Health and Human Rights with regard to Sanitation in Brazil

1/9 25 Apr 2013

Health and Human Rights with regard to Sanitation in Brazil

Jorge Queiroz

University of Bergen

2/9 25 Apr 2013

Introduction

The scope of this paper is to provide a general dimension of what is one

of the most vital and fundamental areas to human physical and mental health, and

needless to say standard of living, which is conventionally known as sanitation1,

with particular attention to how it is dealt with in Brazil, from a human rights, health

and legal perspectives.

Health, human rights and law have an extensive, long, intertwining and

complex relationship internationally, and water and sanitation occupy a vital space

in this field. When we speak of poor water quality and sanitation (which are

directly interrelated), we speak of illnesses, poverty and risks to society.2 Lack of

sanitation infrastructure also leads to devastating environmental problems, such

as destruction/pollution of water sources (rivers, lakes, phreatic surface, and water

basins), sea/shores, soil and air.

This particular area represents a major problem for developing and

underdeveloped countries3 – 2.6 billion4 low-income people are still without access

to improved sanitation worldwide5. Among the diseases caused by poor water

quality and sanitation are: diarrhoea, dengue fever6, hepatitis A, arsenicosis,

1 WHO definition: Sanitation generally refers to the provision of facilities and services for the safe disposal

of human urine and feces. Inadequate sanitation is a major cause of disease world-wide and improving sanitation is known to have a significant beneficial impact on health both in households and across communities. The word 'sanitation' also refers to the maintenance of hygienic conditions, through services such as garbage collection and wastewater disposal. 2 See infra, notes 9, 15, 16 and 17 .

3 World Bank/Global Practice Team Sanitation – The Political Economy of Sanitation: How can we increase

investment and improve service for the poor/2011 – There is ongoing concern that governments, at many levels, are not devoting enough attention and resources to sanitation services. Existing sanitation investments and service provision rarely place sufficient stress upon the distinct and urgent needs of the poor. Need to enhance the design, implementation, and effectiveness of operations that provide pro-poor sanitation investments and services. The ultimate goal is to improve health and hygiene outcomes. The Action Framework stresses the importance of strengthened relationships of accountability among citizens, civil society organizations, and government and other service providers. While studies came across evidence of corrupt practices and rent-seeking behavior, it was overall not identified as the predominant feature distorting sanitation investment decisions. There is evidence that civil society and the private sector not only can contribute to strengthening accountability but also can be reliable and trusted partners for delivering sanitation services and creating community demand for sanitation provision. 4 Human Development Report 2006 (UNDP 2006).

5 WHO/UNEP – Going back in history, before the industrial revolution, it was possible to withdraw and

consume water to everyone’s satisfaction However, times have changed as demographic pressure in the last three centuries (for example, 1 billion inhabitants in 1800, 2 billion in 1900 and 6.6 billion at the end of 2007) no longer allows for the management of water without cooperation among communities. 6 Dengue Fever (DF) and Dengue Hemorrhagic Fever (DHF)

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cholera, fluorosis, intestinal diseases, leptospirosis, malaria, schistosomiasis,

trachoma, typhoid.7 These illnesses will generate a host of other health problems,

many times causing permanent damage upon those infected, including death.8

Brazil Case9

Brazil has advanced in many areas of the water and sanitation chain. It

has reached a level of 81.1% of safe water and garbage collection systems10,

which is quite representative. Sewage collection and treatment infrastructure is

lagging behind and it is now among Brazil’s top priorities, together with the

development program for its garbage energy conversion systems11.

The vast majority of the population in Brazil is concentrated in

metropolitan centers which is the main cause of its sanitation problems. Today

only 46.2% of the population has access to sewage collection system12. Less than

20% of the sewage produced in urban areas is treated13. Sewage that is not

treated ends up every day ‘in natura’ in rivers, lakes, hydrographical basins and

sea, with severe damage to the environment and health of the society as a

whole14, more so on the poor living in its slums15 (favelas16) – over 11 million

people live in poverty clusters in Brazil (6% of the population).17

7 WHO/UNICEF 2012

8 The Water Project – NGO 2012 – over one-third of the world's population has no access to sanitation

facilities; in developing countries, about 80% of illnesses are linked to poor water and sanitation conditions; at any one time, half of the world's hospital beds are occupied by patients suffering from water-borne diseases; one out of every 4 deaths under the age of 5 worldwide is due to a water-related disease. 9 Brazil’s 1988 Constitutional Reform introduced the most modern, precise and extensive Statute of Rights

in its history – human rights, health, civil, social, cultural, political, and economic; a valuable set of constitutional guarantees. Following the recommendations of the Vienna Declaration – World Conference of Human Rights of 1993 – that each Member State established its human rights program, it developed Brazil’s Human Rights Program which was enacted in 1996, becoming one of the first Member States to comply with the recommendations of the Vienna Conference. 10

