Press statement by the Special Rapporteur on the human right to water and sanitation, Catarina de Albuquerque, at the end of her visit to Brazil, 9-19 December 2013

Version in Portuguese

Brasilia, 19 December 2013

“Lata d'água na cabeça,
Lá vai Maria. Lá vai Maria:
Sobe o morro e não se cansa.
Pela mão leva a criança.
Lá vai Maria.
Maria, lava roupa lá no alto,
Lutando pelo pão de cada dia,
Sonhando com a vida do asfalto
Que acaba onde o morro principia.”
Lata d'agua na cabeça por Candeias

The UN Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, has undertaken an official mission to Brazil from 9 to 19 December to evaluate the improvements and challenges the country still faces in realizing the human rights to water and sanitation. In a Press Conference that took place at UNDP’s headquarters in Brasília, she issued the following statement:

“I wish to express my thanks to the Government of Brazil for the invitation to visit the country, and also for the openness and support shown throughout my mission, which included unconditional access to all sites I had requested to visit. I would also like to thank the United Nations Country Team in Brazil for the excellent support given in organizing my visit.

During my mission I had the opportunity to meet with the Minister of Cities, the Secretary of the Ministry of Cities and his staff, several members of the Ministry of Foreign Affairs, the Executive Secretary of the Ministry of National Integration, several representatives of the National Secretariat for Environmental Sanitation, of the Secretariat of Planning and Investment, of the National Secretariat of Food and Nutritional Security, the President of FUNASA and several members of his staff, the President of the National Water Agency, the Technical Committee for Environmental Sanitation of the National Council of Cities, representatives of the Federal Prosecution Office, and local authorities from Rio de Janeiro, São Paulo, Fortaleza and Belém do Pará. I also met with the UN Resident Coordinator and Country Team, as well as representatives of the water and sanitation service providers and regulators – CAESB, CEDAE, AGENERSA, SABESP, ASSEMAE, CAGECE, ARCE, SAAEB, AMAE, SESAN and COSANPA. I also had the opportunity to meet with academics and civil society organizations and visited several communities in the Baixada Fluminense and the Complexo do Alemão in Rio de Janeiro, in the eastern side of São Paulo, in Itapipoca, Ceará and in Belém do Pará.

I would like to voice my appreciation to all those who have made this mission possible, in particular the civil society organisations, social movements, community leaders, and academics who guided me through the rural areas, informal settlements and favelas. I am deeply grateful to the many Brazilians I came across, who opened their homes to me and who have shared with me their problems, difficulties and aspirations in respect to the fulfillment of this right. Without their help, I wouldn’t have been able to obtain such a rich overview of the country’s reality.

Ladies and Gentlemen,

On the 28th of July 2010, the UN General Assembly, with Brazil’s favorable vote, has explicitly recognized the human right to water and sanitation. The human right to water and sanitation has been reaffirmed by the UN Human Rights Council as a right derived from the right to an adequate standard of living –enshrined in the International Covenant on Economic, Social and Cultural Rights, to which Brazil is a party. In this framework, and so as to allow any person residing in Brazil to address a complaint to the UN in case of violation of his or her social rights, including the human right to water and sanitation, I invite the Government of Brazil to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights as soon as possible.

The human right to water and sanitation determines that everyone has the right to water and sanitation that is available and both physically accessible and affordable. The service has to be acceptable and provided with quality for all, free from any kind of discrimination. The human right equally determines that States must progressively eliminate inequalities in access to water and sanitation – inequalities between rural and urban areas, formal and informal settlements, rich and poor segments of the population.

Brazil has made significant achievements in guaranteeing the human right to water and sanitation. Since 2000, the percentage of the population having access to improved sanitation has increased from 75 to 81% and open defecation has decreased from 9 to 4%. Access to improved water sources has increased from 93 to 97% during the same period. Moreover, the investments for the sector have increased significantly, and the National Sanitation Plan determines an investment of over 300 billion reais for the next 20 years.

Nevertheless, many challenges remain, especially in relation to access to water and sanitation for people living in informal settlements in urban centers or for those living in rural areas, as well as those affected by droughts. There are also significant differences in access to this right by specific population groups, such as the indigenous and black communities and people belonging to lower income quintiles. There are also deep inequalities in access to water and sanitation among different regions in the country.

1. Legal and institutional framework
First of all, I wish to commend Brazil for its efforts and advancements in realizing and guaranteeing the human right to water and sanitation for all. Even though the Brazilian Constitution of 1988 does not include an explicit recognition of the right to water and sanitation, it does recognize other rights, such as the rights to health, housing and food, which are all directly connected with the aforementioned right. At the same time, I would like to encourage a Constitutional Amendment so as to include the right to water and sanitation explicitly in the constitutional text.

