, these decisions apply to a broader context than the area of operation of the provider in question. And most importantly, service providers lack the legitimacy to take such decisions. Yet, service providers should consider the human rights implications of different policy decisions, in particular, they should be aware of adverse implications of their activities. They can be expected to engage with the State authorities to ensure they are not indirectly contributing to human rights abuses. For instance, while non-State service providers do not determine tariff structures unilaterally, they can be involved and make suggestions on how to ensure that services are affordable, also to the poorest. Moreover, they can and should offer flexible payment schemes adapted to the needs of people living in poverty, such as phased connection charges, payment in instalments and grace periods.

Particular challenges of informal small-scale providers

53. Compared to the regulation of utilities, far less attention has been paid to the regulation of informal small-scale providers. Operating unregulated, they often provide poor quality services at exorbitant prices. Yet, many people would be far worse off without their services. Any attempt to regulate the activities of such providers first requires an overview of the sector and the political will to acknowledge their activities. Human rights law does not prescribe the choice of policy and approach to small-scale providers, which is rather left to the State. It can decide to aim for regulation, or to use incentives for the provision of quality services at affordable prices, or to phase out small-scale providers in the long term and replace them by formal provision. The best policy option will depend on the circumstances and cannot be determined in the abstract. (…)

Human rights impact assessment

63. (…) States should carry out human rights impact assessments before and throughout the process, building these into the process of deciding on the means of service provision as well as a monitoring provision to determine the actual and potential impact on the realization of human rights, including the rights to water and sanitation. They are encouraged to adopt legislation that imposes obligations on service providers to also carry out human rights impact assessments. Service providers should undertake such assessments as part of exercising due diligence to become aware of the actual and potential impact of their activities on the realization of the human rights to water and sanitation;

Farrugia, Investment Arbitration: SAUR International v Argentine Republic^[7]

The dispute in question arose out of an investment by SAUR International (SAURI) in a provincially owned water company Obras Sanitarias de Mendoza (OSM). OSM was the holder of an administrative concession for the supply of drinking water, sanitation, and sewerage services in Mendoza, Argentina. SAURI had invested in OSM via minority holdings in a US–French–Argentine consortium led by Enron, and also through a 100 per cent owned local operating company, Aguas de Mendoza. As a result of these equity investments, OSM entered into a 95-year contract in June 1998 with the Mendoza province to manage the water and sanitation concession. Over the course of the following years, exacerbated by the effects of the 2002 financial crisis, the government issued a national emergency decree to freeze all water prices charged to consumers. SAURI maintained OSM was contractually entitled to increases in pricing on the grounds that the peso’s sustained devaluation made revenues insufficient to cover the ballooning costs—in other words, tariffs needed to be increased to maintain the ‘economic equilibrium’ of the project.

In addition to, or perhaps because of, OSM’s inability to pay for the services required under the concession, the project suffered from problematic operational issues. An audit of OSM’s water services found breaches of drinking water quality, breaches in the provision of sewerage services (both in terms of quality and quantity) and breaches of basic levels of consumer service (including connection, pressure and access). (…)

In its assessment of these questions, the Tribunal agreed with Argentina, first that human rights in general was a source of law applicable to the arbitration (through the mechanisms described at Section 2) and secondly that the right to water constitutes a human right within the meaning of the human rights law applicable to the proceedings.

Discussing the applicable law, the Tribunal stated that the provision of, and access to, safe drinking water constituted, from the state’s perspective, an essential service, and from a citizen’s perspective, a fundamental right. For that reason, the Tribunal was inclined to agree that the law can (and should) allow for a government to exercise its legitimate functions relevant to investment activity, including the planning, supervision, imposition of penalties and, where appropriate, termination.

However, appended to this right was a recognition, of sorts, that these kinds of governmental ‘powers’ place the nation state and foreign investor in an asymmetrical power relationship: an investor may often find itself dependent on the state to be able to carry out its own responsibilities. According to the Tribunal, therefore, state powers are not ‘absolute’ and must be balanced against the rights and guarantees granted to foreign investors under the BIT. (…)

As for the liability, the Tribunal ultimately determined that there can be no doubt that a sovereign state, in the public interest and acting in defence of what it believes to be the public good may, at any time, decide to nationalize a public service such as the supply of drinking water and sanitation. However, once an investment (which enjoys the benefit of the protection of a bilateral investment treaty) is deemed to be expropriated, the state cannot ignore its international obligations to provide full compensation. On balance, it found the Argentine Government had breached the BIT by adopting a series of measures of expropriation and nationalization (quantum to be decided at a later stage). (…)

Evident in SAURI and Pacific Rim, the latest in a long line of cases, tribunals seem comfortable in drawing upon and giving greater weight to broader human rights dimensions — specifically the right to water — raised by governments in defence of what may otherwise be considered a straight treaty breach. The important caveat to this trend, however, is that no tribunal has yet ruled on a direct conflict between human rights and BIT obligations: thus far, tribunals have been contented with affirming the coexistence of both human rights law and investment obligations without any serious discussion of hierarchical conflict.

International Council on Mining and Metals, A Practical Guide^[8]

Understand the true value of water

Water is a fundamental resource for both people and mining and metals operations

Water is fundamental to life, human dignity and functional ecosystems. Water is also the lifeblood of many industries, from agriculture to manufacturing, energy generation and mining. Yet, this critical shared resource is under increasing stress, highlighted by business leaders as one of the great sustainability challenges of the twenty-first century. Pragmatic solutions to this challenge will require a deep understanding of the way that a diverse range of stakeholders value water and a critical recognition that managing water is fundamentally different and more complex than managing carbon or other natural resources.

Why water is different

• Catchments are fragile ecosystems on which human settlements have historically depended for drinking water and sustenance, as well as social, cultural, economic and spiritual well-being. However, these social, cultural and ecological dimensions are juxtaposed with the economic value of water related to its use in various production processes. Without understanding the value of water from the perspective of diverse stakeholders, mining companies may pursue behaviours and take actions that could undermine trust and destroy relationships, while also increasing the cost of doing business.
• Water availability is variable in time and space, while the short- and long-term future availability is uncertain. One river catchment may be suffering extended drought while neighbouring catchments may be experiencing devastating floods. Equally, a catchment may experience droughts and floods in quick succession. Understanding operational and strategic risk around water is therefore different from other natural resources.
• Water is a finite but renewable resource, the availability of which is physically constrained by infrastructure and legally constrained by historical water rights systems. Although it may be more efficiently used, water cannot be substituted in most domestic and productive activities, and so even the most efficient operations can have an impact. The risks associated with scarcity are therefore very real at a catchment scale. Put simply, while there may be substitutes for carbon in energy production, only water can be used to drink or for irrigation.
• Water is, essentially, a regional product. It is bulky and costly to move in the volumes typically required for production, which limits the distance it can be transferred between catchments. Because of this, and because of the fundamental flow of water from upstream to downstream users, risks and responses must be understood at a catchment scale.