Ministry of Cities – SNIS 2010 (National System of Sanitation Data). 11

See infra, page 5, under Legal Framework. Diverse legislation establishing objectives for reaching higher levels of sewage treatment and generation of energy from garbage in agreement and collaboration with UN, WHO and The World Bank have been introduced in Brazil since late 1990’s (Ministry of Cities – SNIS 2010). 12

IBGE 2008 – Instituto Brasileiro de Geografia e Estatistica / Brazilian Institute of Geography and Statistics – Pesquisa Nacional de Saneamento Basico – National Data about Sanitation – In 2008, 56% of domiciles did not have access to sewage collection. 13

Agencia Nacional de Aguas/ANA – Brazil’s National Department of Waters 2012. 14

Agencia Nacional de Aguas, ANA, Brasil 2012 (National Department of Waters). 15

UN 2012 defines slum as a run-down area of a city characterized by substandard housing, squalor, and lacking in tenure security, combining to various extents the following particularities: inadequate access to safe water; little or no access to sanitation and other infrastructure; poor structural quality of housing; overcrowding; and insecure residential status (lack of personal/community land ownership). Slums are

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In order for Brazil to reach universal access to sanitation, it has to invest

substantially more than today – that is, 0.63% of GNP ($15.6 billion/year) when a

mere 1/3 of that ($5.4 billion/year) is currently invested18, since advances made in

the last decades have been largely offset by the rather high rate of population

growth.

“In socially and economically dynamic Brazil, persistence of sanitation

problems, although decreasing over time, remains a source of

embarrassment, as sanitation (especially sanitary sewerage) is

associated with modern society.”19

To put it into perspective, Brazil’s population went from 50 million to

almost 200 million people from 1970 to 2012 respectively. It is still characterized

by its dramatic inequality and concentration of income – in 2010 half of its families

lived on less than US$ 200 per month; the 10% richer accounted for 45% of total

income while the 10% poorer accounted for only 1%.20

usually inhabited by the very poor or socially disadvantaged. Slum buildings vary from simple, one to multi-layered, shacks to permanent and well-maintained structures. About one billion people worldwide live in slums and this number is expected to double by 2030 16

Brazilian Institute of Geography and Statistics (IBGE) Demographic Census 2010 – 11.425.644 people in Brazil (6% of the population) live in subnormal poverty clusters - slums (favelas), property invasions, gullies, swamp houses, and the like. These types of poverty concentrations are also formed by narrow alleys of difficult personal access – and access by any public service. The lack of services such as routine garbage collection allows rubbish to accumulate in huge quantities. The lack of infrastructure such as sanitation is also caused by the informal nature of settlement. Informal settlements also face the brunt of natural (tropical storms) and man-made disasters, such as floods and landslides. 17

This ultimate and structural social-economic absurdity (a true and enormous group of socially excluded human beings, a sub-society, sub-employed, sub-nurtured, surviving in sub-human conditions, submersed under poverty, deprived of their most basic and essential rights) is in itself one of the various catastrophic multi-dimensional consequences of an inefficient State which has, more acutely for the last 80 years, succumbed to corruption and mismanagement. Such consequences sweep through all segments of society – health, welfare, education, culture, safety, environment, sustainable development – leading to the dark, sub-world of alcohol, drugs consumption and dealing, prostitution, robbery, violence and crime; a destructive spiral where the lack to the right to dignity and to the universal right to life is characterized – needless to say, unaligned with Brazil’s Constitution and the Universal Declaration of Human Rights. In the past 20 years Brazil has awaken and has been implementing a comprehensive long term program to achieve universality in sanitation. 18

