In search of clean water: human rights and the mining industry in Katanga, DRCAndrés Zaragoza Montejano, November 2013
Today, around 1,8 billion people in the world do not have access to safe water. In the Democratic Republic of the Congo, the most water-rich country in Africa, 51 million people lack access to potable water; only 26% of the population has access to safe drinking water. This is one of the lowest access rates in the world.
In the Katanga province, rich in cobalt and copper, some industrial mining companies operate provoking significant pollution of water sources, seriously affecting the local population. Although there is a lack of comprehensive data available, several studies conducted by local civil society show environmental, health and socio-economic negative effects.
As a State party to the International Covenant on Economic, Social and Cultural rights, the DRC has the obligation to respect, protect and fulfil the human right to safe drinking water of its population. The Congolese government has to take effective measures to combat water pollution by industrial mining companies, following the work made at the African Human Rights System in relation to natural resources governance and human rights.
This report begins by setting out the context in the Katanga province and providing an overview of the human right to water. It then assesses, firstly, whether mining companies comply with the national mining regulations, stressing also the importance of the UN Guiding Principles on Business and Human Rights and taking the concept of human rights due diligence as a benchmark; secondly, the performance of the DRC vis-a-vis its international human rights obligations, emphasising the participation of state-owned companies in the mining sector; and lastly, the role of the home States of the polluting companies and their extraterritorial obligations regarding the protection of the human right to water in the DRC.
The Congolese legislation regulating the mining sector is fairly developed and obliges companies to make sure that they do not pollute water sources as part of their operations. Although the law could be improved to include human rights due diligence (a concept embedded in the UN Guiding Principles on Business and Human Rights) as a requirement to protect the right to water from corporate abuses, the core problem lies in the implementation and enforcement of the law.
The Congolese State fails to provide adequate protection for the human right to water of its citizens. The lack of law enforcement, the structural corruption, the insufficient capacity of public officials or the fundamental problems in the justice system are some of the causes leading to the negative situation regarding the right to water in the Katanga province and the impunity in which many mining companies operate.
The Congolese State participates actively in the mining sector in Katanga through the state-owned company Gecamines or by being a required shareholder in the entities conducting their operations in Katanga. The State has to take into consideration its human rights obligations also when participating in the mining industry and use its prominent position to make sure it fulfils its responsibilities regarding the right to water.
Many foreign companies carry out their mining operations in the DRC through subsidiaries that are sometimes involved in human rights abuses. Considering that the Congolese government is often not able or willing to protect the human rights of those within its jurisdiction, an additional possibility is to examine the extraterritorial human rights obligations of the home States of these foreign companies. These obligations are outlined in the Maastricht Principles, a document taking forward the growing view that States should protect the human right to water from the abuses made by companies, also outside their territory.