November 25, 2007
Searching for Human Rights to Water Amidst Corporate Privatization in India: Hindustan Coca-Cola Pvt. Ltd. V. Perumatty Grama Panchayat
By Ghoshray, Saby
The biosphere is a biosphere because it is a hydrosphere. The planet's hydrological cycle is a water democracy-a system of distributing water for all species-for the rain forest in the Amazon, the desert life in the Sahara. Nature does not distribute water uniformly. It distributes it equitably. Uniformity would mean each part of the planet has the same amount of precipitation, in the same quantity, and the same pattern. It would mean the same plants grow across the planet, the same species are found everywhere. But the planet creates and maintains diversity, and this diversity evolves because of diversity in water regimes. However, within each ecosystem, each agro-climatic zone, water is equitably distributed- all species get their share of water. Nature does not discriminate between the needs of a microbe and a mammal, plants and humans. And all humans as a species have the same sustenance needs for water.1 I. Introduction
I'd like to buy the world a home
And furnish it with love
Grow apple trees and honey bees
And snow white turtle doves.
I'd like to teach the world to sing
In perfect harmony
I'd like to buy the world a Coke. And keep it company.
That's the real thing.
What the world wants today
Is the real thing.4
This bubbly song appears to be harmless. However, as we move beyond the smokescreen of the illusionary television world and join the battlefield in Afghanistan, a country that is part and parcel of the war on terror, we find a place far from "perfect harmony."
In his efforts to win the hearts and minds of the citizens of Afghanistan, its leader, President Hamid Karzai, opened a US$25 million Coca-Cola bottling plant in Kabul on September 10, 2006.5 This was a curious investment, considering that the Afghan people are some of the most malnourished and poorest across the globe. Even with U.S. involvement to rebuild the bombed-out country, there still is no clean water and little if any food or medical care. "Three- quarters of Afghans drink filthy water-when they can get any water at all. So what's the international solution? Coca Cola, of course. The great American export."6 No doubt, Coca-Cola has been a benefactor in the "war on terror"7 in Afghanistan. While Coca-Cola benefits, I purport that the Afghani citizens would be offended by Coca-Cola's song about "honey trees" and "snow white turtle doves." By entering the Afghan market with its current water crisis, instead of helping the impoverished people, Coca-Cola's bottling process will only compound the water shortage. "Most of the water has dried up in the provinces of Herat, Badghis and Ghor, and the wheat harvest is down by 90% to 100% in parts of Faryab province. But why worry?-Send for Coca-Cola to use up even more water."8
It is not a riddle when a child in Afghanistan is hungry, thirsty, and crying. The crying child wants water, not a Coke. By further harming and depleting the local water source, the nation is further destabilized, and the goal of reaching liberation and democracy appears implausible.
Let us leave Afghanistan and consider Coca-Cola's impact on other populations as documented in several foreign supreme court and state court cases. These cases stand as a testament to the negative effects on local water sources and the disenfranchisement of the most vulnerable individuals in these communities.
In the democratic country of India, the issue of water privatization9 and the citizens' right to water10 took an interesting turn in 2003. A village governing body unanimously voted to cancel the license of the Hindustan Coca-Cola Beverages Pvt. Ltd.'s (Coca-Cola's) bottling plant operations.11 The order noted, "die excessive exploitation of groundwater by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places, it is resolved in public interest, not to renew the license of the said Company."12 This decision by the Panchayat13 (village council) body was challenged by Coca-Cola, and the state government stayed the cancellation and directed the Panchayat to create an expert committee to perform various environmental tests to ascertain the truth. The Panchayat appealed the state government decision to the High Court of Kerala,14 where a single judge accepted the argument of the Panchayat on the grounds that excessive extraction of a public resource by a private actor is against the public interest.15 On appeal by Coca-Cola, the appellate bench of the High Court, consisting of two judges, reversed the ruling.16 The appellate court asserted that it did not find a sufficient reason to rule against the multinational's right to extract water,17 nor did it find the extraction of excessive natural resources to violate the law.18 The court further reasoned that Coca- Cola had properly exercised its property rights to extract water from its own property.19 As part of its decision, the appellate court noted that the Kerala High Court had imposed both impossible conditions and unworkable propositions,20 and thus acted unjustly against the multinational.21 The case is currently pending witii the Supreme Court of India on appeal.22
While the Kerala High Court decided the case on statutory interpretation23 of existing laws regarding the protection and enforcement of the right to water,24 the ramifications go far beyond existing legal discourse.25 As rampant industrialization devours pristine natural resources and alters an agrarian way of life, the decision pending by the Supreme Court of India could become vitally significant. At the heart of the case lies perhaps the most poignant legal battle of the current century: the corporate right to privatization versus the indigenous right to water. Perched at this fascinating crossroad, this particular case debating water rights in India promises to open multiple legal frontiers. While constitutional jurisprudence in India has matured significantly in order to deal with emerging issues of environment, human rights, and competing property rights, the appellate bench of the High Court of Kerala has largely bypassed deeper issues germane to the case. The debate goes beyond property rights, as it opens up more profound issues about whether the right to water belongs in the category of human rights.
Since time immemorial, the access to water has spawned new civilizations, defined the shape of existing civilizations, and charted the course of humanity.26 Therefore, continued denial of water to the agrarian community in Kerala27 and the possible destruction of the water aquifer in nearby regions28 not only goes against the established theme of riparian rights,29 but also goes to the very heart of the debate between privatization and water as a human right. This debate can be captured by the emerging environmental jurisprudence in India.30 The unapologetic way in which Coca-Cola has continued its unbridled extraction of water confronts us with questions. Is the right to water a property right?31 Must the right to water go further than mere property rights and bestow a more fundamental right emanating from the natural rights doctrine?32 The present case of Hindustan Coca-Cola Beverages Pvt. Ltd. v. Perumatty Grama Panchayat promises to explore these issues from multiple legal frontiers.