IBGE – Istituto Brasileiro de Geografia e Estatistica / Brazilian Institute of Geography and Statistics – Síntese dos Indicadores de 2009 19

The World Bank – WSP/Water and Sanitation Program, The Political Economy of Sanitation – February 2011 20

IBGE – Instituto Brasileiro de Geografia e Estatistica / Brazilian Institute of Geography and Statistics 2012

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Dengue fever and dengue hemorrhagic fever in Brazil21

Dengue fever22 is directly linked sanitation problems. It reappeared in

Brazil in 197623 and became critical in the end of 1990s due to the fact that

traditional methods employed were not effective and that the dengue mosquito

adapted quite well to the new environment created by the accelerated

disorganized increase of urban areas and corresponding number of informal

settlements (favelas and the like) together with the lack of sanitation.

With this scenario the Ministry of Health created the Program for

Eradication of Dengue24 in 1996.25

The appearance of a new serotype (dengue 3) in Brazil in late 1990s,

which in the period of only three months spread to eight states made it clear that

there was a high risk of a new epidemic of dengue fever (DF) and dengue

hemorrhagic fever (DHF).

It has been a major health/sanitation related problem since then.26 This

alarming fact led to the intensification of governmental actions to combat the

dengue in 2002 through formal/specific nationwide federal programs, a task force

among federal, state and municipal authorities which proved to be quite effective,

reducing the incidence of dengue by 73% during the first six months of 2004.27

21

See supra, page 2, introduction 22

Instituto Oswaldo Cruz – Dengue fever is transmitted by the Aedes Aegypti mosquito which belongs to the same family of that of yellow fever. Existence of the dengue virus in Brazil was proven by laboratorial analysis only in 1982. From 1982 to 2011 four types of dengue virus were identified. There is no vaccine to prevent dengue in the world. According to the WHO (2012) dengue has emerged as a worldwide problem since the 1950s and it is endemic in Latin America and Southeast Asia. The incidence of dengue has grown dramatically around the world in recent decades. Over 2.5 billion people – 40% of the world's population – are now at risk from dengue and as many as 100 million people are infected yearly. An estimated 500 000 people with severe dengue require hospitalization each year, a large proportion of whom are children. About 2.5% of those affected die. The threat of a possible outbreak of dengue fever now exists in Europe and local transmission of dengue was reported for the first time in France, Portugal, Croatia and other countries. 23

Ministry of Health (2007) / Instituto Oswaldo Cruz (2007). The Pan-American Health Organization (PAHO/WHO) relates greater incidence of dengue and its expansion to regions not affected before to the global warming effect. 24

Programa de Erradicacao do Aedes Aegypti – PEAa 25

Among the findings of the health authorities were the fact that dengue could be solved only on a mid/long term basis. Only in 1995 the reporting of dengue infections became mandatory in Brazil. 26

Brazil’s Ministry of Health 2002 – Epidemic Surveillance 27

In 2002 the Ministry of Health created the PNCD – Programa Nacional de Controle da Dengue (National Program for the Control of Dengue). Further on (2003) and within the PNCD, it created and coordinated the National Mobilization Program against the Dengue with the participation of 40 representative departments, agencies and organizations in the country. Incidence was reduced by 73% from the first six months of 2003 to the same period in 2004 – down from 300 thousand to 84 thousand people infected nationally. Brazil’s Ministry of Health issued an epidemic alert due to the dramatic increase of reported cases of dengue fever

6/9 25 Apr 2013

Nevertheless, it reached new epidemic levels in first quarter of 2013 (635

thousand cases/108 deaths in only 3 months) with an increase of 279% in

comparison to same period in 201228.

