Initially published in Devex by Rebecca Root on October 26, 2020
Little was mentioned, however, of the behind-the-scenes controversy leading up to it, including a vicious clash between pro- and anti-private sector advocates, accusations of “interference” and bias on both sides, and an appeal to the U.N. Human Rights Council.
The report aims to act as a guide to states as they decide whether or not to privatize water and sanitation services by laying out the human rights risks — such as unaffordable services, neglect of sustainability, no improvement or deterioration of services, and corruption — and how to mitigate those risks. The process of putting the research together began at the end of last year with a series of consultations with various entities, followed by a questionnaire.
That process was flawed, according to Neil Dhot, executive director at AquaFed, the International Federation of Private Water Operators. From the start, the concept note was very anti-private-sector and seemed prejudged, he said. Dhot said it is not the findings of the report but the process — with a lack of published meeting notes and critiques, and questionable evidence — that concerns him.
The advocacy group says it was excluded from an expert consultation early on and, while it had hoped to be privy to notes so it could still feed into the process, no such information was published.
In an email to Devex, Heller said the procedure for developing a report is well established and that meeting notes are never published. “AquaFed pressed all the time to subvert this standard procedure and to publish in advance documents that they produced,” he wrote.
Having shared these concerns both publicly and directly with Heller in a series of communiques throughout the process, AquaFed wrote letters to the president of the Human Rights Council and the U.N. high commissioner for human rights earlier this month.
The letters accuse Heller of having made infringements on the Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council. Some of the alleged infringements included depending heavily on anti-private sector stances without completing due diligence, ignoring certain contributions, and excluding a comparison of services managed by public/state operators in the concept note.
One letter, dated Oct. 1, also called for Human Rights Council members to do “due diligence” in ensuring that the opinions of Heller’s successor wouldn’t interfere with their mandate as special rapporteur. The council has since appointed Spanish professor and ecologist Pedro Arrojo-Agudo to take up Heller’s role once his second term finishes at the end of November.
David Boys, deputy general secretary of Public Services International — a federation of more than 700 trade unions — said the “topic always generates heat,” but the way AquaFed has gone about “undermining” the report has been obscure, backhanded, and, at times, nasty. “Because [privateers] have one imperative, which is to maximize profit, they know how to game the system,” he said. “But this issue is real, it needs to be debated, and AquaFed can’t try to shut it down.”
In response to the criticism, a group of organizations — Corporate Accountability, the Global Initiative for Economic, Social and Cultural Rights, Public Services International, and the Transnational Institute — issued a statement of support for Heller. In it, they call out AquaFed for trying to “silence and discredit” Heller with “unfounded” concerns, for questioning his impartiality, and for “undermin[ing] the independence of the Special Rapporteur and his work.”
“This interference is a transparent and unacceptable attempt to protect the industry’s profits from exposure to the reality of the lived experience of far too many who have had their human rights violated under privatisation,” it says.
Dhot said asking questions and calling out opaque practices had been interpreted as trying to undermine Heller, when that’s not the case. AquaFed has always had a good relationship with and supported the rapporteur, he said. “It was never our feeling that Leo shouldn’t do this report … we’re not challenging anything of what his report said, we just wanted a bit more of a due process.”
The joint statement says that the report went through several consultations “that go far beyond what is expected or what is the usual practice under U.N. Special Procedures.”
So far the statement has gained 160 other signatories. In an email, Heller said he was “thrilled” with the statement of support. “It is a recognition of the correct path of the entire process of the report, including the openness and wide consultation carried out and the rigor of its content,” he wrote, adding “I would say that my term at the U.N. could not finish better.”
Heller accused AquaFed of bias and said the group has disagreed with his approach to both the process and the content of the report on several occasions. “My sincere opinion is that AquaFed used a strategy to disrupt the (transparent) process of preparing the report, in order to discredit its content and to undermine my reputation,” he wrote.
Describing the report as “innovative,” Heller said “the narrative that prevails in the human rights community is that human rights should be neutral — or ‘agnostic’ — regarding the type of provision and provider.” This report looks at the privatization of water and sanitation from a different angle, he said.
“Most importantly, [AquaFed] are a visible exception in the evaluation of the report, which has received enthusiastic support from actors with different backgrounds,” Heller said.
This isn’t the first time the report has generated discussion. In April, Peter Glas, chair of the Organisation for Economic Co-operation and Development’s Water Governance Initiative, wrote to Heller and others stating that “the critical question underlying the achievement of the human right to water and sanitation is not whether service delivery should be publicly or privately managed, but what is most effective in the context.”
In May, Dr. Emanuele Lobina, principal lecturer at PSI’s research unit at the University of Greenwich, wrote a response noting his “surprise” that the OECD WGI would be against conversations around the choice between public and private service delivery.
Industry interference and pushback on the report had been expected, said Taylor Billings, press secretary of Corporate Accountability — an organization working to prevent transnational corporations from “devastating democracy, trampling human rights, and destroying our planet.” The private water industry continuously attempts to avoid responsibility, pitching themselves as a silver bullet for WASH, she added. But AquaFed has taken it to the next level by personalizing attacks against Heller and his process, she said.
“It’s likely they don’t like that this report exists in the first place because it poses a real threat to their businesses and members’ businesses … It was really important to us to highlight the industry’s attempts to discredit this report with pretty baseless claims,” Billings said.
For PSI’s Boys, this incident represents “the encroaching corporate control of almost every public institution.”
“We’re trying to stop AquaFed from their manipulations but we’re also trying to open up more discussions that deal with the broader manipulations of why can’t the GAFAs [Google, Amazon, Facebook, Apple] pay their taxes, why can’t the 1% pay their taxes, why are there still so many tax havens open,” he said.
Dhot said the organizations in question are “anti-privates” and that AquaFed is not a “private sector nasty [operating] behind the scenes.”
“There’s much bigger issues at play that deserve the sector status here, like the 3 billion that don’t have water. We should really focus on that, put the polemics to one side, and work together in partnership better,” he said.