The Basic Sanitation Law (Law 11.445) of 2007 incorporates a human rights approach in water and sanitation services. This is reflected in the principles of universal access, transparency of actions, protection of public health and environment, quality and regularity of services, affordability and social control. The Water Resources Management Law (Law 9.433) of 1997 ensures that water for human consumption is given priority over other water uses.

2. Planning

In the area of planning I would like to congratulate Brazil for its recent adoption and publication of the Water and Sanitation National Plan – a process I had been following closely for years! The PlanSab represents an indispensable initial step for guaranteeing the progressive realization of this right for all in Brazil, containing a vision for the sector in the next two decades. The Plan, a result of an ample participatory process, also incorporates the principles of equity, integrality, intersectoriality, sustainability, participation and social control. Moreover, PlanSab associates sector planning with a financial support of 300 billion reais by the federal Government, – the highest sum ever disbursed for water and sanitation in Brazil in such a period of time. I would have like to see a greater operationalization of the principle of equality and of the progressive elimination of inequalities in the Plan, and I hope that this will be included in the implementation of each of the defined targets, with a view to paying priority attention to the population who is most vulnerable, discriminated upon, stigmatized and poor.

Several entities and professionals with whom I met told me that the key test for PlanSab will reside on the way the country’s almost 6,000 municipalities will be able to develop local water and sanitation plans, based on the Federal Plan. Only then will the vision contained in the PlanSab become a reality for the more than 200 million Brazilians and only then will the municipalities be able to access the necessary financing to realize the right to water and sanitation. One of the biggest challenges consists in the lack of capacity in terms of human and financial resources by many municipalities to elaborate plans, projects and apply for funds. The smallest municipalities, the ones which are forsaken and have the lowest rates of access to water and sanitation, are precisely the ones with the lowest capacity to apply for funds. Because of that, proactive measures by the Federal Government are necessary to reach these municipalities – and these can easily be identified through the already existing data by SNIS, PNSB by IBGE or the Water Atlas by the National Water Agency. It is also necessary to establish a permanent mechanism to follow up to and monitor the implementation of PlanSab. Such mechanism should receive sufficient human and financial resources, as well as adequate powers.

3. Coordination at local and national levels

At the federal level, there are many bodies with direct or indirect competence on water and sanitation. In 2011 seven Ministries and 14 federal programs had competence in this area, which denotes a significant pulverization of competences. On the local level, and throughout my visits to small communities, I observed the same dispersion of competences and lack of coordination among different entities with responsibilities in the sector. It is therefore indispensible to ensure a greater coordination in the area at the local level.

On the other hand, there is a weak regulation of the sector in the country. Not all the states and municipalities have regulation in the area of water and sanitation and the existing one is at times quite incipient. I see the existence and the good operation of independent regulators as an essential condition in order to realize the human right to water and sanitation. Because of that, I urge the country to continue and accelerate the process of creating and strengthening water and sanitation regulatory agencies.

4. Water availability and quality

The human rights framework stipulates that water should be of quality and safe. It should not represent any threat to people’s health. In Brazil 60% of the population has access to water, but in 2011, 66 million people received water in their homes that did not fully meet legal drinking water quality standards. There is also a significant percentage of people suffering from diarrhea and other water and sanitation born diseases. Even in big cities, such as São Paulo and Rio de Janeiro – where the water serviced is allegedly of good quality –, people must filter water or drink bottled water.

Another problem I observed is the discontinuity in the service provision. Many of the communities I visited have water storage tanks, which contain water for human consumption. For instance, during my visit to the community of São João do Buriti in the Baixada Fluminense, I was repeatedly told that water is only available twice or three times a week. The situation is similar at the Complexo do Alemão, where water arrives only twice a week, and in summer this shortage might reach one month. The discontinuity of water affects not only its accessibility but also quality – since people are forced to store water at home under bad hygiene conditions, not to mention that still water is conducive to the propagation of dengue.

The legal framework for the human right to water clearly establishes that the allocation of water for personal and domestic uses, must have priority over any other water uses – industrial, touristic or for agriculture. The Brazilian legislation also recognizes this important principle. However, I received several complaints from civil society organizations, according to which the creation of extensive irrigation areas, namely in the semi-arid region, are drying up water wells used by people living in the region, using water for large-scale agriculture. There is also a fear that the transposition of the Sao Francisco River might not fulfill the aim it was established for – namely to ensure access to water for personal and domestic uses – and that the water is used for large scale agriculture in the region, leaving the local population without water or forcing it to migrate. It is hence essential that the Government ensures that commercial interests do not override human rights law and also that the human right to water is not put at risk.