Water valuation

Poor social management of water (for example, lack of inclusive community engagement, participatory monitoring programs, etc) can lead to the erosion of stakeholder relationships and ultimately the loss of the company’s social licence to operate. Several mining companies have had operations shut down or put on hold due to community-led protests, many of which centred around water issues. This can result in costly delays, regulatory pressure, lack of access to permits and challenges to future mine expansions.

Taking a “catchment-based” approach to water management helps conceptualize and manage complex water resource challenges

A catchment-based approach to managing water resources looks at activities and issues in the catchment as a whole, rather than considering different aspects separately. It requires a diverse range of processes to be considered, including the hydrology and land use, as well as broader political, economic, social and ecological dynamics that influence water availability and quality. A catchment-based approach encourages organizations to consider holistically how competing demands on water resources from a range of stakeholders (domestic water users, industry, regulators, politicians) can create pressures and lead to conflict if not appropriately managed. It also requires that people from different sectors be brought together to identify issues and agree priorities for action, and ultimately build local partnerships to put these actions in place.

Opportunities, benefits and risks of partnerships

Successful partnerships create a space for mining and metals companies to build productive relationships with other companies, local communities, NGOs and regulators. These can help share the burden of mitigating risks, identifying opportunities, increasing stakeholder trust, building workforce satisfaction/retention and enhancing brand value. These opportunities are especially pertinent where water-related risks cannot be managed alone and the alternative to a productive partnership is increased operational challenges and costs. Clearly, successful partnerships deliver benefits to operations and help manage risk.

There are, however, risks and challenges in establishing partnerships. In some cases, private sector engagement may be construed as an attempt to unduly influence or “capture” a particular agenda and can be perceived as being purely self-interested. Engaging with partners has cost implications and requires resources via additional staff time to maintain frequent and adequate communication. The expectations arising from a partnership also require close and careful management. If the company’s interests, objectives, role and exit strategy are not clear, misaligned expectations from partners may have negative consequences for building and maintaining trust with key stakeholders.

Institutional arrangements

Mining and metals companies are keenly aware of the compliance requirements for their operations. However, close attention should also be paid to understanding the institutional dynamics and factors that can cause these rules to change in the future. This applies across the national, state/provincial and local scale where different institutions may be involved in regulating or setting the rules under which mines must operate. (…)

In addition to institutional arrangement and regulatory timeframes, the institutional strength and capacity of local authorities to deliver services and manage catchment challenges as they arise should also be assessed. Limited resources of local government institutions may have implications for the expectations communities have of mining operations and other industrial water users in the catchment along with implications for the reliability of water supply over time. (…) In instances where national, regional or local regulation is weaker than global company protocols, there may be an opportunity to engage with the regulator(s) on good practice and/or take a leadership position.

IFC, Performance Standard 3 – Resource Efficiency and Pollution Prevention^[9]

1. Performance Standard 3 recognizes that increased economic activity and urbanization often generate increased levels of pollution to air, water, and land, and consume finite resources in a manner that may threaten people and the environment at the local, regional, and global levels. (…)

Objectives

• To avoid or minimize adverse impacts on human health and the environment by avoiding or minimizing pollution from project activities.
• To promote more sustainable use of resources, including energy and water (…)

Water Consumption

9. When the project is a potentially significant consumer of water, in addition to applying the resource efficiency requirements of this Performance Standard, the client shall adopt measures that avoid or reduce water usage so that the project’s water consumption does not have significant adverse impacts on others. These measures include, but are not limited to, the use of additional technically feasible water conservation measures within the client’s operations, the use of alternative water supplies, water consumption offsets to reduce total demand for water resources to within the available supply, and evaluation of alternative project locations.

Sanitation and Water for All Partnership^[10]

Sanitation and Water for All – 2015-2020 Strategy^[11]

SWA is the global multistakeholder partnership for sanitation, water and hygiene, comprised of country governments, civil society organizations and development partners working together to catalyse political leadership and action, improve accountability and use scarce resources more effectively.

Role and Purpose

Achieving universal sanitation, hygiene and water for all will require complementary and joint efforts. SWA provides a platform for multi-stakeholder intergovernmental dialogue and engagement by a large number of stakeholders, allowing the partnership to achieve outomes that individual partners could not realize alone.

The role and purpose of the SWA partnership is to lead, galvanize and facilitate international efforts, aligning with and promoting national and regional processes aimed at ensuring availability and sustainable management of sanitation, water and hygiene for all. These efforts will be in line with the Sustainable Development Goals (SDGs) and other relevant development policies and law.

The partnership will be a platform for political dialogue, coordinated action, advocacy, and follow-up and review on progress made towards the sanitation, water and hygiene-related targets of the SDGs. The partnership is not a provider of finance, an implementing agency, or a technical oversight body.

The partnership is open to all countries and organizations who share SWA’s vision and seek to achieve its objectives.

Objectives

The SWA Strategy is grounded in the imperative to “put countries at the centre”, strengthening country processes, relying on evidence, and using advocacy to increase political will. Key to SWA’s Strategy is the harmonization of efforts and inputs by development partners. The objectives of SWA are to:

1. Increase political prioritization for sanitation, hygiene and water;
2. Strengthen government-led national processes;
3. Develop and use a strong evidence base to support good decision making;
4. Strengthen regional, national and local human and institutional capacities;
5. Follow-up and review progress achieved in implementing sanitation, water and hygiene targets of the SDGs.

In meeting the above objectives, SWA will contribute to the progressive elimination of inequalities by focusing on challenges affecting the most marginalized and hardest to reach.

Why do we need SWA?^[12]

Historically, the Water, Sanitation and Hygiene (WASH) sector has faced fundamental problems that present major obstacles to progress. 

1. WASH is low on the political agenda, and funding to the sector is insufficient.
2. National plans for WASH often need improving and lack coordinated support.
3. Finance to the WASH sector is unpredictable and does not reach the countries that need it the most.
4. At national level, the WASH sector lacks evidence, data and analysis to inform decision-making.
5. The WASH sector lacks monitoring mechanisms and mutual accountability.

