36/45 Report of the Special Rapporteur on the human rights to safe drinking water and sanitation
Document Type: Final Report
Date: 2017 Jul
Session: 36th Regular Session (2017 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-12215(E)
Human Rights Council Thirty-sixth session
11-29 September 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the human rights to safe drinking water and sanitation
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the human rights to safe drinking water and sanitation, prepared
pursuant to Council resolutions 27/7 of 2014 and 33/10 of 2016. The focus of the report is
service regulation and its role in the progressive realization of the human rights to water
and sanitation. The Special Rapporteur begins the report by outlining the human rights
obligations of States, regulatory actors and service providers in the context of service
regulation. He provides an overview of the role of regulation in water and sanitation
services, identifies different types of regulatory frameworks and discusses how they relate
to the human rights standards. He discusses the core functions of regulatory actors. Finally,
he presents recommendations to States and regulatory actors regarding those issues.
United Nations A/HRC/36/45
Report of the Special Rapporteur on the human rights to safe drinking water and sanitation
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Human rights obligations and responsibilities .............................................................................. 4
A. Obligations of States ............................................................................................................. 4
B. Obligations of regulatory actors............................................................................................ 5
C. Responsibilities of service providers .................................................................................... 6
III. Regulation in water and sanitation services .................................................................................. 7
A. Role of regulation ................................................................................................................. 7
B. Types of regulatory frameworks ........................................................................................... 8
1. Self-regulation .............................................................................................................. 9
2. Regulation by contract.................................................................................................. 9
3. Regulation by a separate regulatory body .................................................................... 10
IV. Core functions of regulatory actors ............................................................................................... 11
A. Setting standards ................................................................................................................... 11
1. Availability ................................................................................................................... 11
2. Accessibility ................................................................................................................. 12
3. Quality and safety ......................................................................................................... 12
4. Affordability ................................................................................................................. 13
5. Acceptability, privacy and dignity ............................................................................... 13
6. Participation and access to information ........................................................................ 14
7. Equality and non-discrimination .................................................................................. 14
8. Sustainability ................................................................................................................ 14
9. Accountability .............................................................................................................. 15
B. Monitoring implementation .................................................................................................. 15
1. Formal service providers .............................................................................................. 15
2. Informal service providers ............................................................................................ 16
3. Regulatory bodies ......................................................................................................... 18
C. Ensuring accountability ........................................................................................................ 18
V. Conclusions and recommendations ............................................................................................... 19
I. Introduction
1. Pursuant to Human Rights Council resolutions 27/7 of 2014 and 33/10 of 2016, the
Special Rapporteur on the human rights to safe drinking water and sanitation, Léo Heller,
was mandated to work on identifying challenges and obstacles to the full realization of
those rights, as well as protection gaps, good practices and enabling factors. The subject of
the present report is the regulation of water and sanitation services in the context of
realization of human rights and the report aims to discuss the essential role that regulatory
frameworks can play in the implementation of these human rights at the national level. In
this respect, it outlines the legal obligations and responsibilities of States, regulatory actors
and service providers in progressively realizing the human rights to safe drinking water and
sanitation through regulatory frameworks.
2. As part of the consultation process, the Special Rapporteur invited States and non-
State actors to contribute their views and perspectives in writing, through a questionnaire. A
total of 43 submissions were received.1 Eighteen submissions were received from States,
and 25 submissions were received from non-State actors including civil society
organizations, private service providers, academia and international organizations.
Furthermore, in order to collect the views of other stakeholders, the Special Rapporteur
convened an expert consultation which was held on 22 and 23 May 2017 in Rio de Janeiro,
Brazil.
3. The incorporation of the human rights to water and sanitation into national legal
frameworks can be done at different levels and using different instruments, including the
constitution, legislation, policies and regulations. States have an immediate and legally
binding obligation to take deliberate, concrete and targeted steps to the maximum of their
available resources to achieve progressively the full realization of these human rights (see
art. 2 of the International Covenant on Economic, Social and Cultural Rights). This
includes the obligation to adopt legislative measures, as explicitly stipulated in the
Covenant, and the obligation to take steps to establish regulatory frameworks informed by
the standards and principles that underpin those rights.
4. When the terms “regulatory framework” or “regulation” (in general) are used in the
report, they refer to secondary legislation such as norms, rules or standards establishing
how services should be provided in a given context and the institutions responsible for
monitoring compliance with these norms and standards. The terms “regulatory body”,
“regulatory authority” or “regulator” refer to a separate body to which the State delegates
regulatory functions. These bodies are often responsible for setting standards and applying
and enforcing them. The term “regulatory actors” is used in a broad sense, and includes
government institutions that exercise regulatory functions (i.e. a department within a
ministry) and separate bodies created by the State to carry out regulatory functions.
5. The number of States with a regulatory framework for water and sanitation services
is increasing and so is the contingent of regulatory actors. However, there is no universal
regulatory model. Regulation should be adapted to local circumstances, needs and
challenges. International human rights law does not prescribe 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 human rights to drinking
water and sanitation.
1 See www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/ServiceRegulation.aspx.
II. Human rights obligations and responsibilities
A. Obligations of States
6. The State is the primary duty bearer for the realization of the human rights to water
and sanitation. While the International Covenant on Economic, Social and Cultural Rights,
in article 2, provides for progressive realization and acknowledges the constraints due to
limits of available resources, it also imposes on States various obligations of immediate
effect. In the context of service regulation, the obligations under article 2 include: (a) the
obligation to take deliberate, concrete and targeted steps to put in place a regulatory
framework for water and sanitation service provision that is aligned with human rights; and
(b) the obligation to ensure that the rules and regulations set and the activities of those
exercising regulatory functions contribute to the enjoyment of the human rights to water
and sanitation without discrimination of any kind. For example, the exercise of the human
rights to water and sanitation should not be conditional on, or determined by, a person’s
place of residence (e.g. whether a person lives or is registered in an urban or a rural area, or
in a formal or an informal settlement).2 The State’s failure to take the necessary regulatory
measures in order to adequately prevent and remedy discriminatory conduct either by
service providers or by regulatory actors constitutes a violation of the State’s obligations
under the International Covenant on Economic, Social and Cultural Rights.
