Regulating the WASH sector from a human rights lens
The most disadvantaged always get hit the worst
In January 2018, Cape Town (South Africa) made global headlines[1] when it was announced it would become the world’s first metropolis to run out of water. After 3 consecutive years of severe drought leaving reservoirs perilously low, local officials announced the city was inexorably heading towards Day Zero[2]. That doomsday, initially set for April 12, brought in a countdown clock for the nearly 4 million residents of Cape Town. An extensive water demand management program was put in place to reduce water use and consumption. This program included measures such as restricting supply through the installation of water management devices, increasing water tariffs to punish households using more than the targeted maximal, reducing pressure in the network to tackle leakages, and employing an intense information, education and communications campaign to influence consumer behavior[3].
Almost two years later, and despite Day Zero being pushed back indefinitely, limited, unreliable, and unaffordable access to water is still a reality for many Capetonians. A recent study by researchers from the University of Cape Town reveals that the brunt of the water demand management program was — and still is — borne by the most disadvantaged households, in particular those living in informal settlements and peri-urban townships. Underserved by the City’s water utility, these households rely on free but scant communal taps, leaving them with no other option than queuing for long hours and fetching less water than they need[4]. Unfortunately, the disproportionate burden faced by the poorest and most vulnerable populations in the depths of Day Zero is not restricted to Cape Town. According to the World Resources Institute[5]’s 2019 working paper on urban water crises, in many other cities of the world, such as Sao Paulo (Brazil), Nairobi (Kenya) and Bengaluru (India), where water restrictions and rationing schemes are (or were) implemented, low-income and informal households get hit the hardest.
Regulation to look after the most disadvantaged
As shortages become more acute and prevalent in many parts of the world, one key question emerges: how can States — and their governmental authorities — be held accountable for not looking after the most disadvantaged?
An answer to this question can be found in the role and responsibilities that regulatory bodies play in the human rights framework. As explained by the Special Rapporteur on the human rights to safe drinking water and sanitation[6] in his 2017 report on service regulation, regulatory actors must ensure that [governmental authorities’] policies, procedures and activities are compliant with the State’s international human rights obligations[7] in relation to the rights to water and sanitation.
This means that regulatory actors contribute to the human rights to water and sanitation, by amongst other things, taking the appropriate measures to monitor how utilities comply with standards that are in line with the human rights to water and sanitation, and to ensure that they are held accountable for non-compliance.
This also means that States must ensure that the rules and regulations set the activities of those exercising regulatory functions to contribute to the enjoyment of human rights without discrimination of any kind. That is why the role of regulation has been steadily gaining ground in the water and sanitation sector. The idea is that such regulators will be able to oversee services, and ensure that citizens — especially the most disadvantaged — are provided with the services they need and deserve.
Recent calls for more regulation
In South Africa, for example, various organizations[8] are championing the establishment of an independent regulator that facilitates an efficient and effective management and governance of services, and prevents future crises. In India, the Special Rapporteur recommended[9], in light of his 2017 country visit, the establishment of an independent regulatory mechanism to monitor the water and sanitation sector, and now the central government[10] is pushing for the creation of independent regulators in each and every state .
On a global scale, the International Water Association[11], through its Lisbon Charter, has been advocating for institutionally, functionally, and financially independent regulatory authorities to safeguard the services provided to all segments of the population. Nonetheless, independence from the government may not be always realistic or desirable. As the Special Rapporteur explains, 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.
Furthermore, when discussing regulation for WASH services, it is worth remembering that there are different regulatory models and institutional arrangements that can be put in place. This includes self-regulation, regulation by contract, or regulation by a separate regulatory body. The most appropriate regulatory model, as stressed by the Special Rapporteur, differs from country to country and depends on the general regulatory framework, the levels of institutional capacity and the types of problems that must be addressed. The crucial point is that, regardless of the model adopted, regulatory actors must be able to undertake their three main core functions — i.e., setting standards, monitoring compliance and ensuring accountability (which are detailed in Table 1) — in an independent manner.
Table 1. The core functions of regulatory actors (source: summarized from the Special Rapporteur’s 2017 report on service regulation).
The challenge of regulating informal provision
Yet, in this discussion on service regulation, it is equally important to note the challenge of regulating WASH services in rural areas and peri-urban informal settlements. In such underserved areas, many households have no choice but to turn to informal, small-scale providers that operate beyond any institutional oversight. Regulating these actors might not be an easy endeavor, but it is instrumental in guaranteeing the compliance of the services provided with human rights standards. On the question on how it can be done, the Special Rapporteur clarifies that 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, […] it is important that regulatory instruments and the institutional set-up chosen be adopted to the nature of small-scale service provision.
