A/HRC/27/55
1.
Failure to protect in the context of service provision
27.
Failures to protect rights 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 that fail to protect users’ rights. Violations may occur when
States (a) fail to effectively regulate and control service providers in relation to safety,
quantity, conditions of service or disconnections; (b) fail to regulate pricing to ensure that
services are affordable for everyone; (c) fail to prevent discrimination by private actors;
(d) fail to ensure that service providers extend services to marginalized households or
communities; (e) fail to require provision of reasonable accommodation of disability or
extenuating circumstances; or (f) fail to ensure that monitoring and complaints procedures
are in place.
28.
One example of enforcing the obligation to protect is an Argentine case in which the
court prohibited a private company from disconnecting the water supply due to nonpayment, relying on the International Covenant on Economic Social and Cultural Rights
(art. 11) and other human rights instruments, which are directly applicable in Argentina.23
The Greek Council of State recently blocked the planned privatization of the Athens Water
Supply and Sewerage Company, arguing that it could put public health at risk due to the
anticipated deterioration of water and sanitation quality.24
2.
Failure to protect resources or infrastructure from pollution or interference
29.
Failures to protect necessary resources and infrastructure relate to issues such as
(a) failure to protect water distribution or sanitation infrastructure from interference,
damage and destruction; (b) failure to regulate excessive exploitation of water resources by
third parties that leads to deprivation of water necessary for personal and domestic uses;
and (c) failure to develop and enforce regulation to protect water resources from
contamination.
30.
In the case of Sardinal,25 the Costa Rican Supreme Court ordered the authorities to
assess whether a permit should be granted to build a pipeline that would withdraw water
from an aquifer, in order to make sure that the pipeline would not deprive the local
population of water for personal and domestic use. Without certainty that there would be
sufficient water, the pipeline would violate the residents’ rights, including that to a healthy
environment. A French court held a public water company accountable for ensuring that the
water it provided was not detrimentally impacted by agricultural runoff. 26 The African
Commission on Human and Peoples’ Rights found violations, inter alia of the rights to life
and to health, owing to the failure of the Government of Nigeria to monitor the impact of
oil operations polluting water in the Niger Delta.27
31.
While there is a growing body of cases addressing the obligation to protect the rights
to water and sanitation, far too many violations continue. Many violations of the rights to
water and sanitation stemming from large-scale development projects – frequently
23
24
25
26
27
Juez de paz (Moreno, Buenos Aires, Argentina), Usuarios y Consumidores en Defensa de sus
Derechos Asociación Civil c/ Aguas del Gran Buenos Aires SA, 21 agosto 2002.
Decision of the Council of State 1906/2014 of 28 May 2014, available from
www.ste.gr/portal/page/portal/StE/ProsfatesApofaseis.
Sala Constitucional de la Corte Suprema de Justicia, Costa Rica, Sentencia 2009-000262, 14 January
2009.
Cour de cassation, Chambre civile 1, France, M. X c. Syndicat d’Adduction d’Eau du Trégor, 30 Mai
2006, No de pourvoi: 03-16335.
African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center
and the Center for Economic and Social Rights v. Nigeria, App. No.155/96, 27 October 2001.
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