Partners^[13]

SWA works through its partners, including governments, external support agencies, civil society organizations, the private sector and community-based organizations. Partners from five constituencies undertake the majority of activities.

Unilever, Water Use^[14]

Our commitment

Halve the water associated with the consumer use of our products by 2020.¹

Our performance

In 2016, our water impact per consumer use decreased by around 7% since 2010.

Our perspective

We have made significant reductions in the water used in manufacturing. However, the biggest impact comes from water used by consumers when they shower, bathe and clean with our products. In 2016 the water associated with the consumer use of our products reduced by around 7% versus 2010.

We have continued to make progress in designing and rolling out products which require less water. (…)

In 2016 we opened our Suvidha Hygiene Centre in India. Located in one of Mumbai’s largest slums, the Centre provides water, sanitation and hygiene pay per use services, including laundry facilities and safe drinking water, to over 1,500 people. The Centre uses circular economy principles to reduce water use. Fresh water is first used for bathing, handwashing and laundry. The waste water from these activities is then used for flushing toilets.

This business model is an opportunity to unlock new markets, investments and innovation, whilst meeting consumer needs and contributing to the delivery of the Global Goals, particularly Goal 6 on clean water and sanitation provision.

We also continued to scale up our Sunlight Water Centres in Nigeria, with ten centres opened by the end of 2016.

In 2016 our Dove brand and Delta Faucet Company in the US worked to help change consumer behaviour during showering, promoting the more water efficient Delta Hydrafall™ showerhead.

Over the last six years we have learned more about people’s needs in water scarce situations – so we are sharpening our internal strategy to align with this. We will accelerate our efforts to develop water smart products which meet consumers’ needs, such as products which enable people to wash and do laundry well, in spite of water quantity and quality issues.

Alliance for Water Stewardship, Introduction

What is the Alliance for Water Stewardship?^[15]

Alliance for Water Stewardship (AWS) is a global membership collaboration of businesses, NGOs and the public sector. Our members contribute to the sustainability of local water-resources through their adoption and promotion of a universal framework for the sustainable use of water – the International Water Stewardship Standard, or AWS Standard – that drives, recognizes and rewards good water stewardship performance.

What is water stewardship?

Stewardship is about taking care of something that we do not own. Stewardship approaches focus on the management of common pool resources like forests, fisheries or, in our case, freshwater. Water stewardship is based on the principle of there being a collective need for sustainable water resources and a collective need for effective responses to address shared water-related challenges.

The AWS International Water Stewardship Standard – Version 2.0 (2019)^[16]

AWS International Water Stewardship Standard (AWS Standard) is a globally-applicable framework for major water users to understand their water use and impacts, and to work collaboratively and transparently for sustainable water management within a catchment context. The Standard is intended to drive social, environmental and economic benefits at the scale of a catchment.

It achieves this by engaging water-using sites in understanding and addressing shared catchment water challenges as well as site water risks and opportunities. It asks water-using sites to address these challenges in a way that progressively moves them to best practice in terms of five outcomes:

In pursuit of these outcomes, implementation of the Standard encourages collaborative approaches that involve business and industry, government and community as well as civil society organizations.

WBCSD, CEO Guide to Water^[17]

Business depends on water. You share it with people, cities, other businesses and nature.

This competition will get worse. According to the World Bank, within the next three decades the global food system will require between 40 – 50% more water; municipal and industrial water demand will increase by 50 – 70% and water demand for energy will increase by 85%.1

The materiality of water risks is clear and urgent. Water demands already exceed supply in many places. Without action, there will be no water available to meet future societal and environmental needs.

Water is central to the delivery of a low-carbon world, stability, prosperity and peace. Carbon capture and storage are notably highly water intensive and biofuel crops pose significant demands on water supply. Water scarcity can induce a security risk in countries where hydroelectricity represents a significant portion of the energy mix.

The impacts of climate change are primarily channeled through changes in the water cycle, with uneven consequences across the globe. Major natural disasters such as droughts are increasing, which influence migration, impact food prices and can lead to social unrest.

Business is paying the price too. When there is no water available for operations, businesses must either significantly invest into or abandon certain sites.

Water risks directly affect bottom lines. To better plan for future shocks and become resilient, there needs to be a fundamental shift in the way that companies value water.

Water should be a priority in the boardroom of every company in the world. Managing water better is a key opportunity for business to create and develop competitive advantages, while securing their license to operate, reducing financial losses and altogether ensuring continuity of operations.

As a decision maker, you need to:

• Understand the level of your company’s exposure to and sharing of water risks in direct operations and across supply chains;
• Integrate water in decision making, disclosure, and make smart investment decisions;
• Collaborate with other water users and stakeholders to address shared risks and seize opportunities. (…)

Consider the following seven steps to design and implement your water stewardship journey in the order that best suits your business

Gerlak, Taking Stock of the Human Right to Water^[18]

In December 2015, the United Nations (UN) General Assembly adopted a new resolution recognizing the human right to sanitation as a distinct right from the human right to water. (…) Collectively, these developments reflect a convergence by different actors that everyone is entitled to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. However, this convergence occurs in an environment of governance that is increasingly multi-level, fragmented and contested. Actor constellations in water governance range from purely public to hybrid and exclusively private.

Given this broad convergence on the HRtWS1 and in light of the increased fragmentation and contestation in global water governance, this article asks: How have the diverse actors in global water governance framed the HRtWS and proposed related actions to achieve the right? How has the narrative around the HRtWS changed over time? (…)

We find that despite initial resistance to human rights framing among many of the actors involved in global water governance, there is a convergence on the existence of the HRtWS. Yet, contestation among actors increasingly focuses on what the right means in practice and how to implement a rights-based approach to water services. This contestation is particularly visible around what a legal HRtWS means for questions of financing, providers and oversight. We argue that the HRtWS brings a political dimension to a relatively technical driven discourse by calling attention to issues of discrimination, power differentials, justice, equity and democratic principles of citizen participation in water management.