5. Sanitation

In the area of sanitation, the low coverage does not match the advances of modern Brazil, where 52% of the Brazilian population still doesn’t have sewage collection, and only 38% of the sewage generated is treated. Brazil is one of the 10 worst countries in the world with lack of toilets with approximately 7 million Brazilians practicing open defecation on a daily basis. The lack of access to sanitation is particularly serious in the North, where less than 10% of the population has sewage collection, i.e. almost 14 million people do not have access to such services. Belém and Ananindeua in Pará practically don’t treat their sewage.

The low investment in sanitation results in a high cost for public health, with approximately 400 thousand people diagnosed with diarrhea in 2011, generating costs for SUS (Unified Health System,) of R$ 140 million. The majority of the population affected was children between 0 and 5 years of age.

Additionally sanitation companies might charge people who aren’t connected to the sewage network the corresponding fee. These companies may also charge them a full fee, even though they collect the sewerage but don’t treat it. This practice, besides unjustly charging the consumer, does not create any incentive for the providers to start treating the wastewater, since they are already being paid for the complete service. On the other hand I also witnessed several situations all over the country where people do not connect themselves to the sewerage network – even if the latter is available near their households. In these cases the raw sewerage is directly disposed of in the water streams or in open-air sewers. Even though this situation poses a serious threat to public health, the truth is that these cases are mainly due to the high connection costs, as well as to the sewerage tariff to be paid. Hence the State has the obligation to adopt public policies aimed at overcoming such situations - namely by granting small loans aimed at enabling people to pay for the connection costs. On the other hand, if there is a fairer tariff structure in the country, the percentage of the household income devoted to the sewerage tax will equally decrease.

The problems created by the lack of sanitation become more significant during periods of floods, such as the one I was able to witness in São João do Buriti in the Baixada Fluminense, when the sewerage mixes up with rainwater due to the fact that sewage is dispensed on the rainwater drainage system. I have also listened to complaints in relation to the lack of transparency regarding the use of resources destined to sanitation works, which never became a reality.

This situation is equally dramatic for the 29 million Brazilians who live in the rural areas and on isolated traditional communities. According to IBGE data, only 36% of the rural area residents have access to treated water, while less than 25% have access to systems of adequate sewage collection (sewage collection network and septic tanks). This sewage might be treated or not, depending on the municipality on which it originated. The remaining residents, more than 21 million people, don’t have any kind of sewage collection system.

6. Social participation and control

During the process of preparing the PlanSab I wish to highlight the ample participation of different segments of the population through the realization of regional seminars, public hearings and consultations. The National Councils for Health, Water Resources and Environment were also heard. In the framework of this public consultation, 448 contributions have been received, of which 42.6% have been reflected, wither fully or partially, in the final text. If one regards the proposals already contemplated in the original draft it reaches 67,8%.

It is also important to mention the creation of the Council of Cities (ConCidades) in 2004, an organ of deliberative and consultative nature, which constitutes an example of the participation in the democratic management of public policies (National Policies for Urban Development). In its current form, ConCidades is composed of 86 representatives –49 from civil society and 37 from federal, and municipal levels.

Alongside other programs, such as the PAC (Program for the Acceleration of Growth,), community participation is a fundamental pillar in project elaboration. Nevertheless, these and other mechanisms for participation are not mandatory. According to testimonies by residents of the Complexo do Alemão, within the scope of PAC, which incorporated an ample process of consultation, access to sanitation was identified by the communities as a priority. However, and despite this clearly identified recommendation by the community, priority was given to the construction of a cable car, and currently the open-air sewage, a very limited access to water, and the lack of waste collection continue to be the everyday reality of the Complexo’s residents.

Another example pointing to the need for strengthening community participation is the fact that the biggest public-private partnership in the area of sanitation in the state of Recife was decided upon by the state government along with the concessionaire, without any consultation either of the population or the municipalities.

7. Informal settlements

In spite of the great advancements achieved in the access to water and sanitation of a significant percentage of the population, there are still vulnerable segments of the population who live a very different reality, being excluded from accessing such services. Between 85 and 95% of the Brazilian population lives in urban areas, and the number of people living in informal settlements is quite alarming. Regardless of the legal title and the location of their residence, everyone has a right to water and sanitation, with no exceptions.

