A/HRC/36/45
contract, but also that State obligations are transferred, as appropriate, to the service
providers.5
10.
Violations of the obligation to protect may occur when States fail to effectively
regulate and control service providers in relation to safety, quantity or disconnections; fail
to regulate pricing to ensure that services are affordable for everyone; fail to prevent
discrimination by non-State actors; do not ensure that service providers extend services to
marginalized households or communities; or fail to ensure that monitoring and complaints
procedures are in place (see A/HRC/27/55, para. 27).
11.
The obligation to fulfil has three components: the obligation to facilitate, the
obligation to promote and the obligation to provide. The obligation to facilitate requires
States to take positive regulatory measures to create an enabling environment for service
providers to respect the human rights to water and sanitation as well as to contribute
towards the full realization of these rights. Facilitating measures include not only according
recognition of these rights within national policies and legal frameworks and adopting
national strategies and plans of actions to realize them, but also setting service standards for
service providers to comply with, in line with the normative content of the human rights to
water and sanitation, monitoring service providers’ compliance with the established
standards, and exercising regulatory functions, directly or through a separate body. For
example, where, due to a lack of regulation, access to water and sanitation facilities is either
not available or inadequate in public buildings, such as schools, prisons or hospitals, or
where people living in informal settlements are left with no option but to resort to
unregulated informal services, the State is in breach of its obligation to facilitate.
12.
The obligation to promote requires States to provide information and guidance for
service providers and the population on how to comply with the standards, norms and
regulations set. This obligation also entails informing and training regulatory actors on the
practical implications of the human rights to water and sanitation in their area of work.
13.
The obligation to provide obliges States to fulfil the rights to water and sanitation
when individuals are unable, for reasons beyond their control, to realize these rights
themselves by the means at their disposal. In this respect, it is crucial that the State sets
specific regulations for the provision of services, inter alia, to homeless people, to poor
nomadic communities, and to victims of situations of armed conflict, emergencies, natural
disasters or climate change effects.
14.
Violations of the obligation to fulfil include the State’s failure to take steps to
establish a regulatory framework in line with human rights standards, and the failure to
ensure, through its regulatory framework, that the minimum essential level of water and
sanitation services is enjoyed by everyone.
B.
Obligations of regulatory actors
15.
The human rights to water and sanitation are binding on the State as a whole. All
public or governmental authorities, or separate State bodies exercising regulatory functions
at national, regional or local levels, have the responsibility to realize the State’s human
rights obligations. To that end, regulatory actors must ensure that their policies, procedures
and activities are compliant with the State’s international human rights obligations in
relation to the rights to water and sanitation. Their obligations also include ensuring human
rights compliance by the municipalities and other entities that they regulate (see
A/HRC/36/45/Add.1, para. 31).
16.
In their key areas of action, which include standard-setting, monitoring and ensuring
accountability for service provision, regulatory actors are bound by the principle of
5
See a checklist for government authorities of the human rights to water and sanitation issues that need
to be addressed in negotiations over any contract, concession or licensing document, from the
government perspective, in Realising the Human Rights to Water and Sanitation: A Handbook by the
UN Special Rapporteur (booklet 8: checklists), available from
http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/Handbook.aspx.
5
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