A/HRC/15/31
must include adequate incentives, serious penalties for non-compliance, such as fines, and
the possibility of revocation of the contract.
4.
Particular challenges of informal small-scale providers
53.
Compared to the regulation of utilities, far less attention has been paid to the
regulation of informal small-scale providers. Operating unregulated, they often provide
poor quality services at exorbitant prices. Yet, many people would be far worse off without
their services. Any attempt to regulate the activities of such providers first requires an
overview of the sector and the political will to acknowledge their activities. Human rights
law does not prescribe the choice of policy and approach to small-scale providers, which is
rather left to the State. It can decide to aim for regulation, or to use incentives for the
provision of quality services at affordable prices, or to phase out small-scale providers in
the long term and replace them by formal provision. The best policy option will depend on
the circumstances and cannot be determined in the abstract. Any measures taken must
comply with human rights obligations. There has to be a clear strategy with the end goal of
providing universal access to services in line with human rights standards. At the same
time, States must ensure that the measures taken - for instance strict licensing requirements
- do not worsen the situation and leave people without access to services. In particular when
granting exclusivity to formal providers extending into areas that have previously been
served by small-scale providers, States have to ensure that the network actually constitutes
an affordable alternative for poor people and that they are not lacking service provision
until the formal provider is ready to fill the gap.
54.
Given the decentralized and often on-site nature of small-scale services provision,
distinct regulatory instruments are needed. For instance, many on-site sanitation solutions
require the emptying of septic tanks. To ensure that sludge is actually brought to treatment
plants and not dumped into the environment, payment for the service could be made only
upon arrival at the plants. It is unlikely that a central agency can adequately oversee the
activities by small-scale providers, but rather a different institutional set-up may be
required, for instance involving local governments.
5.
Significance of social policies
55.
There is an inherent tension between commercial viability and direct full cost
recovery on the one hand and providing affordable services to the poor on the other hand.
When utilities are not adequately and sustainably resourced, they cannot ensure operation
and maintenance, let alone invest in the network. Yet, direct full cost recovery would render
services unaffordable for many people. Regulatory oversight alone may not be sufficient to
achieve the rights to sanitation and water for all, and special safeguards and supplementary
social policies to ensure inclusiveness, such as safety nets and subsidies, may be
necessary.44 These may take various forms, whether providing support to people’s income
or adjusting tariffs to render services affordable. Moreover, while people will often be able
to pay recurring charges for services, a high one-off payment for the initial connection is
often beyond their capacity. Connection subsidies and public spending will often be
necessary to expand the network to low-income areas. Whatever measures are taken, they
must not disproportionately benefit the upper and middle classes already connected to the
network, but, crucially, have to be targeted to reach the unserved and underserved most in
need. Affordability studies carried out by the regulatory body or other States authorities can
be an important tool for taking decisions on how to target measures.
44
18
For a detailed overview of possible sanitation subsidies, see Water Supply and Sanitation
Collaborative Council, Public Funding for Sanitation: The Many Faces of Sanitation Subsidies
(Geneva, 2009).
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