Statement by Special Rapporteur on the human rights to safe drinking water and sanitation at the seventy-third session of the General Assembly

New York, 19 October 2018

Mr. President, Excellencies, distinguished delegates, ladies and gentlemen,

It is a pleasure to present my report on the principle of accountability in the context of the realization of the human rights to water and sanitation.

Before I introduce my report, allow me to refer to the well-known parable of the blind men and the elephant: a group of blind men touches an elephant to learn what it is like and each describes the elephant differently because each man felt a different part of it and only that part. Similar to an elephant, the concept of accountability can be understood differently by people with different perspectives and backgrounds and in different contexts. This is also the case of human rights, which is dynamic and evolving in nature, and requires a contextual analysis.

In the water and sanitation sector, different actors have explored this ‘elephant’ - the concept of accountability - and aimed to formulate how the concept might be applied to the specific features of the sector. However, there is no agreed definition of the concept. And some actors have not seen the elephant yet.

Therefore, the clarification of the concept, under the human rights lens, is essential for the water and sanitation sector, which involves a variety of actors related to the realization of those rights. They include government entities, international organizations, transnational and national corporations and non governmental organizations.

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The diversity of actors with key roles in the water and sanitation sector implies that the traditional State-centred human rights framework leaves gaps in the traditional accountability mechanisms. As a result, when the rights to water and sanitation are affected, it is not always clear to whom a particular action may be attributed, why such action was taken, how sanctions may be enforced against those who caused harm or how to remedy the situation.

Furthermore, globalization and the neoliberal wave have often weakened the role of the State in the provision and regulation of water and sanitation services, and the imbalance of power has at times affected the realization of the human rights to water and sanitation. This raises questions as to the possibility of effective regulation of private service providers and, in turn, poses challenges to accountability mechanisms, especially considering that those services are provided through a system of natural monopoly, with only one provider for a given territory.

Another unique feature of the water and sanitation sector is the widespread presence of informal and unregulated service providers that operate without a licence and that, as a result, may not be held accountable. Similarly, in the context of a crisis, such as the migratory crisis, there exists no clear accountability framework based on human rights to provide guidance and standards, which, combined with the urgency of the situation in which actors operate, creates a gap where no one is held accountable.

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Given these observations, I used a three-dimensional framework to describe the ‘elephant’, explaining to accountable actors and affected population in the water and sanitation sector the concept of accountability aligned with human rights. In the report, I provide clarification of the three dimensions of accountability in the water and sanitation sector: roles, responsibility and performance standards; providing explanations and justification; and enforcement mechanisms for compliance.
Who is accountable, who can hold actors accountable and for what?

First, the adequate implementation of accountability requires a clear definition of who is accountable, who may hold actors accountable and what actors must be accountable for. Affected populations can hold States and other accountable actors to account for failing to adhere to predetermined performance standards or to comply with human rights obligations. Yet, the challenge lies in the difficulty of ascertaining who is accountable for access to water and sanitation services, particularly given the often complex architecture of governmental institutions in that sector, the involvement of private and informal service providers, the existence of regulators and situations where no one is formally identified as accountable.

Actors other than States that are accountable include formal and informal service providers, which range from private companies, NGOs and community-based organizations to individuals involved in service provision. They also include business enterprises that may impact the enjoyment of the human rights to water and sanitation in the course of their operation.

I recommend that accountable actors:

• Clearly identify the roles and responsibilities of entities whose influence, actions, inaction and decisions affect the provision of water and sanitation services, making those roles and responsibilities transparent and clear to the affected individuals; and
• Adopt the normative content of the human rights to water and sanitation and human rights principles as the fundamental basis for performance standards.

Providing explanations and justification

Second, the provision of proper explanations and justification requires that States and other accountable actors be able to answer questions and give the information requested by individuals or organizations. This should be applied particularly for those marginalized and those in vulnerable situations who need to be empowered to request information and actively ask questions.

It also requires that those actors proactively and systematically provide information, in a transparent manner, as well as open spaces for interactions with affected populations. Both aspects rely on an effective and explicit human rights framework that upholds the right to information, participation, monitoring and reporting, in conjunction with advocating transparency and other principles to combat corruption.

I emphasize that accountable actors must:

• Maintain clear and effective mechanisms to respond to requests and concerns from affected populations, giving timely answers and ensuring that the information provided is meaningful and useful;
• Facilitate the exchange of information, opening participatory spaces, whereby affected populations may assess whether the information that they have received is reasonable, voice their opinions and be able to influence relevant decisions without language and other barriers.

Compliance through enforceability

Third, enforceability is critical to ensure accountability by imposing sanctions and remedial actions for violations and abuses by different actors. This is preceded by a process whereby bodies and mechanisms oversee actors’ compliance trough performance standards that should be in line with the human rights to water and sanitation. Judicial and quasi-judicial mechanisms serve as a means for affected populations to hold States and other accountable actors to account. However, this needs to be complemented by an enabling environment that empowers the affected populations to lodge claims and that builds trust and effectiveness in the accountability mechanisms.

To ensure enforceability, I recommend that:

• An effective oversight systems be established, to trace the conduct of actors and to assess whether performance standards are met;
• Barriers faced by people in vulnerable situations to resort to a judicial or quasi-judicial mechanism are assessed and addressed, eliminating institutional, physical, economic, social or other barriers.

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Finally, I would like to underline that the principle of accountability is a core and a cross-cutting human rights principle. With the essential aim of balancing power to protect the most marginalized and those living in vulnerable situations, this principle must be used as a mechanism to hold States and actors other than States accountable for actions, inaction and decisions that affect the enjoyment of the human rights to water and sanitation.

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Let me conclude by reiterating that my colleagues and I attach great importance to our engagement with this Committee. Therefore, it is regrettable that some of my colleagues will not present their reports in person this year after proposing a number of changes to the schedule while respecting the time allotted to the Special Procedures and preserving thematic coherence. We hope that a better consultation process would be put in place in the next years.

Thank you for your attention.