A/HRC/36/45
21.
At a very minimum, State-owned companies have the same responsibilities as other
businesses and must comply with the national regulatory framework. When State-owned
companies act as arms of government or implementing agents of government policy, the
State must ensure policy coherence and guarantee that the activities of those companies
contribute to the realization of the human rights to water and sanitation.
22.
The instruments delegating service provision, including contracts, must reflect the
national regulatory framework and human rights standards. This means that these
instruments should include a clear definition of the human rights responsibilities of service
providers, coverage targets to eliminate inequalities in access, sufficient provision for
participation, access to information and mechanisms for accountability. While ensuring
this, non-State service providers are also expected to respect human rights. To that end,
they must exercise due diligence to become aware of and address any potential impact on
the realization of the human rights to water and sanitation, including by analysing the
proposed delegating instruments from a human rights perspective (see A/HRC/15/31, para.
38), and where appropriate by undertaking human rights impact assessments. The General
Assembly has recently called upon non-State actors, including business enterprises, to
comply with their responsibility to respect the human rights to water and sanitation,
including by cooperating with State investigations into allegations of abuses of these rights,
and by progressively engaging with States to detect and remedy such abuses (see General
Assembly resolution 70/169, para. 6).
23.
As part of their human rights responsibilities, service providers should establish
legitimate, accessible, predictable, equitable, rights-based and transparent grievance and
remedy mechanisms that allow individuals to bring alleged human rights abuses to their
attention (see A/HRC/8/5, paras. 82 and 92). This should be required by the regulatory
framework as it is part of exercising human rights due diligence, since accountability
mechanisms enable the service provider to become aware of its human rights impacts.
Equally important is the responsibility of service providers to provide regulatory actors
with the necessary information regarding service provision, especially information on their
performance.8
III. Regulation in water and sanitation services
A.
Role of regulation
24.
The implementation of the human rights to water and sanitation depends heavily on
national legal and regulatory frameworks. While constitutional recognition of these rights
shows a strong national commitment to their realization, and facilitates their inclusion in
domestic laws, it does not constitute a conditio sine qua non for their inclusion in national
legal frameworks. Kenya, for example, underwent a process of legal and regulatory reform
before enshrining these rights in its Constitution. Laws give voice to national policies, and
aspire to achieving universal realization of the rights, while rules and regulations set
performance standards and determine how services should be provided to the population, as
they encapsulate the technical and scientific requirements needed to give meaningful
content to the general terms contained in laws. The fact that the provision of water and
sanitation services must be adequate for human dignity, life and health, in accordance with
the International Covenant on Economic, Social and Cultural Rights, places concrete
human rights obligations on national regulatory frameworks.
25.
Regardless of the regulatory model chosen, currently most water and sanitation
regulatory frameworks typically incorporate aspects of economic regulation (asset
management planning and tariff-setting), of quality of service regulation and of drinking
water quality regulation. Some may also include aspects of environmental regulation,
mainly water abstraction and wastewater discharges, of user interface regulation or of legal
and contractual regulation. The fact that different forms of regulation have been adopted for
8
Lisbon Charter, art. 5.
7
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