7. The human rights obligations of States are classified as obligations to respect, to
protect and to fulfil. The obligation to respect requires that States’ regulatory frameworks
refrain from interfering directly or indirectly with people’s existing access to water and
sanitation. To that end, States must ensure that their regulatory framework prohibits
disconnections from water and sanitation services due to users’ inability to pay, as it is a
retrogressive measure and violates the human rights to water and sanitation,3 must ensure,
when extending piped networks to informal settlements, that these services are affordable
so as not to interfere with people’s access, and must avoid discriminatory or unaffordable
increases in the price of water and sanitation services due to inadequate regulation.
Furthermore, preparedness for situations of armed conflict, emergency situations, natural
disasters and effects of climate change requires that States embrace in their regulatory
frameworks the obligations relevant to water and sanitation provision pursuant to
international humanitarian law.
8. The obligation to protect requires States to prevent third parties from interfering in
any way with the enjoyment of the human rights to water and sanitation by establishing an
effective regulatory system, which includes independent monitoring, genuine public
participation and imposition of penalties for non-compliance. 4 In cases in which the
provision of water and sanitation services is delegated to third parties, the State has the
obligation to regulate the activities of those institutions to ensure that all aspects of human
rights are guaranteed (see A/HRC/33/49/Add.2). Establishing an effective regulatory
framework comprises the obligations to set service standards in line with the normative
content of the human rights to water and sanitation, and to create public authorities to carry
out regulatory functions independently.
9. Failures to protect the rights to water and sanitation in the context of service
provision usually stem from a lack of regulation or lack of enforcement of such regulation.
They may also be the result of negotiating service contracts or performance agreements that
fail to protect users’ rights. When the provision of services is regulated by contract, States
must ensure that the relevant human rights standards and principles are addressed in the
2 See Committee on Economic, Social and Cultural Rights general comment No. 20 (2009) on non-
discrimination in economic, social and cultural rights, para. 34.
3 See Committee on Economic, Social and Cultural Rights general comment No. 15 (2003) on the right
to water, para. 44 (a).
4 Ibid., para. 24.
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.
progressive realization, but also by the immediate obligation of non-discrimination and the
obligation to take steps towards the full realization of these rights. The Committee on
Economic, Social and Cultural Rights underscores that the enjoyment of the human rights
to water and sanitation without discrimination of any kind can be compromised not only
through direct action or omission by States, but also through State institutions or agencies
at the national and local levels, which includes regulatory actors.6 For regulatory actors to
meet their immediate obligations of equality and non-discrimination, they must, when
regulating tariffs, consider those who do not have the economic ability to pay for services,
and implement mechanisms for their protection; they must also ensure that service
providers deliver services to poorer neighbourhoods and informal settlements.
17. While the existence of national policies and strategies supported by the human rights
to water and sanitation contributes greatly to the creation of an enabling regulatory
environment, regulatory actors cannot simply dismiss their human rights obligations on the
grounds that national policies are inadequate. Being at the interface between policymakers,
service providers and users, and as guarantors of accountability, regulatory actors are best
placed to assess whether water and sanitation standards are being progressively met or are
being overlooked. They have also the primary role in identifying retrogressions in the
realization of the rights and in requiring providers to address the root causes of these
violations. As such, their obligation to monitor service providers’ compliance with the
standards of the human rights to water and sanitation and to identify what is compromising
the realization of these rights goes far beyond mere policing. It involves, for example,
supporting and influencing investment decisions, and policy and legislative changes in line
with the human rights framework.
18. The International Water Association’s Lisbon Charter, on public policy and
regulation for drinking water supply, sanitation and wastewater management services,
adopted by 85 Governments in 2015, asserts that the actions of regulatory actors “must be
based on the principles of competence, professionalism, impartiality, accountability and
transparency” (art. 4). From a human rights perspective, there are additional key principles
that must guide regulatory intervention in all circumstances: the principles of equality and
non-discrimination; active, free and meaningful participation; access to information; and
sustainability. These overarching principles should not only guide national policies on
water and sanitation but also be embedded in legal and regulatory frameworks binding all
water and sanitation stakeholders, including regulatory actors.
19. Access to information is crucial to the work of regulatory actors, who have an
obligation to collect, analyse and disseminate accurate and disaggregated information on
the implementation of the rights to water and sanitation by the service providers that they
regulate. Access to information is essential for enabling meaningful participation. In this
context, it is important to highlight that regulatory actors’ obligation to ensure meaningful
public participation in key regulatory decisions, including tariff-setting, is not in any way
incompatible with their required independence.
C. Responsibilities of service providers
20. All service providers, whether public, State-owned or private, must comply with the
State’s legal and regulatory framework. In cases where the State is the service provider, at
central level or often through its municipalities, it must act in compliance with the laws and
regulations of the State and in line with its international human rights obligations. Where
service provision is formally delegated by the State to non-State actors, the State cannot
exempt itself from its human rights obligations and retains the obligation to regulate and
monitor their activities. Non-State service providers (formal and informal), on the other
hand, have human rights responsibilities, which include complying with the national
regulatory framework and respecting the human rights to water and sanitation.7
6 See Committee on Economic, Social and Cultural Rights general comment No. 20, para. 14.
7 See the Guiding Principles on Business and Human Rights.
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.
specific purposes without explicit mention of the human rights to water and sanitation
standards or principles does not necessarily mean that those forms of regulation do not take
into consideration at least partially these standards and principles.9 In this context, it is
essential to emphasize a distinction between fully incorporating the human rights to water
and sanitation into regulatory frameworks and choosing some selected aspects of it to
comply with. For States to fulfil their human rights obligations, the whole human rights to
water and sanitation framework must be reflected in States’ regulatory norms and activities.