The reversal by the appellate bench of the Kerala High Court was based on a strict interpretation of existing legal framework.33 The significance of the issue goes far beyond the grasp of the appellate bench of the Kerala High Court. In its statutory interpretation of law, the court invoked a litany of common legal doctrines, such as property rights, regulatory compliance, and the rights of a legal person in order to justify distributing to a multinational corporation the right to extract water excessively.34 The court passed over the opportunity to produce a judicial opinion with substantial impacts. It stayed within narrow predictable doctrinal boundaries on specific provisions while ignoring a more expansive view long upheld by the Constitution of India.35 In my humble analysis, therefore, the opinion of the appellate bench of the Kerala High Court contains insignificant juridical precedent and thus should be corrected by the Supreme Court of India.
Coca-Cola's water privatization effort in the present case goes against established legal precedent in India. The Supreme Court of India has called for judicial protection of public interest in environmentally-critical resources, such as water, while invoking the public trust doctrine. The Supreme Court of India has repeatedly held that the right to clean air and unpolluted water is part of the right to life under Article 21 of the Indian Constitution.36 In M.C. Mehta v. Kamal Nath and Others,37 the court based its ruling on the public trust doctrine, under which the government is the trustee of all natural resources, which are by nature meant for public use and enjoyment. By reviewing several public trust cases from the United States,38 the Supreme Court of India noted that English common law doctrine, traditionally used only in navigation, commerce, and fishing, is now being extended to all ecologically important areas in botii land and water including freshwater, wetlands, and riparian forests. The court relied on these cases to conclude that the government cannot commit a breach of public trust by leasing ecologically fragile land to corporate interests where it will be used for purely commercial uses. Therefore, even if we concede that there is no law governing groundwater, the Panchayat and the State are obligated to protect groundwater from excessive exploitation. This leads to an obvious question: Who does the groundwater in question belong to-the landowners of the nearby land, the community in general, or Coca-Cola? Let me reiterate: the appellate bench has used a flawed conception of absolute property rights. It would have been more prudent to use customary rights, whereby a landowner could draw a reasonable amount of water, in conformity witii domestic usage and agricultural requirements. Extracting 500,000 liters of water per day, directly interfering with the natural underground water aquifers, far exceeds any reasonable withdrawals.39 It is important to also reiterate that the privatization of water negatively impacts the natural environment and its attendant social, cultural, and economic dependencies. The issue of ecosystem integrity for cultural survival and equal protection from ecological burdens should come before us as we delve into a more expansive understanding of the Indian villagers' battle against the goliath Coca-Cola.40 Once we peel off the layer of statutory interpretations employed by the appellate judges, we begin to see a more global phenomenon. Unbridled privatization of public lands via multinational corporate encroachment has been the rallying cry for decades of the less industrialized parts of the world, which depend on multinational money for the development and industrialization of infrastructure.41 While we cannot discount the industrial needs of our advancing civilization, the detrimental impact of industrialization on nature, environment, and agriculture is mostly submerged in the dazzle of corporatization.42 The plight of the agricultural-based population of the Plachimada village43 in Kerala is no different than the plight of the Miccosukee Indians in the Florida Everglades44 or the pressure to surrender land rights felt by the native Hawaiian Kuleana population.45 Implicit in each of these situations are elements that go to the very core of the survival of human tradition. Blinded by the infected eye that seeks corporate privatization, we have become hopelessly apathetic towards the needs of indigenous populations. Therefore, this article will engage in a broader human rights law discourse, as it debates the right to privatize against the right to water. Moreover, the case before us, the plight of the Indian villagers, is one of the first of its kind: the privatization rights of a multinational company has never been pitted against the survival of a native population and the threat to the environment in quite this way. However, the Supreme Court of India has already explicitly asserted the doctrine of the right to life in various cases, where it have given primacy to environmental safeguards in addition to espousing an explicit interest in human rights issues. This is especially significant now, as the emerging economies of the world are confronted with the specter of sacrificing the need for industrialization in the face of a growing concern of exploitation by multinational companies.
Keeping the historical significance of this issue in mind, this article will proceed toward the ambitious goal of defining a right to water. In Part II, I will discuss property rights both from the perspective of Indian law and international law to frame the property rights analysis of the appellate bench of the Kerala High Court. The court held that the multinational's behavior did not amount to a violation of the regulatory framework. This examination of the court's opinion will illuminate whether the findings are based on a narrow doctrinal analysis and inconsistent with emerging jurisprudence of humanity and equality. With Part II setting the stage for a comprehensive background analysis, I will engage in a more expansive discourse of water rights predicated on fundamental rights in Part III. This leads to Part IV where I continue my discussion on emerging human rights doctrine and examine whether privatization by multinationals must follow a certain natural rights framework. Finally, the article will conclude by asserting that a proper adjudication of water rights must recognize the tension between the multinationals' right to privatize and the public's right to water. Primacy must be given to the fundamental right to water for sustenance over the distribution of water for corporate profits. The only logical outcome of this is that the limits and scopes of the future expansion of rights to multinationals must be construed within a broader construct of human rights.
II. RIGHTS TO WATER PRIVATIZATION: GOING BEYOND TANGIBLE PROPERTY RIGHTS
Traditional property rights analysis provides a legal description of the allocation and enforcement of rights between a legal person and a tangible entity. This legal description centers on a strict interpretation of the doctrine of property rights,46 which predominantly provided the base of the appellate bench of the Kerala High Court's adjudication in favor of Coca-Cola. However, water does not fall into the same category as other tangible substances by virtue of its dynamic nature and because it is a natural resource fundamental to the survival of all living organisms. Therefore, it is extremely difficult to justify how tangible property rights analysis can be utilized to assign rights to water. In this context, the verdict returned by the appellate bench of the Kerala High Court is based on flawed invocation of a legal rights doctrine.
Historically, the right to water has been adjudicated based on laws centering on riparian rights.47 There exists an extensive body of legal development on riparian rights that originated in the common law regime in the United Kingdom as far back as the 1800s.48 Even though the riparian rights doctrine has not developed adequately to accommodate emerging environmental jurisprudence surrounding water rights, it could provide a legal basis to understand doctrinal differences between rights to water and rights to other tangible property. The stubborn rule-making by the appellate bench of the Kerala High Court did not even remotely consider this potential legal basis in its decision
Even though India's constitutional jurisprudence is quite mature in accommodating the fundamental right to life when adjudicating cases surrounding the assignment of natural resources,49 the appellate bench in the current case failed to appreciate water's special place as a dynamic natural resource.50 While focusing on the basic relationship concerning static, tangible property rights, the court remained silent with regard to established jurisprudence in India that identifies the special relationship between water and humanity.51 Thus, by resorting to rules governing static, tangible property, the court based the legality of the extraction on a flawed legal basis for determining rights for a dynamic property like water. Interestingly enough, the court's invocation of the distinction between a legal person and a natural person brought in the required dimension needed for a full scope analysis, but it fell short of being able to determine whose right must hold sway over the other person's right, as it did not explicitly distinguish between legal persons and natural person52 in this context.
