A/HRC/42/47
31.
Where the operation of water and sanitation services is delegated to a private actor
by the State, it is commonly achieved through a contract that may or may not include
provision for water and sanitation in public spaces. Since few contracts include this
provision, private providers are at liberty to refuse to facilitate such services. Even when
private providers are obliged to provide services in public spaces, the standards with which
they must comply may also be unclear, because the terms of their contracts may not always
be publicly disclosed.19 Equally, the fragmentation of responsibility through privatization
generates significant concerns, as human rights provisions do not directly bind them and
they are often under no direct legal duty to abide by them, unless they are required to do so
under the regulatory framework of the State in question.
32.
Secondly, in order to comply with the principle of accountability, water and
sanitation providers must be answerable to the beneficiaries of their services and be
required to provide explanations and reasoned justifications for their actions, inactions and
decisions to the people affected by them, as well as the public at large (A/73/162, para. 34).
This dimension of accountability is commonly hindered by a failure of those in control of
public spaces to provide mechanisms to allow people to complain about breaches of their
human rights to water or sanitation, or when they only do so in exclusionary and
inaccessible ways. In Sacramento, United States of America, no dedicated mechanisms
were available to allow homeless people to challenge the decision taken by the city
authorities to shut public toilets so as to force them to leave the city, with the issue instead
having to be raised by the previous Special Rapporteur and local NGOs.20 In New York
City, although a procedure is in place to allow people to raise complaints about damaged or
dirty automatic public toilets or to request the placement of a new public toilet, it is only
accessible online, which is likely to exclude people experiencing extreme poverty and
homelessness from the accountability process.
33.
In other instances, independent regulators and ombudspersons covering water and
sanitation services rarely have their mandates extended to cover public space provision,
thus placing these services in a grey area in terms of answerability. Even where complaints
have been raised with ombudspersons in this matter, the lack of specific national standards
leaves these claims to be addressed though breaches of other standards, such as those
governing equality, rather than those based upon the normative content of the human rights
to water and sanitation. In the United Kingdom of Great Britain and Northern Ireland, a
complaint was raised with the Local Government and Social Care Ombudsman regarding a
city council charging fees for the use of public toilets, but not for urinals, meaning women
had to pay, while men did not. The matter was decided in favour of the complainant;
however, the decision was based on the practice in question breaching national gender
discrimination legislation, rather than on specific standards for water and sanitation in
public spaces.
34.
Thirdly, States must have the ability to ensure compliance with standards through
enforceability, a notion which comprises the establishment of bodies capable of overseeing
compliance, as well as the provision of forums in which people may bring challenges
regarding the decisions or inactions of the actor concerned and which are capable of
satisfying claimants’ right to an effective remedy (A/73/162, para. 59). Without the
establishment of an adequate accountability framework, claims to ensure rights are
respected, protected and fulfilled in this context become significantly harder, if not
impossible, to make effectively. Consequently, the rights to water and sanitation in public
spaces may be breached with impunity and those rights will go unfulfilled. Wellfunctioning systems of accountability must explicitly recognize that the rights to water and
sanitation apply in public spaces and include implementation mechanisms to assist people
to claim those rights and make complaints when they are breached.
19
20
See submission from Mozambique.
See National Law Center on Homelessness and Poverty, “Human rights to human reality. A 10-step
guide to strategic human rights advocacy” (2014).
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