In accordance with the IBGE, it is estimated that only in the city of São Paulo, there are currently more than 2 million people living in irregular areas, areas of risk or other types of informal settlements. Since there are legal impediments for the water and sewage networks to be taken to these areas, some service providers simply disregard these residents, excluding them from their operational scope. I reiterate the urgency of taking water and sewage services to these segments of the population in a priority manner. Even in the case of these services being managed by state companies, the State continues to be the bearer of human rights’ obligations in the area of water and sanitation, holding a duty to guarantee that no one shall be excluded or discriminated upon in accessing this right.

In the case of informal settlements, the goal must consist in stabilizing the short-term access to water, bearing in mind the perspective that the community will be granted access to services on a more permanent basis within a couple of years. In such cases, low-cost solutions – such as water points operated by formal service-providers – would be acceptable for a limited amount of time. In this context, I call on the Brazilian government to urgently adopt all necessary measures to the access to water and sanitation for all people living in irregular settlements.

8. The drought

The semiarid region faces the worst drought in the last 50 years, deeply affecting the enjoyment of the right to water of a great part of the population. In response to that, the Government implemented the program “One Million cisterns”, providing provisional access to water to many families. During my visit I received testimonies of people that received the cistern, but questioned the quality of the water, and that it was not enough to attend their needs. The problem of the drought is not new, I urged the government to adopt structural measures to address this issue.

During my visit I had also the opportunity to visit one of the eight SISARs in the region, verifying how they function and its sustainability in small villages, providing the access to water and sanitation to the population. This system could be replicate in other regions in the country.

9. Financial accessibility to water and sewage

Affordability is a fundamental element of the human right to water and sanitation. The legal framework for the human right to water and sanitation does not mean that these services should be provided for free, but rather that the tariffs should be reasonable, as people shouldn’t be forced to make choices between various human rights – such as sanitation, health or food.

In Brazil there isn’t any rule or guideline on a federal level regarding water and sanitation tariffs. As it is, each state or Municipality is free to decide if they want to charge fees for such services. This means they don’t have any standards for establishing social tariffs and their values. Such a system does not guarantee financial accessibility to water and sewage for all, creating huge discrepancies throughout the country. At times, especially in places where private companies operate, the search for profit has led to the exclusion of the poorest. In every place I visited which is already connected to water and sewage network, I heard repeatedly complaints regarding the price charged for such services, and many people stated to be “suffocated” by the water and sewage bills. The concession of a social fee should not be linked to the consumption of less than 10 cubic meters a month per family – since most disadvantaged families are often more numerous.

I urge the government of Brazil to revise this tax system. . In my opinion, all the people subscribed to the Single Registry of Social Programs, those who are exempt from paying IPTU (property tax) and those living in subnormal settlements should benefit from a social fee. On the other hand, the water and sewage fee for the remainder of the population should not surpass 3% of the family budget. I have talked to many people in São Paulo who devote 10 or even 20% of their family budgets to the payment of water and sewage bills – which is clearly excessive and contrary to all the guidelines coming from the various international bodies. This excessive service price leads to a situation where people don’t have enough water for drinking, cooking and for their personal and home hygiene.

On the other hand, in the case of public sanitation companies, I support that profit distribution should be followed by State duty to reinvest its percentage in the universalization of this service. It does not seem acceptable to me that, in a state where access to sanitation to all is not yet a reality, and where the poorest segments of the population are excluded, the profits obtained are used to pay the current expenditures of the state. Such profits should be bound to the sanitation sector instead.

The progressive realization of the human right to water and sanitation for all does not necessarily mean higher costs. The different regions and scenarios demand the consideration of different technologies. There are low-cost technologies and solutions that would ensure enough and adequate access in the short and long terms to the segments of population who live in isolated rural areas or in informal urban settlements. Investments in low-cost and great efficiency technologies could reduce extraordinarily the quantity of financial resources necessary for the realization of these rights. Hence, the usage of such technologies – which are already being used in rural areas of other continents – shall be an excellent solution for the rural areas and informal settlements.

"To conclude, I end my mission to Brazil with a sweet and sour feeling. Sweet, because of the progresses made, the vision the government has for the sector and public commitment to support the most vulnerable. Sour, because I remember the voices and faces of the many Brazilians I met and talked with over the past 10 days and for whom the human right to water and sanitation still is a distant reality and who still live in the shadows of a rapidly advancing society. I believe however, that Brazil is well positioned do make even more progress in realizing the HRTWS, while giving priority to the most vulnerable, poor and marginalized populations"

Catarina de Albuquerque is the first UN Special Rapporteur on the right to safe drinking water and sanitation. She was appointed by the Human Rights Council in 2008. Ms. de Albuquerque is a Professor at the Law Faculties of the Universities of Braga, Coimbra and of the American University’s Washington College of Law. She is a senior legal advisor at the Prosecutor General’s Office in Portugal.

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