A. EXAMINING THE RIPARIAN DOCTRINE: SPECIAL STATUS OF WATER AS A NATURAL RESOURCE
The fundamental logic behind the conclusion as to why static, tangible property rights are not applicable to the assignment of water rights is that water is always moving and is constantly mutating in shape as it alternates between store and flow.53 All parcels of water are continguous. Therefore, the right to water, even under a strict statutory interpretation of property rights, becomes extremely difficult to ascertain due to the complexity in establishing a legal relationship between the natural resource and its natural owner. The issue becomes further complicated if there exists multiple right-holders within a single parcel of water. Development of riparian law in this context has attempted to solidify such legal relationships by departing from the basic property rights doctrine. English riparian law was developed by incorporating an explicit understanding of the hydrologic cycle on a foundation of English common law.54 By carefully resorting to a calibrated approach to determnine the proper entitlement of me available water supply and by balancing quantities with purpose and place of usage, the riparian law closed the doctrinal inadequacies of the property rights doctrine.55
In the landmark 1926 case Mod v. Boyd56 and later in Valmont Plantations v. State57 in 1961, the Supreme Court of Texas held that the right to water for irrigation does not accrue unless explicitly mentioned in the land grant. While the case against Coca-Cola does not involve the right to water for irrigation, the holdings of Motl and Valmont can be extended to determine whether the reasonable use doctrine58 is applicable here. That is, when disputes emerge amongst multiple right-holders regarding the quantity of usage, rights of usage emanate from either prior appropriation doctrines or statutory mechanisms. The lease Coca-Cola signed with the Panchayat did not contain an explicit provision granting Coca-Cola the right to extract water from its purchased land in amounts exceeding the reasonable amount allowable. The vexing issue of property rights that lies at the center of this debate is predicated on the lack of an explicit understanding of whether acquired land automatically bestows on the acquirer the right to water that flows underneath it. The same series of cases discussed above does not provide us with any opening for an expansive meaning that supports the assertion that land acquired by the property owner grants exclusive riparian rights. This was further established in post-Valmont cases, such as State v. Hidalgo Water Control and Improvement District in 1969,59 which asserted that water rights of appropriation emanate only via statutory procedures.60 This clearly weakens the absolute property right of a landowner and brings in the much-needed balance to adjudicate rights to such an important natural resource under a more comprehensive and robust framework containing multiple legal constellations, ranging from statutory procedures, prior- appropriation, and associated rights of property ownership.
The historical development of riparian law teaches us that a significant difference exists regarding property rights between flowing surface water and percolating groundwater.61 The riparian rights regarding groundwater were first encountered under English law dating back to Houston and T.C. Railway Company v. East62 in 1904 where the court examined the relevance of the reasonable use doctrine in assigning riparian rights of ownership. The court held that the property owner is entitled to "reasonable use" that decreases stream flow or restricts water flow in nearby parcels of land63 as long as other riparian right-holders are not unreasonably harmed. The doctrinal developments of these cases are grossly inconsistent with the decision of the appellate bench in this case- not on substantive grounds, but rather because of a narrower approach by the latter. Clearly, this case involves multiple riparian right-holders, all of whom except the multinational company have been adversely impacted by the unreasonable usage of water by Coca-Cola. Therefore, the learned court's inability to frame the scope of its investigation and apply relevant legal doctrines severely restricted the legitimate rights of the Indian villagers while expanding the rights of the multinational corporation in an inequitable way.
B. LEGAL PLURALISM AND VARIATIONS OF PROPERTY RIGHTS
The failure of the appellate bench of the Kerala High Court in writing an opinion that is both consistent with the development of water rights elsewhere and in conformity with the Indian Supreme Court's established jurisprudence presents an opportunity to illuminate areas where jurisprudential enlightenment in the India is needed. Hopefully, in the future, the courts will be adequately prepared to adjudicate cases of such magnitude within the context of legal pluralism64 and dynamic property rights. It is important to elevate the debate regarding water extraction on leased industrial property beyond the typical hackneyed conception of property rights. In the context of developing jurisprudence and an evolving socio- political environment, legal pluralism can provide adaptive responses to environmental or economic uncertainties, as well as social and political changes.65 Therefore, legal pluralism is the right forum within which the uncertainty surrounding this right to water can be effectively envisaged. The linkage between legal pluralism and property rights66 has been well established in the literature, which explicates how legal pluralism can effectively sort out the differences among various types of uncertainties within property rights.67 In the current discourse, the ecological and economic uncertainties have been outside the scope of review by the appellate bench, but they must not be divorced from the proceedings altogether.68 A correct judgment must also view complex water rights through a multi-dimensional prism of uncertainties. The current judgment is inadequate. While the court did not divorce itself from addressing uncertainties emanating from social and political arenas, it lowered the juridical value of the decision because it did not address ecological or economic uncertainties. Therefore, the present case requires finding answers within the answer. By shifting our narrow focus away from fixed property rights, this concept of legal pluralism can bring us to the forefront of dynamic property rights. This will indeed assist in leveling the playing field and bringing in various forms of non-state laws to determine the rights of other riparian actors.69
C. CONTINUITY AND ABSOLUTENESS: WILL IT WORK FOR WATER RIGHTS?
The appellate bench of the Kerala High Court, in addition to the exploitation argument, relied heavily on the property rights doctrine. In this context, there are two essential elements of the court's holding. First, the court is of the opinion that a residual or attendant property right of land exists.70 second, the court understands that there is an almost limitless right attached to the natural person having who holds the property right. The court cannot delineate the right to the land from the right to the water underground.