Background (Cambodia)

World Bank, Water Supply and Sanitation Improvement Project^[19]

A. Country Context

3. Climate change vulnerability could also negatively affect growth. Cambodia ranked as the 8^th most disaster-prone country by the United Nation’s World Risk Index (2015). (…) Vulnerability to floods and droughts on a seasonal basis is considered by the government to be a key driver of poverty. Climate change coupled with rapid urbanization are also expected to negatively affect the quality and availability of water resources. (…)

B. Sectoral and Institutional Context

5. The Sustainable Development Goals (SDGs) on clean water and sanitation present a huge challenge to Cambodia in accelerating access, reducing disparity, and increasing quality of service. (…)

6. The lack of access to WSS services poses a disproportionate burden on women and girls. A current gender gap analysis suggested that while women, as part of performing household chores and hygiene practices, are the potential principle users of water when piped water supply is available at home, a formal mechanism for women to provide feedback to service providers does not exist yet. More importantly, women are underrepresented among the owners (in the case of private water suppliers) and staff of water supply service providers. Among the public water service providers consulted, professional female staff (unskilled labor not included) make up only 13 percent on average of total staff. According to the gender analysis, this is because of gender stereotyping and lack of enabling environment for women to work in water supply services. (…)

7. Only 21 percent of people have piped water supply which is concentrated in larger towns. Phnom Penh is well covered with piped water supply, while Siem Reap City and a handful of provincial and district towns have limited coverage ratios of 13–55 percent. These water supply systems are operated by autonomous water authorities in Phnom Penh and Siem Reap City and public waterworks departments in the rest of the country. The lack of public funding has spurred a significant growth of domestic private sector financed, constructed, and operated small-scale piped water supply in many smaller settlements. As of 2018, there are more than 300 such schemes, of which 247 are licensed by the Government. There are gap areas that appear suitable for piped water supply services (either as expansion from adjacent schemes or as new schemes) but currently have no public funding nor private interests to provide these services. (…)

8. Only 41 percent of people receive some form of sanitation service and 11 percent of households are connected to a sewerage network. Even where wastewater is collected, only a small portion is treated. Currently, only Siem Reap City, Preah Sihanouk Ville and Battambang provincial town have wastewater treatment facilities. Because of the lack of financial resources (including low revenue collection) and capacity constraints, the facilities and networks have inadequate operation and maintenance (O&M) and have fallen into disrepair in some areas. (…)

11. A National Policy on WSS was enacted in 2003 but has not been successfully implemented in full, partly because of institutional fragmentation challenges. Instead, key water supply elements from this policy and other policy, strategy, and regulation developed since then are included into the Cambodia National Strategic Development Plan (NSDP) 2014–18. These elements form the basis for the Government’s reform agenda for water supply, which focuses on (a) improving legal and regulatory framework that is conducive for private investment in the water sector; (b) decentralizing service delivery to subnational level; (c) progressively corporatizing all public waterworks into state-owned enterprises through improving operational performance and transferring autonomy; (d) increasing sector financing, including encouraging private sector financing and investment; and (e) promoting equitable access. This agenda is reinforced by a tariff regulation policy which sets out the requirement for cost recovery in piped

water supply operations. (…)

12. The Bank’s support to the urban water supply sector mainly focuses on strengthening the enabling environment and participation of the private sector in water service provision. Given the prominent role of the private sector in water supply in Cambodia, the Bank has been providing technical assistance (TA) to support the development of the private sector water industry in Cambodia. The TA supported strengthening the Government’s role in performing effective regulatory functions through supporting the preparation of the licensing regulation stipulating the obligations for water operators, the tariff regulation specifying cost-recovery of investment, and the monitoring system enabling the MIH to monitor the performance of water operators. In addition, TA has also provided capacity building for professionalizing private water operator. (…)

13. Development partners’ support to the sector is numerous but with little coordination. There are recent efforts to revive or convene regular stakeholders’ meetings. In water supply, the Asian Development Bank (ADB), Japan International Cooperation Agency (JICA), Japan-ASEAN Integration Fund, European Union (EU), and French Development Agency (AFD) have focused on financing the expansion of the water production capacity and service provision in Phnom Penh, Siem Reap City, and a number of provincial and district towns operated by public service providers. The AFD, the Australian Department of Foreign Affairs and Trade (DFAT), and the Bank are supporting the provision of piped water supply services through the private sector. The AFD focused on providing access to finance for private water operators to expand their network within their licensed areas, while the DFAT’s program provided a viability gap grant to private operators focusing on new and unlicensed operators. (…)

Instruments (Cambodia)

Agreement for the Sustainable Development of the Mekong River Basin^[20]

Article 1. Areas of Cooperation

To cooperate in all fields of sustainable development, utilisation, management and conservation of the water and related resources of the Mekong River Basin including, but not limited to irrigation, hydro-power, navigation, flood control, fisheries, timber floating, recreation and tourism, in a manner to optimise the multiple-use and mutual benefits of all riparians and to minimise the harmful effects that might result from natural occurrences and man-made activities.

Article 7. Prevention and Cessation of Harmful Effects

To make every effort to avoid, minimise and mitigate harmful effects that might occur to the environment, especially the water quantity and quality, the aquatic (eco-system) conditions, and ecological balance of the river system, from the development and use of the Mekong River Basin water resources or discharge of wastes and return flows…

Article 8. State Responsibility for Damages

Where harmful effects cause substantial damage to one or more riparians from the use of and/or discharge to waters of the Mekong River by any riparian State, the party(ies) concerned shall determine all relative factors, the cause, extent of damage and responsibility for damages caused by that State in conformity with the principles of international law relating to state responsibility, and to address and resolve all issues, differences and disputes in an amicable and timely manner by peaceful means. (…)

Constitution of the Kingdom of Cambodia

Article 59: The State shall protect the environment and balance of abundant natural resources and establish a precise plan of management of land, water, air, wind, geology, ecological system, mines, energy, petrol and gas, rocks and sand, gems, forests and forestry products, wildlife, fish and aquatic resources.

Article 61: The State shall promote economic development in all sectors and remote areas, especially in agriculture, handicrafts, industry, with attention to policies of water, electricity, roads and means of transport, modern technology and a system of credit.

 Law on Water Resources Management of the Kingdom of Cambodia^[21]

Article 1: The general purpose of this Law is to foster the effective and sustainable management of the water resources of the Kingdom of Cambodia to attain socio-economic development and the welfare of the people.

This Law determines:

• the rights and obligations of water users,
• the fundamental principles of water resources management, and
• the participation of users and their associations in the sustainable development of water resources. (…)

Article 11: Every person has the right to use water resources for his/her vital human need including drinking, washing, bathing and other domestic purposes including watering for animal husbandry, fishing and the irrigation of domestic gardens and orchards, in a manner that will not affect other legal right of others. (…)

Article 12: The diversion, abstraction and use of water resources for purposes other than those mentioned in Article 11, and the construction of the waterworks relating thereto, are subject to a license or permit. (…)

Article 34: The Kingdom of Cambodia has the right and duty to participate in the utilization, development and management of an equitable and reasonable share of the international river basins in its territory, consistent with the obligations arising from the international agreements to which Cambodia is a Party.

