A/HRC/36/45 3. Regulation by a separate regulatory body 36. In the past two decades, a general trend in many countries in terms of regulation has been the establishment of public entities that are expected to be independent from providers, governments and the direct administration of the State, designated as independent regulatory bodies. The need for autonomous regulatory bodies has been reinforced by the belief that policy, regulation and provision of services should preferably be separated to ensure maximum benefit from the expertise required and to provide transparency.15 37. The functions of these bodies include standard-setting, examining water and sanitation services for compliance with relevant standards, providing a forum for complaints by individuals, and setting or signing off on tariffs. When the exercise of these functions is guided by the human rights framework, this regulatory model can contribute significantly to the progressive realization of the human rights to water and sanitation. However, in the absence of a strong national policy and legal framework on the human rights to water and sanitation, these bodies also face challenges in realizing these rights. 38. The International Water Association’s Lisbon Charter underscores the importance of ensuring an adequate level of institutional, functional and financial independence of regulatory bodies.16 Some of the features that would characterize independent regulatory bodies include: (a) a stable mandate, which does not depend on either the electoral cycle or changes of government; (b) autonomy in exercising their regulatory functions; (c) the definitive nature of their decisions, which can only be challenged in the courts; and (d) substantial administrative autonomy in their human and budgetary resource management. 17 39. However, some argue that independence from the government may be both unrealistic and in some situations undesirable.18 In essence, regulatory bodies must ensure the implementation of public policies defined by the government for the regulated sectors. This means that in situations where water policy needs to be reconciled or balanced with social and public policy in order to pursue human rights standards (e.g. affordability) or comply with the government’s international human rights obligations, regulatory decisionmaking processes should encourage the meaningful participation of the relevant governmental sectors (see A/HRC/36/45/Add.1, para. 36). Governments should be able to legitimately influence both the process of regulatory decision-making and its outcomes in cases where regulation by itself is not sufficient to meet the standards of the human rights to water and sanitation. While the independence of regulatory bodies from governments should not be understated, particularly in countries where corruption is rampant, the question should not be considered in isolation from human rights considerations. 40. A growing number of regulatory bodies have been created in recent years. The Palestinian Water Sector Regulatory Council was established by Water Decree by Law No. 14 in 2014, and its mandate includes monitoring the performance of all service providers, approving water prices, issuing licences, setting qualitative standards and handling complaints. Similarly, in Portugal, Law No. 10/2014, establishing the Water and Waste Services Regulatory Authority, confers on the Authority monitoring and enforcement powers and the power to regulate, which apply to all service providers. This is also the case of Brazil, a federal State, which passed a National Water and Sanitation Act in 2007 that establishes guidelines for the creation of regulatory agencies at the municipal, intermunicipal or State level. 15 16 17 18 10 The Regulation of Water and Waste Services: An Integrated Approach (RITA-ERSAR), p. 42. Lisbon Charter, art. 7.4. The Regulation of Water and Waste Services: An Integrated Approach (RITA-ERSAR), p. 2. Tony Prosser, “Regulation and social solidarity”, Journal of Law and Society, vol. 33, No. 3 (2006), pp. 364-387.