26. It is widely accepted that the scope for competition in the water and sanitation sector
is limited, due to the prominence of significant upfront, sunk costs. This situation
commonly results in the existence of a single service provider — public or private — in a
given area, defined as natural monopoly, reinforcing the need for adequate regulatory
measures to ensure that the rights of users are not compromised. In fact, historically, the
rationale for introducing regulation in the water and sanitation sector has been related to
instances of “market failure”, in particular, prevention of monopoly abuse. 10 In such
monopoly situations, regulatory bodies may be more exposed to the risk of capture by
providers, due to information and power asymmetries among other factors, and by political
interests, since these bodies are part of governments.11
27. Some authors argue that in recent years there has been a gradual shift in the
normative goals of regulation from “pure” economic goals to a greater level of inclusion of
social objectives. Some contend that the rationale for the regulation of water and sanitation
services should involve three dimensions of sustainability: (a) the social sustainability of
the services, by protecting users’ interests; (b) the economic, infrastructure and human
resource sustainability of the entities providing the services; and (c) the environmental
sustainability, in terms of the efficient use of environmental resources. 12 Others have
identified “human rights” as an additional regulatory rationale, according to which the
regulatory body protects service users’ rights directly “through developing standards
reflecting these rights and monitoring their application through inspection”. 13 From a
human rights perspective, the regulatory framework’s objectives, activities and norms
should be derived from the human rights framework.
28. The role of regulation and monitoring becomes particularly challenging in rural
areas and in densely populated informal settlements in urban areas, where large proportions
of the population are not served by a piped network and rely on informal small-scale
providers, which often operate unregulated and as a result provide poor-quality services at
high prices.14 Given the informal nature of the provision, and the lack of regulation and
monitoring, users of such services do not have a complaint mechanism that they can avail
themselves of when services are inadequate or unaffordable.
B. Types of regulatory frameworks
29. States have interpreted the role of regulation in various ways, depending largely on
the norms applicable to their particular context and the needs that correspond to that
context, which leads to a range of different regulatory models and institutional
arrangements. The most appropriate approach differs from country to country and depends
9 Robert Bos and others, Manual of the Human Rights to Safe Drinking Water and Sanitation for
Practitioners (London, International Water Association, 2016), p. 58.
10 Richard Franceys and Esther Gerlach and others, Regulating Public and Private Partnerships for the
Poor (Cranfield University), chap. 3, p. 2.
11 Emilio J. Lentini and Gustavo Ferro, “Políticas tarifarias y regulatorias en el marco de los Objetivos
de Desarrollo del Milenio y el derecho humano al agua y al saneamiento”, Recursos Naturales e
Infraestructura, No. 164 (Economic Commission for Latin America and the Caribbean, 2014).
12 Jaime Melo Baptista, The Regulation of Water and Waste Services: An Integrated Approach (RITA-
ERSAR) (International Water Association Publishing, 2014), p. 43.
13 Julián Daniel López Murcia, “Regulatory agencies and courts in the South: the overlaps in Colombian
water regulation”, Journal of Politics in Latin America, 5, 2 (2013), pp. 105-132.
14 UN-Water Global Analysis and Assessment of Sanitation and Drinking Water, Investing in Water and
Sanitation: Increasing Access, Reducing Inequalities (2014 report), p. 19.
on the general regulatory framework, the levels of institutional capacity and the types of
problems that must be addressed.
1. Self-regulation
30. In some countries, regulatory frameworks include the model of self-regulation,
whereby public service providers regulate their own activities, set tariffs and quality
standards and monitor their own performance. Many countries with public service
providers have not seen the necessity of creating a separate regulatory function for the
water sector. In El Salvador, the National Water Mains and Sewers Administration, the
main service provider in urban areas, sets its own quality of service standards, while the
Ministry of Health monitors the quality of drinking water and the Ministry of Economics
approves changes to water rates (see A/HRC/33/49/Add.1, para. 25). In Tajikistan, the
Ministry of Energy and Water Resources has the overall responsibility for guaranteeing the
national drinking water supply and coordinating relevant actors in the water sector (see
A/HRC/33/49/Add.2, para. 10). It is also responsible for the adoption and implementation
of State programmes for the development of drinking water supply systems, the
establishment and regulation of water tariffs and the provision of public information.
31. Self-regulation raises significant human rights challenges in terms of guaranteeing
independent monitoring and providing reliable accountability mechanisms. Regulatory
principles such as impartiality, accountability, transparency and good governance can
potentially be compromised by self-regulation as there is no separation between policy,
regulation and service provision. Benchmarking and user consultation and participation also
seem to be less common. Self-regulation can also lead to a lack of uniformity in
performance, including in tariff-setting, with different service providers abiding by
different standards.
2. Regulation by contract
32. Regulatory frameworks may also be characterized by a broad spectrum of
contractual arrangements between governments which formally delegate service provision,
and third parties. In such cases, the instrument delegating service provision defines the
relationship between the public asset owner and the service provider and sets service
standards. In the case of State-owned companies, management will usually be delegated via
legislation, decrees or contracts, while public authorities will often enter into contracts with
private providers. Contracts may differ according to the ownership of assets, the
responsibility for capital investments, the allocation of risks, the responsibility for
operations and maintenance, and the typical contract duration. France is a country with a
long history of this type of regulation, established through private-sector participation
contracting with local government.