The above conception of property rights espoused by the appellate bench of the Kerala High Court is flawed on multiple grounds. Water cannot be seen as other tangible commodities, and thus assignment of traditional property rights should be abandoned. Furthermore, the reasonable use doctrine examined earlier provides a newer frame through which property rights (or their lack of assignment in certain cases) have to be viewed. Lastly, a recent significant development in property rights jurisprudence-continuity, or the issue of bringing a temporal element to property rights-can perhaps help us garner validation in the proper enumeration of property rights.
The continuity doctrine requires property rights to be attached to the recipient of that right based on evidence of continuous enjoyment of such property. This doctrine is especially used in cases of contested properties. Even though the current situation regarding Coca-Cola's extraction of water may not appear on the surface as a contested case, the very special status of water could elevate it to contested property status. Because, of water's special attributes, including historic, cultural, and human rights, there should be no doubt about designating it as a contested property. This contested property element then allows us to apply the temporal element of the property rights doctrine, in which case the Hindustan Coca-Cola Beverage Pvt. Ltd. company has no case whatsoever.
In this particular context, I have taken a leap of faith in bringing in the temporal element of continuity to judge water rights. Legal realism, for a practicable outcome in most cases, must be tempered with grounded realities of legal tradition. Unfortunately, the development of property rights law in India, the empowerment of the judiciary at the lower courts, and an implicit reluctance in finding relevance in legal pluralism makes it difficult to enter an uncharted territory of legal jurisprudence. Entrance to this bold arena of legal reasoning requires a precipitous leap of faith and courage of conviction that are hopelessly lacking in the parlance of the Indian judiciary.
Finally, no discussion of property rights in water is complete without seeking relevance within the hitherto-unexplored terrain of property law, the concept of absolute property rights. The rights in question here must deal with groundwater, percolating continuously without any identifiable barrier. There can be scenarios in which water rights of various stakeholders crisscross an overlapping canvas containing asymmetric rights and obligations. The problem is in dealing with multiple contiguous stakeholders whose individual frontiers of rights can be extremely non-delineated. For example, the land in contention in the current case belongs to Coca-Cola and the nearby lands belong to the public.71 For argument's sake, if we concede that Coca-Cola possesses unlimited rights to extraction, then by extension of that same right, the public has the right to extract an unlimited amount of water. If we take out the constraint of environmental safeguards in this scenario, the result is an unworkable outcome. Therefore, the instant case requires defining the identity of each stakeholder, and such enumeration must limit the absolute rights and delineate the territory along which those rights extend.
Finally, even if we are able to properly define and explicate the limits of absolute right from a theoretical construct, the idea of such rights seems flawed. If both the landowner of the property in question and its contiguous areas of land have owners and each retain absolute property rights within their respective parcels of land, they still cannot extract excessive water. Because water is dynamic and continuously flowing, it is not possible to identify fixed amounts of water that can be available under the respective tracts of land. Therefore, in the instant case, we must desist from engaging in any absolute property rights analysis.
III. RIGHT TO WATER AS A HUMAN RIGHT
Uneven distribution of water creates asymmetric demand, and as such, access to water becomes vitally important for the sustainable livelihood of humanity across the globe. Encroachment by multinational corporations to privatize water causes both restriction, and in some cases, denial of water to people in developing countries.72 This presents a unique challenge to our civilization. The rush to industrialization is bringing in its wake the unintended consequence of water scarcity among some segments of the population upon whom the fruits of corporatization are supposed to fall.73 Against this backdrop, the right to water as a human right should be understood within a web of multiple distinct threads. Even though this right has been envisioned implicitly as a concept in various declarations and non-binding legal instruments, it has yet to be enshrined officially.74 In view of the tremendous discrepancies that exist currently in the allocation of water rights across different strata of society,75 the right to water gains vital importance for the sustenance of human development, and as such, it must be included as a human right. Furthermore, several rights are so intertwined and commingled with humanity's need for water that it raises the question: Why isn't the right to water encapsulated within a broader discussion of fundamental rights? We should therefore transcend the property rights discussion of water and examine whether the right to water is a human right, a fundamental right,76 or neither. I will argue that the right to water belongs in the class of rights that affects the very core of human existence and therefore can easily be incorporated as one of the fundamental rights. On the other hand, water is the most essential prerequisite to uphold many human rights, and as such, could have an inherent human rights component. section A explores whether there is a historical basis to identify water as a human right. Examining various international legal regimes, case law, and constitutional developments, I seek historical evidence that the right to water is a human right. section B aims to determine whether there is a natural law basis for designating a right to water as a human right. While espousing the view that the right to water is a human right, I examine this from various angles. This connection between natural law and human rights emanates from the very fundamental nature of the human relationship with the environment, and I seek support in that relationships to establish that the right to water is a human right. In addition, I explore whether the limitation of this natural resource could be the basis for a analysis of water as a fundamental right to life. I further attempt to identify where the right to water truly resides along the human rights-fundamental rights continuum. section C explores the human rights doctrine looking through the lens of privatization of water,77 which seeks to find whether there exists an impediment for the designation of the right to water as human right.78 A. HISTORICAL BASIS OF WATER AS A HUMAN RIGHT
The right to water as a human right emanates from established constitutional decisions in various countries and several U.N. declarations. On November 26, 2002, at the end of the 29th session of the U.N. Committee on Economic, Social and Cultural Rights, general comment #15 established a human right to water.79 In addition, paragraph one of Article 11 of the U.N. Covenant on Economic, Social and Cultural Rights specifies a number of human rights that rely on the right to water for their existence.80 Thus, the right to water as a human right emanates from an expanded concept of the right to the highest attainable health. This means every individual on this planet has the fundamental right to strive for, and ultimately achieve, the highest health. However, several studies81 have shown that achieving this highest attainable health has remained ever elusive to populations in third-world countries due, in part, to severe lack of water. From a constitutionally point of view, water has been regarded as vitally essential for establishing humanity's fundamental right to agriculture for sustenance. In Bulankulama v. The secretary, Ministry of Industrial Development,82 the Supreme Court of Sri Lanka established that if a natural resource is originally intended to be used for greater profit for a multinational corporation and if it has a beneficial application for local agriculture if used in a sustainable manner, then the right to the local agricultural use should be given priority.