Sub-Decree on Water Pollution Control^[22]

Article 5: In the necessary cases or in response to the requirement of each area for the purpose of human health protection and the conservation of bio-diversity, the Ministry of Environment shall set up separated standard for effluent discharge for sources of pollution, that are located around the public water area. (…)

Article 7: In order to ensure the human health protection and bio-diversity conservation, the Ministry of Environment shall establish the standard of pollution load contained in liquid waste that could be allowed to be released from any sources of pollution into designated protected public water areas. (…)

Article 29: Even if it is found that any public water areas is suffering of pollution which could threaten human life or bio-diversity the Ministry of Environment shall immediately notify the public about this danger and shall take measure to prevent the water pollution and to restore the water quality of such public water areas.

Cambodian Sustainable Development Goals Framework^[23]

In September 2015, the Royal Government came together with all UN member states at the annual session of the General assembly to endorse the expanded and more ambitious agenda set out by the Sustainable Development Goals (SDGs) 2016-2030. The Royal Government has sought again to adapt these global goals to the national context and craft a fully localised set of targets – the Cambodia SDGs, or CSDGs – which will feed into national and sectoral development planning processes, and this document sets out the CSDG framework as a primary input to the National Strategic Development Plan 2019-2023. (…)

National Strategy for Rural Water Supply, Sanitation and Hygiene^[24]

Sustainability

A key objective is the sustainability of improved water supply, use of sanitation facilities and

hygiene behaviors. Once established, systems should provide a permanent service. The benefits

should continue over a prolonged period. Essential factors are:

• The water resources should not be over-exploited;
• Polluting the water resource should be prevented, in particular from poor sanitation;
• Provision for effective O&M, so that WSS facilities are maintained in a condition that ensures a reliable service; (…)

Community-based management

Communities should manage water supply and sanitation services, and have decision-making power over the components for which they are responsible. This includes decisions about whether to operate the services themselves or to contract out to a service provider. Key aspects in community-based management are:

• Participation: all members of the community should have an equal opportunity to participate in the development and management process, and there must be broad community support for community-based management.
• Responsibility: the community owns and is responsible for maintaining the systems.
• Authority: the community has the legitimate right to make decisions on behalf of the users.
• Control: the community is able to carry out and determine the outcome of its decisions.
• Accountability: the community must accept the consequences of its decisions and understand that it is accountable for its actions.

Demand-responsive approach

The demand-responsive approach is a foundation for community management. The community initiates developing services by requesting support from relevant authorities or service providers. (…)

Cost sharing for water supply

Communities should contribute a part of the capital cost of water supplies, but should bear the total cost for operation and maintenance, and a part of the cost of the maintenance support service. (…)

Sanitation financing

For sanitation, public finance should mainly be used to stimulate demand and develop the enabling environment (including affordable products) so that households pay for their own toilets. Those who can pay should pay. While targeted hardware subsidies may be provided to poor households to buy toilets, and to reach the vision of 100% coverage, direct hardware subsidies should be used with caution and only as a last option, and alternative mechanisms should be prioritized.

Integration of water supply, sanitation and hygiene promotion

Where communities and households do not have access to improved water supply and improved sanitation, water supply, sanitation and hygiene promotion services should be integrated into a single component. But as there are substantial differences between them, different approaches are needed to provide such services. In places that already have water supply, it may only be necessary to develop sanitation and hygiene promotion as stand-alone components.

Operation and maintenance

User communities are responsible for operating and maintaining the water supply service, through a representative Water & Sanitation User Group (WSUG), supported by a district-level O&M support service. Operating and maintaining household latrines is the responsibility of the individual household, while institutions are responsible for theirs.

Accountability

Organizations have multiple accountabilities – downwards to electorates, beneficiaries, partners and staff, and upwards to higher levels of government and donors. When developing, running and monitoring services and designing projects, programs or other activities, all organizations should consider how their work and its results will affect each of these, and their responsibilities for them, in both the short and long-term.

Mainstreaming gender

All organizations should mainstream gender. They should make women’s and men’s concerns integral to the design, implementation, monitoring and evaluation of policies and service delivery in all political, economic and social aspects.

Mainstreaming disability

Developing and providing RWSSH services shall conform to the Law on the Protection and Promotion of the Rights of Persons with Disabilities (2009). The needs of people with disabilities should be considered at all stages of the development process, including legislation, policies and programs, in any area, at all levels. (…)

Roles and responsibilities

Responsibilities for water and sanitation are allocated to various line ministries:

• The MRD is specifically responsible for rural water supply and sanitation
• The Ministry of Water Resources and Meteorology (MOWRAM) has overall responsibility for water resource planning and management
• The Ministry of Industry, Mines and Energy (MIME) is responsible for water supply to provincial and small towns, regulation of the private sector involved in piped water systems, setting quality standards for drinking water and water quality in piped supplies
• MIME is responsible for the water quality of piped public water supply sources
• The Ministry of Planning is responsible for monitoring the CMDGs.

Figure 6: Links between poverty and water supply and sanitation

World Bank, Water Supply and Sanitation in Cambodia^[25]

Reaching universal access targets set for 2025 will involve an estimated 562,000 persons per year gaining access to improved water supply services and 933,000 gaining access to improved sanitation, of which 62% live in rural areas. Almost 660,000 people living in rural areas will need to gain access annually to improved sanitation, making this the most pressing development issue in terms of closing the urban-rural gap, and especially in light in the high and persistent levels of stunting (40%) of children, translating in low cognitive development and less productive future lives. These basic service delivery gaps in water and sanitation translate to capital expenditure requirements of US$92 million per year for water supply and US$119 million for sanitation. The estimated capital requirements are biased towards urban areas, requiring 70% of the total, on account on higher unit cost and ambitious targets for high levels of services, especially for urban wastewater. Anticipated financing falls far short of this requirement with projected deficits of US$57 million per year for water supply and US$85 million for sanitation; these include replacement costs as well. On top of this, approximately US$10 million per year is required for the operation and maintenance of water supply services and US$14 million for sanitation.