33. A number of human rights challenges arise when regulating service provision by
contract, particularly when non-State actors are involved. Such challenges include
guaranteeing transparent and democratic decision-making, addressing power asymmetries
in the bidding and negotiation process, ensuring affordable services, avoiding
disconnections in cases of inability to pay, ensuring monitoring and accountability, and
addressing corruption. It is also important that contracts, which are normally valid for
decades, can be reviewed and adapted over time.
34. Meaningful public participation and access to information are human rights
principles that often tend to be overlooked by States and service providers during the
process of tendering, bidding and contract negotiation. From a human rights perspective, it
is crucial that governments ensure that contractual arrangements include the necessary
human rights safeguards, and that overall they contribute to, rather than undermine, the
realization of the human rights to water and sanitation, without discrimination.
35. Regulation by contract can be combined with supervision by regulatory actors. In
these cases, service standards and tariffs agreed upon by the parties to the contract have to
be approved by the regulatory actor. The intervention and the oversight of the contract by a
regulatory actor, if oriented by the human rights framework, can contribute to the
realization of the rights to water and sanitation.
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 decision-
making 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 The Regulation of Water and Waste Services: An Integrated Approach (RITA-ERSAR), p. 42.
16 Lisbon Charter, art. 7.4.
17 The Regulation of Water and Waste Services: An Integrated Approach (RITA-ERSAR), p. 2.
18 Tony Prosser, “Regulation and social solidarity”, Journal of Law and Society, vol. 33, No. 3 (2006),
pp. 364-387.
IV. Core functions of regulatory actors
A. Setting standards
41. One of the key roles of regulation is to set performance standards. Setting standards
for service provision is one of the main functions of the State. The State has the duty to
comply with its obligations under the International Covenant on Economic, Social and
Cultural Rights and must ensure that those carrying out regulatory functions contribute to
the progressive realization of the human rights to water and sanitation.19 This means that the
exercise of regulatory functions in general, and the making of regulation in particular, must
comply with the human rights framework regardless of the public or State body that is
carrying them out.
42. Therefore, in regulating water and sanitation services, it should be recognized, as a
starting point, that water and sanitation are human rights derived from the right to an
adequate standard of living (see art. 11 of the International Covenant on Economic, Social
and Cultural Rights) and are inextricably related to the right to the highest attainable
standard of physical and mental health (see art. 12 of the Covenant on Economic, Social
and Cultural Rights), as well as to the right to life (see art. 6 of the International Covenant
on Civil and Political Rights) and the right to human dignity (see arts. 1 and 22 of the
Universal Declaration of Human Rights). According to international human rights law, the
human right to water entitles everyone, without discrimination, to have access to sufficient,
safe, acceptable, physically accessible, and affordable water for personal and domestic use.
The human right to sanitation entitles everyone, without discrimination, to have physical
and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure and
socially and culturally acceptable and that provides privacy and ensures dignity. From a
human rights perspective, the ultimate objective of regulation is to give practical meaning
to the normative content of these rights, as follows:
1. Availability
43. Regulations should give a practical meaning to “availability” and ensure, at least,
access to a minimum essential amount of water that is sufficient, reliable and safe for
personal and domestic uses to prevent disease. According to the World Health Organization
(WHO) guidance, an intermediate level of access, to 50 litres per person per day, represents
a low level of health concern (provided that absence of contamination is rigorously
assessed), while an optimal level of access, to 100 litres per person per day, represents a
very low level of health concern.20 A regulatory interpretation of “availability” should also
consider situations where additional supply of water is required due to health issues,
climate conditions (i.e. drought), emergency/disaster situations,21 work conditions, or any
other special circumstances; and situations of disruption to water supply.
44. With respect to sanitation, regulatory frameworks should prescribe a sufficient
number of sanitation facilities within, or in the immediate vicinity, of each household (see
A/HRC/12/24, para. 70). The assessment of the sanitation requirements of any community
must be informed by the context, as well as the characteristics of particular groups which
may have different sanitation needs (e.g. women, persons with disabilities, children).
Where a piped network is not available, regulation should consider the possibility of
alternative solutions, such as the construction and maintenance of sanitation facilities, and
the disposal and treatment of waste water. In cases where sanitation facilities are shared,
regulation should envisage a sufficient number of facilities available.
45. Regulatory standards should prioritize access to both water and sanitation facilities
in public places in sufficient numbers; in institutional facilities, including hospitals,
19 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 51.
20 World Health Organization (WHO), “Domestic water quantity, service level and health”, available
from www.who.int/water_sanitation_health/publications/wsh0302/en/.
21 WHO, “How much water is needed in emergencies”, July 2013.
schools, public transport hubs, prisons, and places of detention, at the workplace and in
rented housing, taking into consideration the special needs of, inter alia, women and girls;
and in relation to those without a permanent dwelling, including homeless people and
nomadic communities. Regulation should separate access to water and sanitation services
from land tenure, often an obstacle to accessing these services in informal settlements.
2. Accessibility
46. A regulatory interpretation of physical accessibility of water and sanitation facilities
should provide as minimum standards that these facilities are within safe physical reach or
in the immediate vicinity of each household at all times of day and night.22 In its proposed
indicators for monitoring Sustainable Development Goal 6, the WHO/UNICEF Joint
Monitoring Programme for Water Supply and Sanitation suggests that a round trip to access
an improved drinking water source should not take longer than 30 minutes, including
queuing (basic level), and that a basic level of sanitation should provide access to an
improved sanitation facility not shared with other households. Furthermore, regulation
should specifically address the situation of those with special needs in terms of
accessibility, such as children, persons with disabilities, older persons, pregnant women,
and people with special health conditions, and advise that the design of sanitation facilities
accommodates their specific needs, while being technically safe to use. Places such as
schools, preschools, care homes and detention centres require specific regulations to ensure
physical accessibility.