Borrowing a page from the Sri Lankan Constitution, there is sufficient evidence to suggest that if water in that particular Kerala district in India is used in a sustainable manner, it can be used for the benefit of local agricultural for a maximum number of years. Therefore, multinationals' interests must be overridden in favor of the greater good of the community. This goes to the very core of why the judgment by the appellate bench of the Kerala High Court is erroneous. Analysis of this particular Sri Lankan case reveals that the court based its judgment on an estimation that if the natural resource is processed in a sustainable manner, it can generate benefit for local agriculture for over 200 years.83 Based on this finding, the court ruled that a multinational has no right to create profit by using such natural resources.84 On the surface, the case against Coca-Cola seems easily determinable under this precedent. I would, however, caution against this argument, because it requires a complex valuation exercise to determine whether the overall benefit to the community will have a greater value than that which will accrue to the Coca-Cola company. This valuation is predicated on identifying a proper valuation framework and tools and would require narrowing down the assumptions to reach reasonable closeness to a real scenario.
If a valuation exercise brings in subjectivity of approach and fuzzy assumption, the Supreme Court of India's historic position provides a more objective legal framework for this debate over water rights. In line with its humanistic jurisprudence, the Supreme Court of India has repeatedly used the right to life clause to guarantee environmental safeguards. The Supreme Court standard indicates that the ruling by the appellate bench of the Kerala High Court, which allows virtually unlimited extraction of water, is not sound legal reasoning. This reliance on historical constitutional development suggests that the right to water invites equal protection of law. Ensuring equality of all people will require striking down any legislative measure that denies equitable access to water. Courts should be extremely cautious about encouraging juridical measures or legislative developments that are tantamount to violations of equal rights to water by denying equal access to water for all humanity.
B. CONTINUOUS SPECTRUM BETWEEN HUMAN RIGHTS AND FUNDAMENTAL RIGHTS
This section will demonstrate that the concept of the right to water as a human right emanates from an expanded conception of an individual right enshrined in the constitutional jurisprudence of developed countries. In this way, the concept of water as a human right goes to the very core of fundamental rights bestowed upon humanity. This second thread of the right to water as a human right is based on the fundamental rights doctrine developed contemporaneously in both common law and civil law jurisprudence. section A detailed how the right to water as a human right comes from a broader interpretation of the right to the highest attainable health. But what is the fundamental right of health, and what is the test to employ to determine if this is indeed a fundamental human right?
The constitutions of various countries contain a set of rights similar to the U.S. Constitution, which enumerates certain rights. On the surface, it seems that governments should support certain rights even if they are not necessarily protected by a constitutions. A strictly originalist point of view supports a constitutional interpretation that says we must only protect those rights which are explicitly enumerated in the constitution but also support legislation to protect other rights.85 A more dynamic constitutional interpretation,86 however, suggests a different conclusion-that rights can emanate from various sociological, doctrinal, and environmental developments. There should be certain rights that can be created as a result of evolution of human understanding. For example, as our understanding of the limitation of natural resources matures and as our ability to gauge the adverse impact of environmental degradation on the sustainability of our human civilization grows, primacy ought to be given to certain rights. These rights could include the right to pollution-free air, the right to flowing water, and the right to choose protection of the environment over excessive water commodification. There should be binding legal instruments that protect these rights from the corrosive impact of any governmental regulation, corporate privatization, or any combination of the two. These rights strictly belong to human persons or natural entities as they predominantly emerge from humanity's interaction with nature. These rights do not accrue to a legally-created entity, such as a corporation. Implicit in this expanded conception of rights is the guarantee some rights so fundamental that they can never be regulated by either the government or the legislature. Therefore, no majority, no matter how large, can violate these rights. These are indeed the fundamental rights that can emanate either via humanistic jurisprudence or from natural rights doctrine.
The discussion above points to certain rights that are fundamental yet may not have been properly enumerated within constitutions, as the historical development of the civilization did not recognize them at the time of the constitution's writing. These rights also may not have been protected via the litany of international laws, developments, and treaties that form the broad spectrum of international law. For example, these rights may not have found explicit invocation in the development of The Hague or Geneva stream of laws or other U.N. declarations. On the other hand, these rights are so fundamental that without them, the very existence of a human being becomes unconscionable. How could this happen? Not all rights are automatically incorporated in the Human Rights Doctrine, nor are they always enshrined in the constitution of the relevant State. Along the journey of our civilization, historical developments take place, which determine humanity's need for certain protection or expansion of certain liberties. Rights are created in such opportune moments of time, but when they get realized is a different story.
A legitimate question comes to mind: What test can be employed to identify whether a right belongs to the category of human rights or falls under the umbrella of fundamental rights? Allow me to bring to focus the "shock the conscience" test.87 By applying this test, we are able to determine whether an action or behavior falls outside the standards of civilized decency. Does the human right to water require the creation of new enumerated rights because the nature of that right is so profound that denial of such a right will pass the "shock the conscience" test of constitutional adjudication?
The basic premise of the "shock the conscience" test for certain rights resides in the premise that certain rights are so inherent, so fundamental in the current conception of our human existence that any abrogation or explicit denial of such a right must be seen as shocking the conscience. Not all rights are fundamental rights. Nor are they all human rights. Rights can be envisioned or derivative of existing rights. In order for a right to qualify as a fundamental human right, the right must pass the "shock the conscience" test. From this discussion, it is apparent that the right to water is within this idea of human rights. We now turn to the right to water as a human right that is derived from the natural law conception of basic rights.
Why natural law? The right to water has to be seen through the prism of human existence, through the broader meaning of the human condition and its interrelationship within the natural resource environment. When resources are so limited, they must be utilized with extreme prudence and with utmost efficiency. This prudent and efficient approach is naturally inconsistent with the way corporations engage in unbridled usage of natural resources for profit. This is also the essence of right-creation with the fundamental relationship between nature and human, as humanity tries to control nature. Therefore, the dual paradigm-of the natural law doctrine to establish the right to water as a human right, and the "shock the conscience" test for water as a fundamental right-brings us to a poignant issue. Which do we chose: excessive water extraction leading to interference with the delicate water balance and jeopardizing the basic necessity of life, or the much-needed corporate-backed industrialization shaping civilization's onward march? The final answer must come from the deeper meaning of life, a meaning enshrined in the perpetuation of natural tendencies of humanity. We must not choose scarcity of water over commodification of water. Primacy must not be given to a scenario where countless millions of individuals can be deprived of the basic necessity of life as they cannot afford to buy water. We must choose life over luxury.
