A/HRC/15/31
21.
When non-State actors are involved in service provision, there is a shift to a stronger
focus on the obligation of the State to protect. At the same time, the obligation to fulfil
retains its significance with the aim of creating an enabling environment. States have a duty
to regulate and monitor providers that they involve in service delivery. Moreover, they may
need to adopt supplementary measures depending on the circumstances, for instance to
ensure the affordability of services. A comprehensive approach is needed: non-State service
providers can be involved, but the State has the obligation to develop an overall (short,
medium and long-term) strategy on how to fully realize the rights to water and sanitation.
When the State does not directly provide services, its role nevertheless remains obligatory
and critical.
C.
Responsibilities of non-State service providers: rationale, basis and
scope
22.
Parallel to the obligation of the State to protect, it is undisputed that service
providers must comply with the laws and regulations of the State in terms of a general legal
obligation. Yet, while the activities of non-State actors can have an enormous impact on the
realization of human rights, they are not addressed directly within the traditional human
rights legal framework concerned with the relationship between States and individuals. This
issue of direct human rights responsibilities of non-State providers will now be considered.
23.
The basic expectation that Society has of business enterprises is that they will
respect human rights (A/HRC/8/5, para. 9), and businesses themselves acknowledge this
responsibility.20 This is affirmed through global voluntary commitments such as the United
Nations Global Compact21 and various multi-stakeholder initiatives in different sectors.
These commitments are reinforced through soft law instruments22 such as the Guidelines
for Multinational Enterprises of the Organization for Economic Cooperation and
Development23 and the Tripartite Declaration of Principles Concerning Multinational
Enterprises of the International Labour Organization (para. 8).These do not create legally
binding obligations, but “[derive their] normative force through recognition of social
expectations by States and other key actors” (A/HRC/4/35, para. 45). The “Protect, Respect
and Remedy” framework has confirmed these commitments, and the Human Rights
Council, in its resolution 8/7, has specifically emphasized that business enterprises have a
responsibility to respect human rights. While such an endorsement does not establish direct
human rights obligations in a strictly legal sense, it shows a strong political commitment
and highlights that this is what States expect from business enterprises in relation to human
rights.
24.
To some extent, the debate has focused on highly visible transnational corporations
against the background of globalization and gaps in accountability. Yet, it seems just as
relevant in the context of medium-sized national companies and small-scale service
providers that often operate unregulated. Their activities can have a significant impact on
20
21
22
23
AquaFed, the International Federation of Private Water Operators, explicitly supports the human
rights to water and sanitation.
Global Compact, Principles 1 and 2. The CEO Water Mandate of the Global Compact, as an initiative
of specific relevance to the water sector focusing on industrial water use, does not yet explicitly refer
to human rights, although discussions about human rights have been included in its meetings.
For a comprehensive mapping of international standards and practices, see the 2007 report of the
Special Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises (A/HRC/4/35).
OECD, “The OECD Guidelines for Multinational Enterprises: text, commentary and clarifications”
(31 October 2001), p. 11.
9
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