            With the ambitious government targets in mind, it is clear that investments in the water supply and sanitation sector fall short of requirement, and – with an eye on delivering services to the poor, the rural sectors seems to be hardest hit. However, with rapid urbanization, urban water supply services especially outside of Phnom Penh need urgent attention, as well as sanitation solutions in the capital to improve hygienic living conditions and reduce environmental degradation. However, the scale of the investment gap could, however, be reduced by improving the efficiency, management and sustainability of existing infrastructure and services. Especially for water supply, ensuring higher cost recovery through user tariffs and fees will help to reduce the burden placed on government to fund replacement costs. Another critical challenge is the lack of a well-defined and operationalized institutional and regulatory framework to drive quality, equity and efficiency in service provision.

            Especially relevant here is the importance to clarify functional assignment of rural sanitation and maintenance of rural water supplies to sub-national administrations. In line with the principles of the D&D reform, a decentralized service delivery model for rural services will need the adequate level of resourcing, strong district and commune council leadership, and oversight and guidance by technical line agencies. Similarly, the reform in the urban water supply sector would need to follow the example of Phnom Penh by creating autonomous utilities, as well as cities taking responsibilities for urban sanitation issues, possibly through combined water and sanitation service providers.

            Other constraints for sound sector development – following the motto “what gets measured gets managed” – is the lack of effective monitoring systems to track progress against targets and improve programming for both the urban and rural subsectors, as well as the limitations of existing financial management to support budgeting and expenditure reporting, linking these to result areas. (…)

EarthRights et al., Submission to UN [re Lower Sesan Hydropower]^[26]

2. National Legal Framework

2.1 Responsible bodies

The Ministry of Mines and Energy (MME) is the lead agency responsible for hydropower development in Cambodia. The National Strategic Development Plan (NSDP) (2009-2013) requires MME to encourage private sector investment and promote the exploration of new sources of energy, including hydropower, to meet the country’s pressing domestic demand. The Ministry of Environment (MOE) has the role of reviewing and approving environmental impact assessments (EIAs) for hydropower projects and monitoring project compliance with the EIA report. The Ministry of Water Resources and Meteorology (MOWRAM) is responsible for issuing water use licenses for hydropower projects. (…)

2.2 National legal principles

There is no specific legal framework governing hydropower development in Cambodia. A number of laws provide principles applicable to the development of hydropower dams, including those related to investment, electricity, land, forests, water resources and the environment. Existing laws contain principles regarding the rights of affected communities and the public in the decision-making and development of such projects. (…)

            The Law on Environmental Protection and Natural Resource Management (EPNRML) sets out the framework for environmental protection in Cambodia. One stated objective is to enable ‘the public to participate in environmental protection and natural resource management’. A further objective is to suppress ‘any acts that cause harm to the environment’. (…)

            With respect to the LS2 a dam, the Cambodian government passed a law guaranteeing payments to the Hydropower Lower Sesan 2 Co. for the electricity from the project, including if the dam is unable to operate due to political force majeure. The Law on the Authorization of Payment Warranty is based on inadequate due diligence conducted by Key Consultants Cambodia (KCC) of Cambodia and Power Engineering Consulting Joint Stock Company 1 (PECC1) of Vietnam during the feasibility and environmental impact assessment studies. Furthermore, the law lowers the standards for social and environmental protection set out in the EIA report by placing limits on company responsibility for project impacts. (…)

            International human rights bodies have held that States must prevent private companies in their jurisdiction from violating the human rights of individuals in other countries. The Chinese government has an obligation to prevent businesses domiciled in China from violating human rights in their operations abroad, through adequate legislation, policies, and adjudication. This obligation is stronger when, as with the LS2 and Cheay Areng projects, the companies are state owned enterprises (SOEs) under effective government control. In the case of SOEs, states should ensure that human rights due diligence is undertaken prior to investing in a project. The obligation to protect also includes ensuring effective remedial mechanisms for persons whose human rights have been violated as a result of activities of Chinese companies operating abroad.

            The right to water is protected under articles 11 and 12 of the ICESCR. The right obliges governments to take steps to ensure the protection of water sources, including by reducing the depletion of water resources through unsustainable damming and ensuring that proposed developments do not interfere with access to adequate water. States violate ICESCR article 12 by taking retroactive measures that are incompatible with ensuring access to an adequate supply of safe and potable water. Water must be treated as a social and cultural good, not primarily an economic good, and indigenous peoples’ access to water on their ancestral lands must be protected from encroachment. (…)

Lower Sesan 2 Dam

According to studies, at least 38,675 individuals, including many indigenous persons, stand to

lose access to the vast majority of their fishery resources as a result of the LS2 dam, and at least 78,000 people upstream of the dam will lose access to migratory fish. Furthermore, the dam “would certainly result in significant negative fisheries impacts on… Vietnam, Laos and Thailand.” A recent scientific study predicts that the LS2 dam will reduce fish biomass across the entire Mekong Basin by 9.3% and critically endanger more than 50 fish species, which equates to 200,000 tons of fish per year; the most severe impact of any proposed Mekong tributary dam. The dam will also contribute to significant changes in hydrological flows in the Mekong River and decrease sediment by approximately 6-8 percent, affecting agricultural production in the Mekong floodplains and Delta. (…)

            The loss of fisheries will have negative economic effects on the region, especially in Cambodia. KCC calculated the dam to cause a US $2.84 million loss in fishing revenue per year. This estimate has been criticized as being far too low. In 2008, the total value of Cambodian fishery exports was US $35.8 million, and fishery sales account for nearly 12% of Cambodian GDP, with the industry creating over 420,000 primary sector jobs and over 2 million secondary sector jobs. The dam will damage the economic livelihoods of thousands of Cambodian fishers and the contribution of the industry to the national economy.

            The dam will also harm the health and livelihoods of hundreds of thousands of farmers. The dam is expected to destroy 1,290 hectares of agricultural land, around one quarter of the wet rice paddy land in Sesan District, which is of especially good quality for rice farming. Nutrient rich sediment flows are crucial for fertilizing the small rice farms of hundreds of thousands of subsistence-level riverine villagers, and the loss of sediment “would reduce the stability of river channels and the Mekong Delta coastline, increasing erosion and diminishing productivity of the aquatic system and agriculture in the Mekong floodplains and Tonle Sap Lake.”

LICADHO et al, SHRIA of Tompoun/Cheung Ek Wetlands^[27]

Cambodia has the responsibility to protect the rights of its people to health. In ratifying the ICESCR, Cambodia has agreed to improving environmental hygiene and preventing diseases. The right to health contains underlying determinants such as: safe drinking water and adequate sanitation; safe food; adequate nutrition and housing; healthy working and environmental conditions; health-related education and information; and gender equality….