The right to water as a human right is based on a conflict between the commercial interest of the multinationals and the fundamental right of preserving basic necessities of the common person who relies on agriculture. Natural law analysis would assert that the commercial interests of a multinational can never supersede the fundamental right to water. In this context, the Supreme Court of India held, "commercial interests are subservient to fundamental right."88 As neocolonialism swings its all-encroaching tentacles to grab every natural resource it finds in its wake, multinationals are building empires in the vacuum of law. The natural right doctrine and the human right doctrine must gain primacy in order to protect this fundamental right. Indeed, this right may not be currently enshrined within the established jurisprudence in the developing world where multinationals are expanding their empires, but it is never too late to incorporate those human rights.
C. COMMODIFICATION AS AN IMPEDIMENT TO HUMAN RIGHTS
What is the nature of the commodification? Should commodification of water be allowed? Should the government be allowing multinationals to privatize water? When is there a limit to unbridled commodification of necessary natural resources? In order to understand the right to water as a fundamental right, we must delineate some contiguous rights because the rights of one entity may be bundled with the rights of other entities. Can we identify the boundary to water rights across the hierarchy of human society that tells us what strata of society can use what amounts of water? Examining the commodification of water, the fundamental issue is to determine the driving factors that enable mass privatization and commodification of subsequent of water.
Delving into the archives of recorded history, we find that access to water has defined civilizations from time immemorial. All the early civilizations of the world were built around major rivers, such as the Tigres, Euphrates, and the Nile. All prospered and proliferated because of their unlimited access to water. The lack of access to water will change the human way of life. Here and now, human civilization comes to a crossroad. Should we allow commodification of water at the cost of losing our way of life? Should we allow the privatization of water and let the infrastructure build while letting agriculture slip away into oblivion? Answers to these powerful issues will shape our tomorrow. Reaching that tomorrow will require recognition of the right to water as a human right, or perhaps a fundamental right.
IV. EMERGING ISSUES IN THE RIGHT TO WATER
In the preceding discussion, I examined various legal doctrines that provide a deeper perspective of water rights. This issue of water rights becomes extremely contentious as it gets clouded within uncertain application of law. The problem comes from the fact that various stakeholders present an asymmetric demand profile for water. Even though I have discussed issues regarding human rights and fundamental rights, other legal paradigms exist which I shall briefly mention. However, a detailed explication of their impact on water rights is not the goal of this part. Rather, I want to illuminate some grey areas concerning rights to water. section A explores how commercial interests of powerful multinational corporations encroach upon the fundamental rights of common people. section B reminds us how governments can ensure that rights for the common people are retained within the framework of law.
A. COMPELLING COMMERCIAL INTERESTS CONFRONTS FUNDAMENTAL RIGHTS TO WATER
The case of water privatization by Hindustan Coca-Cola brings to the surface a complex web of legal constructs made more difficult by the current judiciary's reliance on antiquated law despite having a mature constitutional jurisprudence. Available evidence suggests that Coca-Cola was extracting significant amounts of water from beneath the ground, causing a major shortage of water that may have caused substantial damage to the underground water aquifer.89 If we concede for argument's sake that proof of water shortage resulting from CocaCola's direct action does not exist, the act of exploitation has been established by virtue of an undisputed contracted-for amount of extraction. In reversing the initial judgment of the High Court's, the two-person appellate body visited the issue of exploitation. In its narrow interpretation of the allegation, the court questioned the validity of the act of exploitation and demanded that such allegation be proven beyond a minimum threshold of culpability. Even though Coca-Cola did not encroach into other's land to extract water, its culpability can be seen in its extraction of excessive and unreasonable amounts of water. However, the court's persistence in staying within a narrow confine of literal interpretation of "exploitation" did not allow for an expansive reading to include an examination of the company's exploitative act while staying within the boundaries of its leased land.
The court failed to take into consideration a rather extensive development in property rights. In addition, the term "exploitation" must be understood from a much broader concept given the special status of water. The issue of exploitation has to be understood within the context of three different perspectives. In the first, exploitation must be conceptualized within an explicit recognition of water's special status. secondly, the meaning of exploitation should emanate from a broader understanding of the reasonable use doctrine. Thirdly, the issue of exploitation should be understood through asymmetric usage that brings in its wake the problem of affordability and accessibility.
There are several special features that make water a unique natural resource so that it cannot be a commodity. Commodification is a market-driven mechanism geared towards generating capital by means of developing asymmetric usage and uneven distribution patterns. The issue of water rights gets complicated by the fact that it does not have a pure substitute. If water disappears from a community, they cannot enjoy the same quality of life as they would have without water. Market forces can develop solutions for resource depletions by finding a substitute, which unfortunately cannot be replicated for water. Moreover, water is supplied by nature in a randomly selected distributive pattern, punctuated by a store and flow pattern. This randomness in distribution and unevenness in flow patterns causes both asymmetric demand and uneven access for water. Unreasonable human intervention by one isolated entity, like that in the present case with Coca-Cola, can produce significant detriment to certain communities, like those individuals in the Plachimada Indian village. While Coca-Cola's interest is commercially motivated, the adverse impact is borne by the community in terms of ecological disaster and uncertainty in farmers' livelihood. Thus, the issue of exploitation has to be understood within the dual construct of scarcity of a natural resource and commercial interest in corporate privatization. The appellate division of the Kerala High Court has asserted that any natural person who is the owner of property has the right to extract what is under that property. Contrary to the emerging environmental and humanistic jurisprudence in India, the court gave a nearly carte blanche extraction right to the company, predominantly based on a property rights-based legal reasoning. The court instead should have applied the reasonable use doctrine. This could have been established within the current set- up in two distinct ways. The court could have done a comparison to determine how much water individuals would have extracted in a similar parcel of land by computing individual usage within a smaller swath of land. Alternatively a determination could have been based on developing some measure of water scarcity across two groups, the multinational and the villages who were affected by the scarcity. In this way, the court could have measured exploitation based on a finding of more than excess usage in a normal course of business doing similar activities.
