A/HRC/15/31
Committee on Economic, Social and Cultural Rights points out that “States parties must
prevent [third parties] from compromising equal, affordable, and physical access to
sufficient, safe and acceptable water” (para. 24), which equally applies to sanitation.18 As
outlined below, involving non-State actors requires, inter alia, clearly defining the scope of
functions delegated to them, overseeing their activities through setting regulatory standards
and monitoring compliance.
17.
The work of the Special Representative of the Secretary-General on the issue of
human rights and transnational corporations and other business enterprises is especially
relevant to the subject of this report as it is concerned with States’ obligations and business
responsibilities. In his 2008 report to the Human Rights Council, the Special Representative
set out a three-part policy framework entitled “Protect, Respect and Remedy” (A/HRC/8/5).
It consists of the States’ obligation to protect against human rights abuses by third parties,
the responsibility of companies to respect human rights, and the need for access to effective
remedies and grievance mechanisms to address alleged human rights violations. The
Human Rights Council welcomed the framework by consensus in its resolution 8/7. The
Special Representative is now in the process of further operationalizing the framework. To
some extent, the work of the independent expert builds on the framework and is aimed at
contributing to its operationalization by applying it specifically to the provision of water
and sanitation services.
B.
State obligations
18.
The State cannot exempt itself from its human rights obligations by involving nonState actors in service provision. Irrespective of responsibilities of the latter, the State
remains the primary duty-bearer for the realization of human rights.
19.
Generally speaking, the human rights obligations of States can be classified as
obligations to respect, to protect and to fulfil. Obligations to respect require States to refrain
from interfering with existing access. Obligations to protect take into account the role of
third parties, requiring States to prevent such third parties from interfering with the
enjoyment of human rights by others. Finally, obligations to fulfil call on States to adopt
the necessary measures to enable and assist individuals to enjoy their human rights and to
ensure direct provision as a last resort, when individuals are, for reasons beyond their
control, unable to provide for themselves. States have to achieve the full realization of the
rights to water and sanitation progressively. They are required to devote the maximum
available resources and move towards it as expeditiously and effectively as possible, but do
not have to achieve the full realization immediately.
20.
States must realize their human rights obligations in a non-discriminatory manner.
They are obliged to eliminate both de jure and de facto discrimination on grounds of race,
colour, sex, age, language, religion, political or other opinion, national or social origin,
property, birth, physical or mental disability, health status, or any other civil, political,
social or other status including the social and economic situation.19 They are obliged to pay
priority attention to groups and individuals particularly vulnerable to exclusion and
discrimination. Depending on the circumstances, they may need to adopt positive measures
to redress existing discrimination.
18
19
8
Report of the independent expert on the issue of human rights obligations related to access to safe
drinking water and sanitation (A/HRC/12/24), para. 64.
See Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on nondiscrimination in economic, social and cultural rights.
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