3. Quality and safety
47. National standards must ensure that the water used for each personal and domestic
use is safe for human health as regards the presence of microorganisms, chemical
substances and radiological hazards.23 The WHO Guidelines for Drinking-Water Quality24
provide guidance for setting national regulations and standards for water safety in support
of public health. The Guidelines describe reasonable minimum safe-practice requirements
to protect health and provide numerical “guideline values” for constituents of water or
indicators of water quality. When defining mandatory limits, the Guidelines are an
authoritative source and must be taken into consideration in the context of local or national
environmental, social, economic and cultural conditions.
48. Even when in place, regulations are not always used to their full potential and best
advantage to maximize public health benefits. For example, regulations do not always
clearly indicate which stakeholders are accountable and liable for identifying, responding to
and mitigating risks to drinking-water quality. Regulations should also contemplate
situations where water supply is unsafe, by providing coping measures (e.g. alerts) and
precautionary actions. In this context, access to information on water quality is essential
and should be safeguarded by regulation, using clear, easy-to-understand language, and be
readily accessible to all the population.
49. The regulation of sanitation facilities should provide that they are designed and built
in a way that effectively prevents human, animal and insect contact with human excreta,
and should safeguard access to safe water for handwashing, anal and genital cleansing and
menstrual hygiene, and ensure mechanisms for the hygienic disposal of menstrual products
(see A/HRC/12/24, para. 72). The Special Rapporteur recommends that regulations require
that the specific needs of women and girls are incorporated into the design, implementation,
monitoring and evaluation of water and sanitation facilities (see A/HRC/33/49, para. 77
(h)). To that end, their participation in the design of the facilities should be sought by
service providers.
22 See Committee on Economic, Social and Cultural Rights general comment No. 15, paras. 12 (c) (i)
and 37 (c).
23 Ibid., para. 12 (b).
24 See www.who.int/water_sanitation_health/publications/drinking-water-quality-guidelines-4-
including-1st-addendum/en/.
50. Regular cleaning, emptying of pits or other places that collect human excreta, and
maintenance should also be regulated, in order to ensure the sustainability of sanitation
facilities and continued access to them. Where on-site sanitation solutions are used,
regulation must ensure that pits and septic tanks are required to be constructed in a way that
contents can be adequately collected and disposed of at a sludge treatment facility rather
than dumped into the environment.25
4. Affordability
51. Regulation must provide a multifaceted and contextual interpretation of
affordability, in line with the human rights framework. National standards must ensure that
water and sanitation services, whether privately or publicly provided, are affordable for all,
including the poorest, and that water and sanitation tariffs do not compromise or threaten
the realization of other rights.
52. While affordability provisions in water and sanitation laws are quite common, the
challenge is to translate general provisions into concrete affordability standards (see
A/HRC/30/39, para. 26). The Global Analysis and Assessment of Sanitation and Drinking
Water 2016-2017 country survey indicates that 68 per cent of respondent countries have a
regulatory authority that is responsible for setting urban tariffs for either drinking water or
sanitation or both. To ensure the affordability of services, regulatory frameworks must
capture the specific needs of the several groups that live in vulnerable situations and offer
differentiated solutions for the two main expenses incurred by users: the one-off connection
fees that contribute to capital construction costs, and the cost of the recurrent charges
(tariffs for operation, maintenance, capital assets renewal, and any financing costs of capital
for new fixed assets). To this end, regulatory actors must promote the use of appropriate
measures, including free or low-cost service provision for households with very low or no
income, income supplements, social tariffs and targeted subsidies. It is essential that
financial sustainability does not become the priority of tariff-setting, to the detriment of
affordability, but that both elements are reconciled. Similarly, it is essential that investment
in the extension of distribution networks to low-income unserved areas is not delayed in an
attempt to minimize the affordability challenge.
53. Inextricably linked to the question of setting affordability standards for water and
sanitation services is the issue of disconnections. Regulatory frameworks should set an
outright prohibition on disconnections due to inability to pay.
5. Acceptability, privacy and dignity
54. The regulatory framework must provide a contextual meaning of the social and
cultural acceptability of water and sanitation facilities. This cannot be done in a meaningful
way without the genuine participation of those who use the services. While water should be
of an acceptable colour, odour and taste for each personal or domestic use, 26 these are
highly subjective parameters, and perceptions of these characteristics depend on local
culture, education and experience.27 Personal sanitation is a highly sensitive issue across
regions and cultures, and differing perspectives about which sanitation solutions are
acceptable must be taken into account when designing, positioning, and setting conditions
for the use of sanitation facilities (see A/70/203, para. 13). Regulations should stipulate that
facilities need to allow for acceptable hygiene practices in specific cultures, such as anal
and genital cleansing, and menstrual hygiene (see A/HRC/12/24, para. 80). Acceptability
often requires separate facilities for women and men in public spaces, and for girls and
boys in schools, which should be reflected in regulatory frameworks. Regulation should
play an essential role in ensuring that toilets are constructed in a way that safeguards
privacy and dignity.
25 Inga Winkler, “The human right to sanitation”, University of Pennsylvania Journal of International
Law, vol. 37, No. 4 (2016), p. 1383.
26 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 12.
27 Manual of the Human Rights to Safe Drinking Water and Sanitation for Practitioners, p. 20.
6. Participation and access to information
55. To meet human rights standards, regulatory decision-making processes must ensure
genuine public participation in key decisions. Every individual and group has the right to
participate actively, freely and in a meaningful way in the process of setting service
standards that may affect their enjoyment of the rights to water and sanitation. Positive
measures will often be required to ensure that all people, including women and populations
in vulnerable situations, are given a real opportunity to take part in and influence the
making of regulations. The Special Rapporteur cautions that attempts to ensure women’s
participation through regulatory processes may not correspond to local customary norms
and the implementation may subsequently fail (see A/HRC/33/49, paras. 56 and 59).
