A/HRC/36/45
progressive realization, but also by the immediate obligation of non-discrimination and the
obligation to take steps towards the full realization of these rights. The Committee on
Economic, Social and Cultural Rights underscores that the enjoyment of the human rights
to water and sanitation without discrimination of any kind can be compromised not only
through direct action or omission by States, but also through State institutions or agencies
at the national and local levels, which includes regulatory actors. 6 For regulatory actors to
meet their immediate obligations of equality and non-discrimination, they must, when
regulating tariffs, consider those who do not have the economic ability to pay for services,
and implement mechanisms for their protection; they must also ensure that service
providers deliver services to poorer neighbourhoods and informal settlements.
17.
While the existence of national policies and strategies supported by the human rights
to water and sanitation contributes greatly to the creation of an enabling regulatory
environment, regulatory actors cannot simply dismiss their human rights obligations on the
grounds that national policies are inadequate. Being at the interface between policymakers,
service providers and users, and as guarantors of accountability, regulatory actors are best
placed to assess whether water and sanitation standards are being progressively met or are
being overlooked. They have also the primary role in identifying retrogressions in the
realization of the rights and in requiring providers to address the root causes of these
violations. As such, their obligation to monitor service providers’ compliance with the
standards of the human rights to water and sanitation and to identify what is compromising
the realization of these rights goes far beyond mere policing. It involves, for example,
supporting and influencing investment decisions, and policy and legislative changes in line
with the human rights framework.
18.
The International Water Association’s Lisbon Charter, on public policy and
regulation for drinking water supply, sanitation and wastewater management services,
adopted by 85 Governments in 2015, asserts that the actions of regulatory actors “must be
based on the principles of competence, professionalism, impartiality, accountability and
transparency” (art. 4). From a human rights perspective, there are additional key principles
that must guide regulatory intervention in all circumstances: the principles of equality and
non-discrimination; active, free and meaningful participation; access to information; and
sustainability. These overarching principles should not only guide national policies on
water and sanitation but also be embedded in legal and regulatory frameworks binding all
water and sanitation stakeholders, including regulatory actors.
19.
Access to information is crucial to the work of regulatory actors, who have an
obligation to collect, analyse and disseminate accurate and disaggregated information on
the implementation of the rights to water and sanitation by the service providers that they
regulate. Access to information is essential for enabling meaningful participation. In this
context, it is important to highlight that regulatory actors’ obligation to ensure meaningful
public participation in key regulatory decisions, including tariff-setting, is not in any way
incompatible with their required independence.
C.
Responsibilities of service providers
20.
All service providers, whether public, State-owned or private, must comply with the
State’s legal and regulatory framework. In cases where the State is the service provider, at
central level or often through its municipalities, it must act in compliance with the laws and
regulations of the State and in line with its international human rights obligations. Where
service provision is formally delegated by the State to non-State actors, the State cannot
exempt itself from its human rights obligations and retains the obligation to regulate and
monitor their activities. Non-State service providers (formal and informal), on the other
hand, have human rights responsibilities, which include complying with the national
regulatory framework and respecting the human rights to water and sanitation. 7
6
7
6
See Committee on Economic, Social and Cultural Rights general comment No. 20, para. 14.
See the Guiding Principles on Business and Human Rights.
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