Asymmetric distribution of water diminishes the affordability and accessibility of water to other strata of the population. Typically, asymmetric distribution results from privatization or commodification, whereby the water is associated with a price. If the price in real terms becomes costlier to the poor and disenfranchised, the issue of affordability arises. If, on the other hand, a multinational corporation extracts significant amounts of water such that degradation of the water aquifer in the nearby region causes diminished availability of water to the community, this reduction in accessibility could result. This discussion clearly indicates that exploitation is real. It has real impact on the lives of people. The illustration above helps to demonatrate exploitation through a more meaningful framework than that established by the appellate bench of the Kerala High Court. Surely, if the appellate court utilized a framework similar to the one presented here, it would have arrived at a different outcome.
B. RIGHTS TO SUSTAINABLE LIVELIHOOD AND GOVERNMENTAL RESPONSE
The appellate bench's decision partially hinges on an erroneous explication of the Panchayat's role in the distribution and regulation of water. The court stated, "[mjaintenance of traditional drinking water resources does not automatically strip the company from its right to extract."90 This observation is premised on a confused conception of property rights, which resulted in an erroneous understanding of the state's responsibility towards its citizens.
Common sense dictates that water is an essential element for the survival and sustenance of humanity. Further, commentators have also argued for designating water as a special category of natural resources. As an essential element and its classification within a special category, connected with the continuation of other fundamental rights, it is incumbent upon the State to ensure its protection. There is an implied promise by the State to uphold these rights of deep fundamental nature. Similarly, the State must protect such a right to water for all disenfranchised citizens. In this context, the Miccosukee case discussed earlier is noteworthy. "[I]mplicit with the relationship between State and its subjects lies the contractual arrangement."91 In this contractual arrangement, the State, either directly or through various subsidiaries, is obligated to uphold certain fundamental rights for its citizens. In the present case, the Panchayat acts as the agent of the State in that location, and the Supreme Court of India has already corroborated these findings.
The implications of Hindustan Coca-Cola Company Pvt. Ltd. v. Perumatty Grama Panchayat extend far beyond basic property rights. Excessive extraction of water on leased land by a giant corporation has been challenged by the village administrative body of the State of Kerala in India. This challenge is symbolic of the epic legal battles to come in the upcoming days, as more corporations enter developing countries to expand their corporate empires, often over- utilizing natural resources of these countries. At the heart of this contention lies the conflict between privatization rights of multinationals and water rights.
These water rights cannot be constrained within the narrow confines of tangible property rights. Rather, these rights crisscross multiple legal constructs. While the right to water for the villagers of Plachimada competes with a corporation's right to water privatization, viability of legal pluralism seems more adaptive to assign appropriate rights according to interests. Thus, any assignment of water rights within a community must take into account the competing rights to water of all individuals within the same community.
Finally, the constitutional adjudication in India is setting a trend towards embracing a more humanistic jurisprudence. While the case before us could transcend all boundaries, the Supreme Court of India is preparing to decide perhaps the most vital water rights case of this decade. I shall remain convinced that the right to water in the twenty-first century is about human rights. It is about recognizing the public's fundamental right to water. Therefore, the road to corporate privatization of water must satisfy the human right to water for every citizen.
1. Dr. Vandana Shtva, Resisting Water Privatisation, Building Water Democracy 2 (2006), available at http:// www.globalternative.org/downloads/shiva-water.pdf.
2. Infra note 3.
3. According to the Wikipedia website, "[t]he song began life as a collaboration by UK hit songwriters Roger Cook and Roger Greenaway called 'True Love and Apple Pie' and recorded by Susan Shirley. It was then rewritten by Cook, Greenaway, Coca-Cola account executive Bill Backer, and Billy Davis and recorded as a Coca-Cola radio commercial with the lyric 'I'd like to buy the world a Coke and keep it company.' It first aired on American radio in February 1971, and it was also used as a TV commercial later that year, sparking public demand for its release as a single. The Coca-Cola company waived royalties to the song and instead donated the $80,000 in payments to UNICEF. The song has since been recorded over 75 times." see I'd Like to Teach the World to Sing, http://en.wikipedia.org/wiki/ I'd_Like_to_Teach_the_World_to_Sing (last visited April 27, 2007). See also the complete lyrics to this song available at http:// www.lyricsandsongs.com/song/518922.html.
5. see Reuters, Afghan leader opens Coca-Cola plant in Kabul, The New Zealand Herald, Sept. 11, 2006, available at http:// www.nzherald.co.nz/section/2/story.cfm?c_id=2&objectid=10400744.
6. see Brian Cloughley, Losing Hearts and Minds in Afghanistan: Let them Drink Coke, Counterpunch MAGAZINE, Sept. 16/17, 2006, available at <>. >
7. I have written in detail about the war on terror in an earlier article. see Dr. Saby Ghoshray, Untangling the Legal Paradigm of Indefinite Detention: security, Liberty and False Dichotomy in the Aftermath of 9/11, St. Thomas L. R. (forthcoming fall 2006).
8. Cloughley, supra note 6 (attributed in part to the charity Christian Aid).
9. Privatization of water services by the water corporations appears to be one of the most contentious issues of the upcoming years. This is because multinational corporations, like Coca-Cola, Suez-Lyonnaise, Vivendi Environment and the like are transforming natural resources into a profitable commodity. The Center for Public Integrity has documented the international presence of the major multinational water companies. see generally Center for Public Integrity, The Water Barons, available at http://www.icij.org/water/ db.aspx?sID=db (noting that while Vivendi Environment controls water operation for more than 8,000 water systems in over 130 countries, including some in the United States, Suez provides water to 115 million people in over 40 countries, and RWEAG, the third largest corporation, services over 70 million people worldwide). While privatization of water services is becoming a huge profit centers for those large multinational, the poor people in the developing countries-the farmers, the indigenous community, the women, and the urban poor-are becoming adversely affected. see, e.g., Stephen David, Whose Water Is It Anyway?, India Today, Dec. 19, 2005, at 36 (describing how privatization of water services and commodification of water in India is in sharp conflict with various international agreements that view access to water as a fundamental human right).