            Nearly 70% of Phnom Penh’s rainwater and wastewater enters the Tompoun/Cheung Ek wetlands before it reaches the Bassac River at Ta Khmao… the loss of the wetlands would result in 25 to 30 million cubic metres of water annually needing to be managed elsewhere, potentially leading to backlog which would increase flooding in low-lying parts of the city, or downstream flooding, across exit river areas in Ta Khmao city, or both.

            Flooding in Phnom Penh could be disastrous and have dangerous effects on residents as the water would largely be comprised of untreated sewage and harmful chemicals. Disease, contamination of drinking water, inundation of houses and destruction of infrastructure are all possible effects if the wetlands area is not adequately preserved or other systems are not put in place to mitigate against such risks. Communities in the wetlands area are particularly vulnerable to flooding and have encountered floods regularly that have impeded children attending school and increased the risk of disease.

            Flooding has been linked to gendered impacts as well, with many women reporting that the effects of flooding are often felt heavily in the domestic sphere, which women are more likely to be responsible for culturally. Navigating contaminated flood waters to ensure children attend school, or to buy food for shopping were reported as difficulties more likely to affect women.

Mosello & O’Leary, How to Reduce Inequalities in Access to WASH^[28]

The data shows substantial progress in guaranteeing access to improved sanitation to Cambodians, including the poorest ones. These have been linked to the general improvement of living conditions in cities, and in particular in the capital Phnom Penh. Progress has been driven by the investments of wealthier urban households in on-site sanitation. Economic transformation and growth have further attracted the attention of the government and donors to service delivery cities, and primarily Phnom Penh and Siem Reap (for tourism), but also cities along the economic growth corridor (Bavet, Poipet, Kampot, Battambang and Pursat). This has resulted in project-based investments in large-scale infrastructure for wastewater management, as well as sewerage and drainage systems. (…)

4.2. Entry points for change

(…) ‘Framing sanitation’ right could, therefore, be an essential element to consider for donors and NGOs to push urban sanitation on top of the priority list of key sectoral actors. For example, as both citizens and government at local and national level in Cambodia seem to prioritise drainage (due to flooding issue) and waste management, these could be entry points to introduce (or re-introduce) a discourse on urban sanitation. This should be understood not only in terms of centralized infrastructure for wastewater treatment, but also decentralised on-site management. It would also be important to demonstrate the impacts of lack of sanitation in terms of human health – to create the demand for improved services.

            Civil society organisations and NGOs would be well positioned to seek policy coalitions to take advantage of this framing and raise the awareness and interest of the government in sanitation generally and for poor users in particular. For example, they could seek alliances with organisations that are active in the sectors of flood protection and drainage – eventually in connection to climate change adaptation/disaster risk reduction – and demonstrate the costs to cities for tourism and lost business revenue if these issues are not tackled in an integrated manner. For organisations with a presence in both the water and sanitation fields, one entry point could be through the institutional framework for the urban water sector, which is more established than for urban sanitation one, and already has a pro-poor focus. (…)

Questions

1. How do you explain the linkage between right to water and poverty reduction?
2. How do several industrial sectors impact water resources and what are the differences in the way they affect access to water for the population?
3. What are principles of best business practice to safeguard the right to water and address in a responsible way water scarcity?
4. Are you aware of multistakeholder partnerships protecting the right to water in Cambodia? Are they working well and what are some of the lessons learned?

Further Readings

• Tamar Meshel, ‘Human Rights in Investor-State Arbitration: The Human Right to Water and Beyond’, Journal of International Dispute Settlement (2015) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2554086.
• Urbaser v Argentina, International Centre for Settlement of Investment Disputes, ICSID Case No. ARB/07/26 (2016) www.italaw.com/sites/default/files/case-documents/italaw8136_1.pdf.
• Caroline Richard & Elliot Luke, Human Rights in International Investment Law: Where to After Urbaser? (2017) https://sustainability.freshfields.com/post/102enaj/human-rights-in-international-investment-law-where-to-after-urbaser.
• UN Water, A Compilation of Aspects on the Means of Implementation: Water and Sanitation (2015) https://sustainabledevelopment.un.org/content/documents/1746UN-Water%20draft%20MOI%20compilation_4%2024%202015.pdf.
• Catarina de Albuquerque, On the Right Track: Good Practices in Realising the Rights to Water and Sanitation, UN Special Rapporteur on the human right to safe drinking water and sanitation (2012) www.ohchr.org/Documents/Issues/Water/BookonGoodPractices_en.pdf.
• Human Rights and Business Dilemmas Forum, Access to Water https://hrbdf.org/dilemmas/access-to-water/#.Wtck9C5ubDA.
• Alliance for Water Stewardship, Sharing Good Practice In Alliance For Water Stewardship (AWS) Standard Implementation (2020) https://a4ws.org/download/aws-good-practices-report/
• UN General Assembly, Right to a Healthy Environment: Good Practices Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/43/53 (2019) https://wedocs.unep.org/bitstream/handle/20.500.11822/32450/RHE.pdf?sequence=1&isAllowed=y.
• Mekong River Commission, Transboundary Water Resources Management Issues in the Sesan and Srepok River Basins of Cambodia and Viet Nam (2017) https://www.mrcmekong.org/assets/Publications/SESAN-SREPOK-Issue-paper-Final-21May20.pdf.
• L. Mohanakrishnan, “Provincial Water Supply and Sanitation Project, Cambodia”, Japan Water Research Center, 31 July 2019, available at http://www.jwrc-net.or.jp/aswin/en/newtap/report/NewTap_IWP17.pdf.
• Maria Larsson, Water Resources Usage and Management in the Mekong Region and Cambodia: Challenges and Future Prospects, CICP Working Paper, No. 40 (2011) http://www.cicp.org.kh/userfiles/file/Working%20Paper/CICP%20Working%20Paper%20No%2040_Water%20resources%20usage%20and%20management%20in%20the%20Mekong%20region%20and%20Cambodia.pdf.
• Samuel Pitchford, Mekong River Drought Highlights the Need for a Water Treaty (2020) https://www.humanrightspulse.com/mastercontentblog/mekong-river-drought-highlights-the-need-for-a-water-treaty.
• European Investment Bank, Clean Water for Cambodia (2019) https://www.youtube.com/watch?v=DCJs_UzcUfw&t=46s.
• SNV Netherlands Development Organisation, Rural Water Supply in Cambodia (2015) https://www.youtube.com/watch?v=ZDdHrfDtmi8.
• Reuters, ‘Mekong River Groups Urge China to Show Transparency after Dam Report’, Bangkok Post (2020) https://www.bangkokpost.com/world/1900570/mekong-river-groups-urge-china-to-show-transparency-after-dam-report.
• Pech Sotheary, ‘Mekong River Countries Urged to Reconsider Hydropower Dams’, Khmer Times (2019) https://www.khmertimeskh.com/628833/mekong-river-countries-urged-to-reconsider-hydropower-dams/.
• Water Aid, Cambodia, https://www.wateraid.org/where-we-work/cambodia.
• Khouth Sophak Chakry, ‘Water Shortage Raise Alarmin Phnom Penh’, The Phnom Penh Post (2020) https://www.phnompenhpost.com/national/water-shortages-raise-alarm-phnom-penh.