Therefore, mechanisms must be put in place to involve women in formulating regulations
on water and sanitation and to remove barriers to their participation.
56. Regulations should ensure that decisions on the type and location of services and on
improvements to services are participatory and inclusive. Inclusiveness in this process is
crucial, so that services are designed to respond to the needs of the population, including of
those in vulnerable situations.
57. Access to information and transparency are essential in order for participation to be
meaningful. Regulatory actors must enable a culture of transparency by providing access to
information that is objective, comprehensible, clear and consistent and is made available to
everybody in different formats and in the appropriate language. The Special Rapporteur has
observed that in El Salvador, decisions on water rationing measures are not systematically
publicized and there seems to be no standard rule for informing users about such measures
(see A/HRC/33/49/Add.1, para. 32). Similarly, the results of quality tests on water for
human consumption are neither made public nor sent to users. Regulation of the ways in
which information should be shared is therefore essential.
7. Equality and non-discrimination
58. A regulatory framework should contain positive measures or affirmative action that
ensure the progressive realization of the human rights to water and sanitation for all, in a
non-discriminatory manner, while eliminating inequalities in access, including for
individuals belonging to groups at risk and groups that are marginalized on the grounds of
race, gender, age, disability, ethnicity, culture, religion, national or social origin or any
other grounds. Such measures should target specific challenges, including: (a) prioritization
of the extension of coverage of water and sanitation services to rural and deprived urban
areas, while taking into account the specific needs of women and children; (b) the denial of
the rights to water and sanitation to people living in informal settlements, on the grounds of
their housing or land status; and (c) the lack of affordability of services for the poorest.
8. Sustainability
59. When setting standards, regulation should aim to achieve the economic,
environmental and social sustainability of service provision. Regulation should mirror the
State’s obligation to guarantee the rights to water and sanitation sustainably and without
discrimination, for both present and future generations.28 This means that today’s services
should not limit or negatively affect future generations’ access to services. To that end,
when developing a regulatory framework, States should ensure an integrated regulatory
approach for the services, including both the regulation of the sector as a whole and the
regulation of each service provider individually.29 Regulation also has a role to play in
contributing to providing preparedness and resilience measures for emergency situations.
60. Promoting the affordability of services, together with a level of cost recovery that
meets the requirements for financial sustainability, is a major challenge for regulatory
frameworks. Regulatory actors must strike the fine balance between enabling service
providers to adequately perform operational and maintenance activities, considering
28 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 11.
29 Lisbon Charter, art. 7.3.
infrastructural, environmental and resource costs, and ensuring affordability. Economic
perspectives and human rights perspectives are possible to reconcile, requiring from
regulatory actors innovative approaches and a redesign of economic instruments in some
situations.
9. Accountability
61. In order to be effective, regulatory frameworks should allow for independent
monitoring of service providers’ compliance with the human rights to water and sanitation
and should safeguard the right of individuals to submit complaints when the enjoyment of
their rights to water and sanitation has been compromised.30 Regulatory frameworks should
impose appropriate and proportionate sanctions on service providers in cases of non-
compliance with the normative content of the human rights to water and sanitation.31
B. Monitoring implementation
62. Monitoring is essential for understanding current levels of access to water and
sanitation services — by focusing on issues such as affordability and water quality,
identifying barriers to access for unserved or underserved populations, and ensuring that
participatory processes are inclusive. National and local monitoring processes gather
information that helps identify drivers and bottlenecks, highlight gaps, and assess strengths
and challenges, and as such are essential for the realization of the human rights to water and
sanitation.
63. Regulatory actors play an essential role in monitoring service providers’ compliance
with the normative content of the human rights to water and sanitation. Access to
information is crucial in this process. Regulatory actors must be able to collect, analyse and
disseminate accurate information on the performance of all service providers. On the other
hand, service providers have the responsibility to provide to regulatory actors complete and
reliable information on the services, including on their quality, on complaints received from
users and on challenges faced in extending services to poorer areas.
64. Monitoring should not only examine compliance of service providers with national
and local standards, but should also assess whether the provision of services is carried out
in a way that ensures compliance with international human rights obligations such as
equality and non-discrimination, participation, access to information and accountability.
Regulatory actors are responsible for setting and monitoring indicators of progress towards
the realization of the human rights to water and sanitation, which should reflect human
rights principles and standards in a direct way. Indicators should cover all the different
elements of the rights to water and sanitation and be disaggregated by prohibited grounds of
discrimination,32 while setting specific benchmarks (feasible targets for gradually meeting
the indicators) in relation to each indicator.
65. The principle of progressive realization should guide the monitoring process and any
retrogression observed in service provision should be prohibited and sanctioned by the
regulatory framework.
1. Formal service providers
66. Regulatory frameworks are often only applied to formal service providers, which
may range from large-scale utilities to small municipal and cooperative providers. Where
formal provision exists, it is expected that there will be available data on standards and
targets set, which can be monitored by a regulatory actor. However, small municipal and
cooperative providers often have more difficulties in living up to quality standards than
large-scale utilities do. Regulatory actors can play a proactive role in enhancing small-scale
30 Ibid., art. 4.4.
31 Ibid., art. 4.9.
32 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 53.
providers’ performance by monitoring them, providing them with information and
recommending strategies that might help them improve their standards.
67. According to Investing in Water and Sanitation: Increasing Access, Reducing
Inequalities (UN-Water Global Analysis and Assessment of Sanitation and Drinking Water,
2014 report), less than half of countries report a functioning process whereby formal rural
drinking-water service providers report the results of their internal monitoring to regulatory
authorities and also use the results to trigger corrective action. Moreover, performance
results are not typically made public for a majority of service providers. Only for urban
formal service providers were performance results made public for over 60 per cent of
respondent countries. Countries indicated that the extent of independent surveillance of
water quality was far greater in urban areas: nearly 70 per cent of countries reported
surveillance in urban areas, compared to only 40 per cent in rural areas.
