A/HRC/15/31
through social policies, that makes them affordable to all people, including those living in
extreme poverty.
48.
Linked to the question of affordability of services is the issue of disconnections.
When water disconnections take place despite people’s inability to pay, individuals must
still have at least access to minimum essential levels of water.42
2.
Complying with human rights standards in the operation of services
49.
While it is the obligation of the State to put into place the necessary regulations,
providers also have responsibilities in the operation of services. As outlined above, they
must exercise due diligence to become aware of, prevent and address adverse impacts on
human rights. To meet this responsibility, service providers should take certain measures,
such as ensuring that the water they provide is of safe quality, ensuring the regularity of
supply, not discriminating in their operations, adopting fair procedures in cases of
disconnections due to non-payment and refraining from disconnections when people are
unable to pay and the disconnection would leave them without access to minimum essential
levels of water.
50.
However, the overall policy framework governing these issues is within the purview
of the State. Often, these decisions apply to a broader context than the area of operation of
the provider in question. And most importantly, service providers lack the legitimacy to
take such decisions. Yet, service providers should consider the human rights implications of
different policy decisions, in particular, they should be aware of adverse implications of
their activities. They can be expected to engage with the State authorities to ensure they are
not indirectly contributing to human rights abuses. For instance, while non-State service
providers do not determine tariff structures unilaterally, they can be involved and make
suggestions on how to ensure that services are affordable, also to the poorest. Moreover,
they can and should offer flexible payment schemes adapted to the needs of people living in
poverty, such as phased connection charges, payment in instalments and grace periods.
3.
Institutional and regulatory capacity
51.
Effective regulation depends on the capacity to carry out regulatory functions.
Regulation must be independent and shielded from political interference and capture by
specific groups or politicians. A transparent and comprehensive regulatory framework helps
to reduce the potential for abuse. Regulatory and institutional models may differ: some
countries have independent regulatory agencies at the national level, while others largely
regulate private sector participation by contract. There is no one-size-fits-all solution, but
regulation has to be approached in a flexible manner and be adapted to local circumstances,
needs and challenges such as the degree of decentralization. The essential point is that
institutions must be in a position to carry out regulatory functions independently.
52.
Even the best contracts and regulatory frameworks will not serve any purpose if they
are not monitored and enforced. Monitoring compliance with the established standards is
therefore essential. Benchmarking – against the best performing company, a model
company, across different regions, or comparable cities – might be a suitable instrument to
assess whether standards are met.43 It is critical that Governments have the commitment and
the capacity for enforcement. The regulator must be endowed with the power to enforce
existing regulations and the contractual agreements. Mechanisms for contract enforcement
42
43
See for example section 61(1A) of the Water Industry Act of the United Kingdom of Great Britain
and Northern Ireland, which prohibits disconnections of water supply due to non-payment of charges.
OECD, Private Sector Participation (see footnote 8 above), p. 51.
17
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