10. Privatization of water is becoming an exploitative maneuver by the water companies, and the resulting scarcity of water for the poor is bringing mis commodification of water in direct conflict with various United Nations covenants and international agreements espousing water as a fundamental human right. see generally Peter H. Gleick, The Human Right to Water, 1 Water Poucy 487 (1999); see also World Health Org., The Right to Water 3 (2003), available at http:// www.who.int/water-sanitation-health/rtwrev.pdf [hereinafter The Right to Water]; In this article, I argue that the basic fundamental right to water by the inhabitants of a community should supersede the rights to privatize water by multinational corporations. 11. In March 2000, the village level administrative body, the Panchayat in the Perumatty Village within the Palakkad district in the southern Indian State of Kerala, granted a license to Coca-Cola to set up its bottling plant at me village of Plachimada on a total area of 35 acres. Coca-Cola began extracting 500,000 liters of groundwater, and within two years, extensive complaints of acute scarcity of drinking water among the residents in surrounding area surfaced. Eventually, in May 2003, the Panchayat intervened and canceled Coca-Cola's license to continue the operation of the bottling company. see Perumatty Grama Panchayat v. State of Kerala, (2004) 1 K.L.T. 731 (2003). (decision of the High Court of Kerala at Emakulam, December 16, 2003).
12. Id. Panchayat passed a resolution on on July 4,2003, which rejected the renewal license for Coca-Cola. Upon receipt of this notice, Coca-Cola appealed and a second resolution denying renewal followed. The second Resolution on December 5, 2004, held:
The Panchayat is satisfied that the Hindustan Coca-Cola Beverages Pvt. Ltd. at Plachimada is doing excessive exploitation of water and as a result, the water sources in the wells and ponds in the nearby places have dried up, resulting in deterioration of quality of the limited war available, causing health/environmental problems and- acute drinking water scarcity. This has given rise to serious concern among the public. The problem of drinking water scarcity and health /environmental problems are continuing as a reality....
Id.; see also High Court Directs Coca-Cola to Stop Using Groundwater, The Hindu, Dec. 16,2003 available at http://www.in0 diaresource.org/news/2003/4884.html.
13. Panchayat is a system of local governance in India. These local assemblies often settle disputes between individuals and villages. see Panhayata Raj, Wikipedia, http://en.wikipedia.org/ wiki/Panchayat (last visited Apr. 27, 2007).
14. The state of Kerala is a small state on the southwest corner of India. It is approximately 38,000 square kilometers, with a population of around 39 billion. The High Court of Kerala was formalized on November 1, 1956 with its primary location in the city of Ernakulam. see High Court of Kerala, History, http:// highcourtofkerala.nic.in/(last visited Apr. 27, 2007).
15. The Judge ruled in favor of the Perumatty Grama Panchayat on the grounds that water is a public wealth, and its excessive extraction by a private actor cannot be permitted by the state, which is a public trustee of the special restricted natural resources to be shared by the community.
16. Hindustan Coca-Cola Beverages Pvt. Ltd. v. Perumatty Grama Panchayat, W.A 2125 of 2003, WA. 215 of 2004, W.A. 1962 of 2003, W.P. (C) 12600 of 2004, H.C. Ker., 7 Apr. 2005, available at http:// www.thesouthasian.org/archives/2006/pdf_docs/ HCJudgement_April05.pdf [hereinafter Hindustan Coca-Cola case].
17. The two panel members of the appellate bench challenged the High Court's non-renewal of the Coca-Cola license on several grounds. The appellate bench characterized the Panchayat's stand on Coca-Cola's extraction as "assumption" staring, "the basic issue is the assumption, which almost stands transformed to a conviction harbored by the Panchayat" see Hindustan Coca-Cola case, supra note 16, para. 26.
18. Unfortunately, the appellate bench focused on strict statutory interpretation instead of engaging in substantive legal reasoning, stating, "[w]e have to assume that a person has the right to extract water from his property unless it is prohibited by a statute. Extraction thereof cannot be illegal. We do not find justification for upholding the finding of the learned judge that extraction of groundwater is illegal." See Hindustan Coca-Cola case, supra note 16, at para 35.
19. The appellate bench of the Kerala High Court attaches basic tangible property rights, where a strict interpretation of delineated property rights gives rise to water rights in landowners. The court did not take into consideration various substantive issues, such as human rights to water and loss of livelihood and traditional way of life from unreasonable use by the landowners, nor did the court look into the possibility of environmental damage, such as destruction of water aquifers, in rendering its opinion. The court noted:
We cannot endorse the findings that the company has no legal right to extract this 'wealth'. If such restriction is to apply to a legal person, it may have to apply to a natural person as well. Abstract principles cannot be the basis for the Court to deny basic rights, unless they are curbed by valid legislation. . . . The Panchayat had no ownership about such private water source, in effect denying the proprietary rights of the occupier and the proposition of law laid down by the leaned Judge is too wide, for unqualified acceptance.
Hindustan Coca-Cola case supra note 16, para. 35.
20. The appellate bench of the Kerala High Court held that the High Court of Kerala's finding of fault against Coca-Cola was erroneous and that the opinion of the High Court that Coca-Cola should refrain from extracting water is not a workable proposition because it does not take into consideration the massive water needs of such a large corporation. The court noted:
There is basis in such submissions, as it exposes presence of rigid and unworkable propositions. We are convinced that as suggested by the Division Bench at the early phase of hearing, the workable solution was to get sufficient data from authentic sources and try to resolve the issues which a sense of proportion and balancing. A water based industry, with a huge investment has to receive water, to quench its thirst without inconveniencing others.
Hindustan Coca-Cola case, supra note 16, para. 40.
21. In rendering its verdict in favor of Coca-Cola's right to extract water for the operation of its bottling factory, the appellate bench observed that the Panchayat acted unjustly in its denial of rights to the company. The court held:
We, therefore, come to me conclusion that Uie Panchayat was not justified in resorting to steps. Whereby renewal of licens