68. Similarly, formal sanitation service providers, whether urban or rural, typically do
not report data to regulatory authorities. While a regulatory framework and standards for
sewerage networks are generally available, they are not always effectively put in place and
monitored.33 Sewerage systems often raise affordability concerns for the State, the service
provider and the user and require careful monitoring. Connection charges may prevent
poorer households from making use of this service, unless appropriate regulation is in place
to ensure affordability.
2. Informal service providers
69. The situation becomes far more complex when monitoring informal small-scale
providers. Piped systems are often not available to rural households or to those living in
informal settlements in urban areas (see A/70/203, para. 64). This represents a significant
problem of inequality in access, as people living in these areas, who are often poorer, have
to rely on alternatives that are often of lower quality and that tend to cost far more. In these
situations, some types of services, such as informal shared or communal facilities and
unregulated individual on-site solutions, are seen as necessary short- to medium-term
solutions. However, without suitable regulation and monitoring, none of these services can
be guaranteed to comply with human rights standards.
70. Non-governmental organizations and community-based organizations are taking on
an important role in informal service provision, stepping in where the State is not involved
in such activities. Many of the same challenges in relation to regulation and accountability
apply to the activities of such organizations, for instance ensuring consistent standards as
regards quality of services and ensuring that organizations are accountable to the people
they serve. Population groups in many countries are served by community and informal
service providers, which rarely report internal monitoring results to authorities.34
71. One approach to monitoring in informal settlements that has shown positive results
is the use of participatory geographic information systems, which merge technical spatial
information with a local community’s location-specific knowledge, often producing rich
data including on land use, water sources, differentiated access to resources and sites of
actual or potential environmental hazards. For instance, OpenStreetMap 35 initiatives in
informal settlements in Nairobi have generated detailed data indicating how many
households share a toilet, whether there are gender-specific toilets, whether the toilets have
disability access and whether the toilets provide sanitary bins for women (see A/69/213,
para. 82).
72. It is important that States and regulatory actors recognize the existence of informal
service provision and assess the role that it plays in a given context. While the choice of the
best policy approach to informal providers rests with the State and will depend on the
particular circumstances of each case, human rights law prescribes that where services are
33 See A/70/203, para. 46. See also
www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/Differentlevelsandtypesofservices.aspx.
34 Ibid., para. 19.
35 See www.openstreetmap.org.
operated or controlled by third parties, States must prevent them from compromising equal,
affordable and physical access to sufficient, safe and acceptable water.36 In such cases, the
Committee on Economic, Social and Cultural Rights advises that an effective regulatory
system must be established. It is important, in these situations, that regulatory instruments
and the institutional set-up chosen be adapted to the nature of small-scale service provision.
73. The State of Palestine reports that in its territory informal providers are not only
present but are essential to ensure some communities’ access to water. This delivery is the
only effective option for many communities, hence it is considered a public service.
Currently, different governmental institutions are collaborating in order to ensure regulation
and supervision of these informal providers. Efforts are being made to license and certify
them. The Government’s long-term strategy is to fully connect local communities to public
water distribution networks, but in the short term the strategy is to regulate this service and
facilitate the mutual support between the local communities and informal service providers.
74. In Kenya, on the other hand, the regulatory framework does not apply to water
providers who supply fewer than 20 households or less than 25 cubic metres of water per
day for domestic use. These providers are currently outside the regulated tariff structure and
the system of regular quality inspections.37 The Government’s position is that in the long
term, informal service providers should be linked to the formal system, and should comply
with official tariffs and quality standards. In the short term, the Government tolerates
informal provision but does not regulate it.
75. Whether States decide to aim for regulation, or to use incentives for the provision of
quality services at affordable prices, or to phase out small-scale providers in the long term
and replace them with formal provision, it is essential that they do not worsen the situation
and leave people without access to services (see A/HRC/15/31, para. 53). In particular,
when granting exclusivity to formal providers extending into areas that have previously
been served by small-scale providers, States must ensure that connection to a piped network
is actually an affordable alternative. In these situations, affordability studies should be
carried out by regulatory actors in order to avoid retrogression.
76. The regulation of water and sanitation services (or the lack thereof) in rural areas is
similarly challenging. Rural water supplies are often managed by local community
organizations or members, untrained and unpaid, and it is argued by some that they would
benefit from provision of training, resources, and assistance, rather than regulatory
enforcement.38 However, these two measures are not incompatible and it is a question for
governments to balance support for communities with regulation.
77. The WHO/UNICEF Joint Monitoring Programme for Water Supply and Sanitation
2015 update shows that 70 per cent of people who do not use improved sanitation facilities,
and 90 per cent of people who practise open defecation, live in rural areas. From a
regulatory perspective, rural sanitation is a major challenge, as the need for safe sanitation
is often not recognized. The construction and maintenance of latrines is often neglected,
partly due to the taboo surrounding sanitation. Often, the vast majority of sanitation
solutions are not regulated, managed or monitored by any State body (see
A/HRC/33/49/Add.2, para. 14). The recognition of sanitation as a distinct right by the
General Assembly and by the Human Rights Council warrants its political prioritization by
States and the creation of an enabling environment for its progressive realization, including
through the establishment of appropriate regulatory frameworks, adapted to local
circumstances, that address the individual dignity and public health dimensions of this
right.
36 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 24.
37 United Nations Development Programme, Small-scale Water Providers in Kenya: Pioneers or
Predators? (2011), p. 29.
38 WHO, Water Safety Planning for Small Community Water Supplies: Step-by-step Risk Management
Guidance for Drinking-water Supplies in Small Communities (2012).
