A/HRC/36/45 II. Human rights obligations and responsibilities A. Obligations of States 6. The State is the primary duty bearer for the realization of the human rights to water and sanitation. While the International Covenant on Economic, Social and Cultural Rights, in article 2, provides for progressive realization and acknowledges the constraints due to limits of available resources, it also imposes on States various obligations of immediate effect. In the context of service regulation, the obligations under article 2 include: (a) the obligation to take deliberate, concrete and targeted steps to put in place a regulatory framework for water and sanitation service provision that is aligned with human rights; and (b) the obligation to ensure that the rules and regulations set and the activities of those exercising regulatory functions contribute to the enjoyment of the human rights to water and sanitation without discrimination of any kind. For example, the exercise of the human rights to water and sanitation should not be conditional on, or determined by, a person’s place of residence (e.g. whether a person lives or is registered in an urban or a rural area, or in a formal or an informal settlement).2 The State’s failure to take the necessary regulatory measures in order to adequately prevent and remedy discriminatory conduct either by service providers or by regulatory actors constitutes a violation of the State’s obligations under the International Covenant on Economic, Social and Cultural Rights. 7. The human rights obligations of States are classified as obligations to respect, to protect and to fulfil. The obligation to respect requires that States’ regulatory frameworks refrain from interfering directly or indirectly with people’s existing access to water and sanitation. To that end, States must ensure that their regulatory framework prohibits disconnections from water and sanitation services due to users’ inability to pay, as it is a retrogressive measure and violates the human rights to water and sanitation, 3 must ensure, when extending piped networks to informal settlements, that these services are affordable so as not to interfere with people’s access, and must avoid discriminatory or unaffordable increases in the price of water and sanitation services due to inadequate regulation. Furthermore, preparedness for situations of armed conflict, emergency situations, natural disasters and effects of climate change requires that States embrace in their regulatory frameworks the obligations relevant to water and sanitation provision pursuant to international humanitarian law. 8. The obligation to protect requires States to prevent third parties from interfering in any way with the enjoyment of the human rights to water and sanitation by establishing an effective regulatory system, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance. 4 In cases in which the provision of water and sanitation services is delegated to third parties, the State has the obligation to regulate the activities of those institutions to ensure that all aspects of human rights are guaranteed (see A/HRC/33/49/Add.2). Establishing an effective regulatory framework comprises the obligations to set service standards in line with the normative content of the human rights to water and sanitation, and to create public authorities to carry out regulatory functions independently. 9. Failures to protect the rights to water and sanitation in the context of service provision usually stem from a lack of regulation or lack of enforcement of such regulation. They may also be the result of negotiating service contracts or performance agreements that fail to protect users’ rights. When the provision of services is regulated by contract, States must ensure that the relevant human rights standards and principles are addressed in the 2 3 4 4 See Committee on Economic, Social and Cultural Rights general comment No. 20 (2009) on nondiscrimination in economic, social and cultural rights, para. 34. See Committee on Economic, Social and Cultural Rights general comment No. 15 (2003) on the right to water, para. 44 (a). Ibid., para. 24.