A/HRC/36/45
85.
When administrative or national quasi-judicial mechanisms do not exist or are not
able to successfully resolve a dispute, the right to an effective remedy requires that people
whose rights to water and sanitation have been affected be able to turn to a court. A right of
judicial review as a last resort is sometimes indispensable. In this context, it is critical that
judicial systems uphold the justiciability of the human rights to water and sanitation in line
with international human rights law.
86.
Accountability must be ensured not only in relation to service providers but also in
relation to regulatory bodies’ decisions and activities. The International Water
Association’s Lisbon Charter emphasizes that regulatory frameworks should establish the
necessary mechanisms to ensure accountability and public scrutiny of regulatory bodies. 40
Individuals should have the right to judicially challenge a regulatory body’s decision or
regulation that interferes with the enjoyment of their human rights to water and sanitation.
The Colombian water and sanitation regulatory commission issued a number of regulations
obliging service providers to disconnect water services when there is no payment during a
three-month period. However, cases brought before the Constitutional Court by low-income
families were ruled in the families’ favour, as they were being deprived of a “minimum
essential level of water” due to their inability to pay.41
V. Conclusions and recommendations
87.
Regulatory frameworks are essential for the implementation of the human
rights to water and sanitation and must support the State’s obligations with regard to
these rights. International human rights law does not call for a particular choice of
regulatory framework. What is essential from a human rights perspective is that those
carrying out regulatory functions be immune to pressures from any illegitimate
interests and that the main objectives of regulation be aligned with the water and
sanitation human rights standards and principles. Regulation plays a key role in
monitoring service providers’ compliance with the normative content of the human
rights to water and sanitation and in ensuring accountability. Identifying and avoiding
violations of these rights and retrogressions in their progressive realization is also key
for the regulation of water and sanitation services. As public bodies, regulatory actors
are bound by States’ international human rights obligations, and their functions
should go beyond mere policing and include supporting and influencing policy
changes in line with the human rights framework.
88.
The Special Rapporteur considers
regarding the concept of independence
involvement of governmental sectors in
making should be safeguarded when it
standards are met.
89.
that a more nuanced approach is needed
of regulatory bodies. In particular, the
specific situations of regulatory decisionis relevant to ensure that human rights
In line with the above, the Special Rapporteur recommends that States:
(a)
Adopt water and sanitation policies and strategies incorporating the
human rights to water and sanitation, and take deliberate, concrete and targeted steps
to establish a regulatory framework informed by these rights and regulatory bodies
operating in an impartial, transparent and rights-based manner;
(b)
Clearly define necessary procedures and measures in the regulatory
framework to meet the State’s obligations to respect, protect and fulfil the human
rights to water and sanitation;
(c)
Ensure that the mission, mandate and objectives of regulatory actors
incorporate the principle of progressive realization of the human rights to water and
sanitation without discrimination of any kind;
40
41
Lisbon Charter, art. 7.6.
See www.corteconstitucional.gov.co/relatoria/2009/T-546-09.htm and
www.corteconstitucional.gov.co/relatoria/2012/T-273-12.htm.
19
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