3. Regulatory bodies
78. Compared to other areas of regulation, water and sanitation regulation is
characterized by the fact that the regulated services relate directly to the fulfilment of
human rights. While water and sanitation regulatory bodies are well positioned to
contribute to the progressive realization of the rights to water and sanitation, their activities,
whether through their regulations and decisions or through failure to live up to their
mandate, can also potentially result in breaches of these rights. In their plans and activity
reports, regulatory bodies should provide clear and relevant information on their policies,
procedures and activities and indicate how they contribute to meeting human rights
standards progressively.
79. Regulatory bodies’ activities should be controlled and monitored by different
entities, such as user councils, parliamentary committees or courts of auditors. For example,
in early 2014, the Portuguese Court of Auditors released a report on the audit of the
regulation and management of water service concessions and public-private partnerships.
The Court’s audit examined the activity of the Water and Waste Services Regulatory
Authority as the regulator of such concessions, identified the processes of contract revision,
identified public spending involved in each concession and examined the effectiveness of
concessions in terms of the quality of services (see A/HRC/36/45/Add.1, para. 39). Its main
conclusions show that the majority of concessions consistently benefited the private sector
to the detriment of municipal budgets and of affordability of services for users (see
A/HRC/36/45/Add.1, paras. 39 and 40).
C. Ensuring accountability
80. Accountability at the national level can be achieved through administrative, quasi-
judicial and judicial mechanisms. Mechanisms can be based at the level of the service
provider or at the level of the State. For example, when a complaint is not resolved at the
level of the service provider, individuals should have the right to address their complaint to
an administrative mechanism such as a regulatory body.
81. Regulatory actors play a key role in ensuring service providers’ accountability for
non-compliance with the human rights to water and sanitation. To ensure accountability,
regulatory frameworks must clearly define the roles and responsibilities of all stakeholders
involved in service provision and provide clear and accessible information on the complaint
mechanisms available at different levels. A growing number of independent regulatory
bodies have complaint mechanisms for the resolution of disputes between service providers
and users.
82. In the resolution of complaints against services providers, regulatory actors must
ensure that any action that interferes with an individual’s enjoyment of the rights to water
and sanitation is preceded by an opportunity for genuine consultation with the individual
affected, the timely and full disclosure of information on the proposed measures, reasonable
notice of proposed actions, legal recourse and remedies for the individual affected, and
legal assistance for obtaining legal remedies.39
83. The regulatory body must also be endowed with the power to enforce existing
regulations and contractual agreements. Mechanisms for contract enforcement must include
adequate incentives, penalties for non-compliance, such as fines, and the possibility of
revocation of the contract (see A/HRC/15/31, para. 52).
84. In countries where no separate regulatory mechanism exists, but where national
human rights institutions or ombudspersons’ offices are present, individuals may resort to
these independent bodies for redress when their human rights to water and sanitation have
been compromised by a service provider. Accountability can be provided by these quasi-
judicial bodies, whose mandate often includes handling human rights complaints.
39 See Committee on Economic, Social and Cultural Rights general comment No. 15, para. 56.
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 that a more nuanced approach is needed
regarding the concept of independence of regulatory bodies. In particular, the
involvement of governmental sectors in specific situations of regulatory decision-
making should be safeguarded when it is relevant to ensure that human rights
standards are met.
89. 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 Lisbon Charter, art. 7.6.
41 See www.corteconstitucional.gov.co/relatoria/2009/T-546-09.htm and
www.corteconstitucional.gov.co/relatoria/2012/T-273-12.htm.
(d) Ensure that regulatory frameworks provide a multifaceted and
differentiated interpretation of affordability, capturing the specific needs of those
living in vulnerable situations;
(e) Ensure that access to water and sanitation services is not conditioned by
land tenure in law and in regulatory frameworks;
(f) Ensure through adequate regulation that, when extending formal
services to informal settlements, these services are affordable and do not interfere
with people’s access;
(g) Prohibit disconnections due to inability to pay, in law and in regulatory
frameworks;
(h) Ensure that instruments delegating service provision, including
contracts, reflect the national regulatory framework and human rights standards;
(i) Include, in regulatory frameworks, specific requirements ensuring
adequate provision of services to, inter alia, homeless people, poor nomadic
communities, and victims of situations of armed conflict, emergencies, natural
disasters or climate change effects;
(j) Include, in regulatory frameworks, specific requirements ensuring
adequate provision of services to, inter alia, schools, health facilities, prisons,
transport hubs and public spaces in general;
(k) Establish the necessary mechanisms to ensure accountability of
regulatory actors;
(l) Inform and train regulatory actors on the practical implications of the
realization of the human rights to water and sanitation in their area of work.
90. In addition, the Special Rapporteur recommends that regulatory actors:
(a) Comply with the State’s international human rights obligations with
regard to the rights to water and sanitation and take targeted steps towards the full
realization of these rights;
(b) Carry out independent monitoring of service providers’ compliance with
the normative content of the human rights to water and sanitation and ensure that in
cases of retrogression providers address the root causes of these violations;
(c) Set and monitor indicators that cover all the elements of the rights and
disaggregate them by prohibited grounds of discrimination;
(d) Ensure non-discriminatory service coverage by service providers,
including to poorer neighbourhoods, informal settlements and rural areas;
(e) Provide access to objective, comprehensible, clear and consistent
information and facilitate free, active and meaningful participation in regulatory
decision-making processes;
(f) Ensure that tariff-setting reconciles financial sustainability with
affordability, while prioritizing and protecting the needs of those living in poverty;
(g) Support and influence policy formulation and legislative changes in line
with the human rights to water and sanitation;
(h) Provide clear and relevant information on their policies, procedures and
activities and indicate how they contribute to the progressive realization of the human
rights to water and sanitation;
(i) Safeguard the right of individuals to submit complaints when the
enjoyment of their rights to water and sanitation has been compromised by service
providers.