End Water Poverty, www.endwaterpoverty.org/.

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^[1] World Bank, Water Overview (2018) http://www.worldbank.org/en/topic/water/overview#1.

^[2] UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, A/RES/70/1 (2015) https://sustainabledevelopment.un.org/post2015/transformingourworld.  

^[3] UN General Assembly, The Human Right to Water and Sanitation, A/RES/64/292 (2010)

http://www.un.org/es/comun/docs/?symbol=A/RES/64/292&lang=E.   

^[4] UN General Assembly, The Human Rights to Safe Drinking Water and Sanitation, A/RES/70/169 (2015) https://undocs.org/A/RES/70/169.

^[5] UN Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (2003) http://www.refworld.org/pdfid/4538838d11.pdf.

^[6] Catarina de Albuquerque, Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, A/HRC/15/31 (2010) https://www2.ohchr.org/english/issues/water/iexpert/docs/a-hrc-15-31-aev.pdf.

^[7] Bree Farrugia, ‘The Human Right to Water: Defences to Investment Treaty Violations’, Arbitration International, 31 (2015) pp. 261–282, https://academic.oup.com/arbitration/article/31/2/261/190022.

^[8] International Council on Mining and Minerals (ICMM), Practical Guide to Catchment-Based Water Management (2015) https://www.icmm.com/website/publications/pdfs/water/practical-guide-catchment-based-water-management_en.

^[9] International Finance Corporation (IFC), Performance Standard 3 – Resource Efficiency and Pollution Prevention (2012) https://www.ifc.org/wps/wcm/connect/115482804a0255db96fbffd1a5d13d27/PS_English_2012_Full-Document.pdf?MOD=AJPERES.  

^[10] Sanitation and Water for All (SWA) Partnership, http://sanitationandwaterforall.org/.

^[11] Sanitation and Water for All, Strategy 2015-2020, https://www.sanitationandwaterforall.org/sites/default/files/2020-02/Strategy%202015-2020%20SWA%20-%20EN.pdf.

^[12] Sanitation and Water for All, Why do we need SWA?, http://swa.thebyteflow.com/faq/question-number-1/.

^[13] Sanitation and Water for All, Partners, https://www.sanitationandwaterforall.org/partners.

^[14] Unilever, Water Use, https://www.unilever.com/sustainable-living/reducing-environmental-impact/water-use/.

^[15] Alliance for Water Stewardship (AWS), An Introduction (2019) https://a4ws.org/download/aws-an-introduction/.

^[16] Alliance for Water Stewardship (AWS), The AWS International Water Stewardship Standard 2.0, https://a4ws.org/the-aws-standard-2-0/.

^[17] World Business Council for Sustainable Development (WBCSD), CEO Guide to Water – Building resilient business (2018) www.wbcsd.org/Programs/Food-and-Nature/Water/Resources/CEO-Guide-to-Water-building-resilient-business.

^[18] Andrea K. Gerlak et al., ‘Taking Stock of the Human Right to Water’, International Journal of Water Governance 6:4 (2018) www.ijwg.eu/pub/86/115728-16-127-RR.pdf.

^[19] World Bank, International Development Association Project Appraisal Document on a Proposed Credit in the Amount of SDR 39.3 Million (US$ 55.0 Million Equivalent to the Kingdom of Cambodia for a Water Supply and Sanitation Improvement Project (2019) http://documents1.worldbank.org/curated/en/942241554084076305/pdf/Cambodia-Water-Supply-and-Sanitation-Improvement-Project.pdf.

^[20] Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (1995) http://www.fao.org/faolex/results/details/en/c/LEX-FAOC017433/.

^[21] Cambodia, Law on Water Resources Management (2007) https://ppp.worldbank.org/public-private-partnership/library/cambodia-law-water-resource-management.

^[22] Cambodia, Sub-Decree on Water Pollution Control (1999) http://sithi.org/temp.php?url=law_detail.php&id=88.

^[23] Royal Government of Cambodia, Cambodian Sustainable Development Goals (CSDGs) Framework 2016 – 2030 (2018) https://data.opendevelopmentcambodia.net/dataset/cambodian-sustainable-development-goals-framework-2016-2030/resource/d340c835-e705-40a4-8fb3-66f957670072.

^[24] Royal Government of Cambodia, National Strategy for Rural Water Supply, Sanitation and Hygiene 2011-2025 (2011) https://data.opendevelopmentcambodia.net/library_record/2011-2025.

^[25] International Bank for Reconstruction and Development/ The World Bank, “Water Supply and Sanitation in Cambodia: Turning Finance into Services for the Future”, 2015. pp. 10 – 12 & p. 40.

^[26] EarthRights International et al., Submission to UN Special Rapporteur on the situation of human rights in Cambodia Hydropower Dam Development in Cambodia: Lower Sesan 2 and Stung Cheay Areng Hydropower Projects (2015) https://earthrights.org/wp-content/uploads/submission_to_special_rapporteur_on_hydropower.pdf.

^[27] Cambodian League for the Promotion and Defense of Human Rights (LICADHO) et al., Smoke on the Water: A Social and Human Rights Impact Assessment of the Destruction of the Tompoun/Cheung Ek Wetlands (2020) http://www.licadho-cambodia.org/reports.php?perm=231. In Khmer at http://www.licadho-cambodia.org/reports/files/231kSmoke%20on%20the%20Water_KH_Final.pdf.

^[28] Beatrice Mosello & Declan O’Leary, How to Reduce Inequalities in Access to WASH: Urban Sanitation in Cambodia, Overseas Development Institute (2017) https://www.odi.org/sites/odi.org.uk/files/resource-documents/11605.pdf.