Rachel's Precaution Reporter #54, September 6, 2006


[Rachel's introduction: A reader from India asks whether the Coca- Cola Company has violated the precautionary principle, and columnist Carolyn Raffensperger responds.]

To the editors:

Thank you for the very informative Rachel's Precaution Reporter which we have used to keep updated on the various campaigns internationally.

I am writing specifically in regards to the Coca-Cola company and its practices in India. We, the India Resource Center, work actively with communities in India to challenge the company's abusive practices in India. The Coca-Cola company is accused of

1. creating severe water shortages across India by significantly depleting groundwater

2. polluting the land and groundwater by discharging its toxic waste indiscriminately

3. selling products in India with high levels of pesticides

In a highly irresponsible act, the Coca-Cola company has located many of its bottling plants in drought-prone areas of India, and as a result, the already existing water crisis has been further exacerbated as a result of Coca-Cola's bottling operations.

The campaign to hold Coca-Cola accountable is very strong, and one of Coca-Cola's largest bottling plants in India has been shut down since March 2004 as a result. In the US, New York University has banned Coca-Cola and the University of Michigan has placed the company on probation -- until it cleans up its act.

The Coca-Cola company has recently signed on to the UN Global Compact, which I am sure you are aware of. One of the Principles of the Global Compact is that "Business should support a precautionary approach to environmental challenges."

We would like to understand from you if and how the Coca-Cola company may be in violation of the Precautionary Principle in India.

Thank you

Amit Srivastava Coordinator India Resource Center www.IndiaResource.org

Dear Mr. Srivastava,

Yes, Coca-Cola is in violation of the Global Compact, particularly the precautionary principle. The Global Compact is a U.N.-led international effort to engage business in supporting 10 universal labor and environmental principles. But it is voluntary. The U.N. lacks any enforcement mechanisms and so Coca-Cola is in violation of the social contract established between society and companies and it's in violation of the ecological contract all of us hold with nature.

But Coca-Cola is not breaking any enforceable precautionary law.

The environmental provisions in the Compact, including the precautionary principle, are derived from the Rio Declaration on Environment and Development, an international agreement drafted in 1992. While numerous countries have signed on to the Rio Declaration and other lofty international documents, until the year 2000, the precautionary principle was aspirational and not hard law. That has since changed with the passage of two international treaties and a law -- the Biosafety Protocol, the Stockholm Convention on Persistent Organic Pollutants (POPS treaty) and a new law enacted in 2003 by the City of San Francisco. The precautionary principle now guides major environmental efforts on toxic chemicals (POPS treaty), environmentally friendly purchasing (San Francisco) and genetically modified organisms (Biosafety Protocol).

But, these treaties and laws only bind governments, not corporations. While they will affect business, they still don't require Coca-Cola, or any other corporation to actually do anything. This provides a marvelous opportunity for India to lead the way and put teeth into the precautionary principle and actually hold corporations legally accountable.

Where might India (or one of its states like Kerala) start in putting the precautionary principle into law binding corporations?

A good beginning step would be to define the role of the government, not as balancing competing interests, but as serving as trustee of the commons -- particularly water -- for this and future generations. Government has not only a right, but a responsibility, to safeguard the essential necessities of life so that it can sustain life and health for the children of our grandchildren. The best way to fulfill that responsibility is to use the precautionary principle. We have some legal language from the Supreme Court of Hawaii that makes the case that trusteeship of the commons requires the precautionary principle.

Secondly, a government could legally define how they would apply the precautionary principle to the commons. One possibility might be to codify the Natural Step as a matter of law. The Natural Step argues that it is not sustainable when society (or a corporation) depletes or degrades a resource like water faster than the Earth can replenish it. Applying the precautionary principle to this ecological rule (of not depleting and/or degrading it faster than it can be replaced) means that if a corporation might deplete the water supply faster than it could be replenished, the activity would be prevented and all parties would seek better alternatives.

Finally, the state could appoint or elect a guardian for future generations that could veto corporate abuses of common resources. Some U.S. states have public intervenors or advocates that have power to go to court on behalf of children, the handicapped or natural resources. Expanding this power to fulfill our responsibility to future generations while meeting the needs of this generation, would go a long way to giving the precautionary principle the needed legal clout and bind corporations.

Until that happens, we can revoke our side of the social contract and refuse to buy products from companies that have violated their agreements with society to behave decently and treat the Earth as if they had to share it with the rest of us.

Of course Coca-Cola is emblematic of a larger structural problem -- the publicly-held corporation. Corporations were initially created as subordinate entities but over time they have become, in some sense, independent governing bodies. Many people recognize the importance of this problem, but still aren't sure what might be done about it. In the U.S., good work on corporate power is being done by the Program on Corporations, Law and Democracy (POCLAD), and by the Community Environmental Legal Defense Fund (CELDF), which operates an important Democracy School for citizens.

Perhaps you, or other readers of the Precaution Reporter, have additional ideas about how to make a precautionary approach legally binding?

Best wishes, Carolyn