A/HRC/36/45
on the general regulatory framework, the levels of institutional capacity and the types of
problems that must be addressed.
1.
Self-regulation
30.
In some countries, regulatory frameworks include the model of self-regulation,
whereby public service providers regulate their own activities, set tariffs and quality
standards and monitor their own performance. Many countries with public service
providers have not seen the necessity of creating a separate regulatory function for the
water sector. In El Salvador, the National Water Mains and Sewers Administration, the
main service provider in urban areas, sets its own quality of service standards, while the
Ministry of Health monitors the quality of drinking water and the Ministry of Economics
approves changes to water rates (see A/HRC/33/49/Add.1, para. 25). In Tajikistan, the
Ministry of Energy and Water Resources has the overall responsibility for guaranteeing the
national drinking water supply and coordinating relevant actors in the water sector (see
A/HRC/33/49/Add.2, para. 10). It is also responsible for the adoption and implementation
of State programmes for the development of drinking water supply systems, the
establishment and regulation of water tariffs and the provision of public information.
31.
Self-regulation raises significant human rights challenges in terms of guaranteeing
independent monitoring and providing reliable accountability mechanisms. Regulatory
principles such as impartiality, accountability, transparency and good governance can
potentially be compromised by self-regulation as there is no separation between policy,
regulation and service provision. Benchmarking and user consultation and participation also
seem to be less common. Self-regulation can also lead to a lack of uniformity in
performance, including in tariff-setting, with different service providers abiding by
different standards.
2.
Regulation by contract
32.
Regulatory frameworks may also be characterized by a broad spectrum of
contractual arrangements between governments which formally delegate service provision,
and third parties. In such cases, the instrument delegating service provision defines the
relationship between the public asset owner and the service provider and sets service
standards. In the case of State-owned companies, management will usually be delegated via
legislation, decrees or contracts, while public authorities will often enter into contracts with
private providers. Contracts may differ according to the ownership of assets, the
responsibility for capital investments, the allocation of risks, the responsibility for
operations and maintenance, and the typical contract duration. France is a country with a
long history of this type of regulation, established through private-sector participation
contracting with local government.
33.
A number of human rights challenges arise when regulating service provision by
contract, particularly when non-State actors are involved. Such challenges include
guaranteeing transparent and democratic decision-making, addressing power asymmetries
in the bidding and negotiation process, ensuring affordable services, avoiding
disconnections in cases of inability to pay, ensuring monitoring and accountability, and
addressing corruption. It is also important that contracts, which are normally valid for
decades, can be reviewed and adapted over time.
34.
Meaningful public participation and access to information are human rights
principles that often tend to be overlooked by States and service providers during the
process of tendering, bidding and contract negotiation. From a human rights perspective, it
is crucial that governments ensure that contractual arrangements include the necessary
human rights safeguards, and that overall they contribute to, rather than undermine, the
realization of the human rights to water and sanitation, without discrimination.
35.
Regulation by contract can be combined with supervision by regulatory actors. In
these cases, service standards and tariffs agreed upon by the parties to the contract have to
be approved by the regulatory actor. The intervention and the oversight of the contract by a
regulatory actor, if oriented by the human rights framework, can contribute to the
realization of the rights to water and sanitation.
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