The conclusion? A human-rights based regulation to avoid an eternal Day Zero for the most disadvantaged
In the shadow of looming shortages, a human rights-based approach to service regulation is a pre-requisite in building a solid base from which to improve the governance and performance of the WASH sector. This human rights lens, coupled with other technical measures, would bring about a much-needed shift in WASH management practices that address the mounting pressures of population growth, urbanization, inequality, and climate change. And that, ultimately, avoid that Day Zero becomes everyday for the most disadvantaged.
*This post was prepared as part of the 2020 campaign to celebrate the 10th anniversary of the UN General Assembly on the human right to water and sanitation: a campaign by the UN Special Rapporteur on the human rights to safe drinking water and sanitation.
For more information on the campaign see here.
Footnotes:
[1] Headlines from January 2018 include: “Will Cape Town be the first city to run out of water?” (BBC), “Cape Town could become first major city in world to run out of water after 90-day warning” (The Independent), “Cape Town Is 90 Days Away From Running Out of Water” (Time), “Cape Town faces Day Zero: what happens when the city turns off the taps?” (The Guardian), “Mad Max Scenario: Cape Town Will Run Out Of Water In Just 90 Days” (Forbes), and “Why Cape Town’s water could run out in April” (The Economist).
[2] According to Cape Town’s Day Zero and Water-Related FAQs and Dam Levels reports, Day Zero is the day on which water levels of the six reservoirs supplying Cape Town plummet to 13.5% of capacity. This is because the last 10% of the reservoir levels is difficult to extract. Under the Day Zero scenario, the majority of the municipal water network would be shut down and taps turned off, leaving only vital services with access to water. Water would be distributed through communal standpipes (around 200 collection sites) and limited to 25 liters per person per day.
[3] As part of this information, education and communications campaign, the City of Cape Town released various web-based applications such as: a city-wide map to show water consumption on a household level, a dashboard to display weekly trends in dam levels, consumption and augmentation progress, and a calculator to educate citizens on how much water they use every day. The water map, in particular, was a controversial intervention that was not well received by the residents of Cape Town, as they felt it was a “naming and shaming” tool that violated their privacy.
[4] According to official estimates, the roughly half a million people living in informal settlements (i.e., one in every eight persons living in Cape Town) use less than the basic need amount. This is because water is heavy to carry: a household of four would need to carry 28 buckets of water every day to use the 50 liters per person restriction. As a result, these Capetonians consume merely 5% of the city’s total water supply.
[5] The World Resources Institute (WRI) is a global research organization that analyses and designs solutions to seven global challenges — climate, energy, food, forests, water, sustainable cities, and the ocean — from four lenses — business, economics, finance and governance.
[6] Water and sanitation were recognized as human rights by the United Nations General Assembly (resolution A/RES/64/292) and Human Rights Council (resolution A/HRC/RES/15/9) in 2010.
[7] Under international human rights law, States have three obligations: respect (i.e., to refrain from violating them), protect (i.e., to ensure that third parties do not violate them), and fulfil (i.e., to ensure that there are laws, structures, mechanisms and resources that facilitate, promote and provide them).
[8] In December 2018, the Organisation Undoing Tax Abuse (OUTA) and the Water Shortage South Africa (WSSA) called for an independent regulator to address the Department of Water and Sanitation’s “flawed” regulatory function.
[9] In the 2018 report on his mission to India, the Special Rapporteur provided 20 different recommendations to the Government, one of them to “establish an independent regulatory mechanism with adequate financial and human resources to monitor the implementation of the human rights to water and sanitation, including all the normative content of those rights” (recommendation d).
[10] In July 2019, The Ministry of Jal Shakti — which was formed in May 2018 by merging the Ministry of Water Resources and the Ministry of Drinking Water and Sanitation — nudged state governments to establish water regulatory authorities in order to bring some oversight over water usage and pricing.
Further reading materials:
- Friendly version of the Special Rapporteur’s report on service regulation and the human rights to water and sanitation (EN, FR, ES)
- Official version of the Special Rapporteur’s report
- Leaflet — Tools for transformation: Service Regulation (EN, FR, ES)
- Statement made by the Special Rapporteur at the 36th session of the Human Rights Council in September 2017
- Quiz on service regulation