Legal Framework

Right to sanitation is inserted in right to health29 and is incorporated in

the UDHR30 – preamble and articles 1, 3 and 25. It is also found in articles 11 and

12 of the ICESCR31. Sanitation is disciplined by a number of international statutes,

such as: (i) Convention on the Rights of the Child (CRC) in its article 24.132 and

24.2.c33; (ii) Convention on the Elimination of Discrimination against Women

(CEDAW) art 14.2.h34; (iii) United Nations Economic and Social Council (UN ESC)

E/C. 12/2002/11 G/C 15, I.135, II.15, III.37a-i36, IV; (iv) UN ESC E/C. 12/2000/4

in the first quarter of 2013 where it registered an increase of 279% in comparison to same period in 2012. In a period of only three months from Jan-Mar 2013, 635.161 cases were registered, among which 1.243 were considered serious with 108 deaths caused by dengue haemorrhagic fever 28

See supra note 27 – Ministry of Health Evolution of dengue in Brazil - cases/year

Number of Cases (x 1000)

75 135 386 696 275 70 147 259 497 633 406 1.011 764 591

Deaths DHF

1 3 41 121 52 8 37 78 148 259 174 300 191 104

Year 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

29

WHO Constitution – Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without the distinction of race, religion, political belief, economic or social condition. 30

Universal Declaration of Human Rights 31

UN International Covenant on Economic, Social and Cultural Rights 32

CRC Art.24.1 - States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health 33

CRC Art.24.2 - States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (c) To combat disease and malnutrition, including within the framework of primary health care, through inter alia, (…) the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks to environmental pollution. 34

CEDAW Article 14.2 - States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: … (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. 35

Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. The Committee has been confronted continually with the widespread denial of the right to water in developing as well as developed countries. Over one billion persons lack access to a basic water

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G/C 14, I.12 which establishes that the right to health, including the underlying

determinants of health such as adequate sanitation facilities and safe and potable

drinking water, contains four interrelated essential elements: Availability,

Accessibility/Affordability, Acceptability and Quality (AAAQ-AP37); (v) Resolution

64/292 of the United Nations General Assembly which explicitly recognized the

human right to water and sanitation and acknowledged that clean drinking water

and sanitation are essential to the realisation of all human rights. It is among the

inalienable rights of human species, where everyone has the right to dignity, to life,

to a standard of living adequate for the health and well-being of himself and of his

family.

Sanitation is a theme addressed in Brazil’s Constitutional Reform of

1988. The constitution establishes how water and sanitation must be handled by

the three spheres of power – federal, state and municipal. It also determines that

all water resources including rivers, lakes and water basins are property of the

Brazilian State.

The principle of autonomy of the 26 different States and the capital

Brasilia, and that of distribution of powers are part of the essence of Brazil’s

constitutional pillars.

The constitution determines that all three spheres of power have the

political and administrative obligation to manage and control public health, to

protect the environment and control any and all forms of pollution (art. 23). Art. 241

establishes:

Art. 241 The three spheres of power shall discipline via legislation

the public partnerships and the partnerships of cooperation among

the three levels, authorizing joint-administration of public services

as well as total or partial transfer of responsibilities, services,

personnel and assets which are essential to the continuity of

services transferred.

supply, while several billion do not have access to adequate sanitation, which is the primary cause of water contamination and diseases linked to water. 36

In General Comment No. 3 (1990), the Committee confirms that States Parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. In the Committee’s view, at least a number of core obligations in relation to the right to water can be identified, which are of immediate effect: … (i) To take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation. 37

Plus AP – Accountability (Dr. Helen Potts – Accountability and the Right to the Highest Attainable Standard of Health – University of Essex – Human Rights Centre) and Participation (Dr. Helen Potts – Participation and the Right to the Highest Attainable Standard of Health – University of Essex – Human Rights Centre)

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Nonetheless, the specific matter of legislation regarding water systems,

sanitation, environmental protection and pollution control is under exclusive federal

jurisdiction which guarantees the harmonization of the system as a whole.

It must be noted that sanitation is inserted under the broader context of

Water Systems, art. 22 IV of the constitution, and that legislation related to the use

of waters, criteria to be adopted and priorities for its use are of sole federal

responsibility.

As determined by its art 21 XIX, federal law (Nr. 9433 of 1997) created

the Brazilian System for the Management of Water Systems38 and the National

Department of Waters – (L9984/2000)39.

Art. 21 XX prescribes that definition of directives for urban development,

including housing, sanitation and urban transportation, is also under federal

jurisdiction.

It is the responsibility of Congress and the President to provide

legislation establishing the rules that govern the area of Sanitation in Brazil. The

National Sanitation Directives and Policies are disciplined by federal law 11.445

(2007). It prescribes that public services related to sanitation need to comply with

the following fundamental principles:

Universality of access

Health and environmental safety

Efficiency and sustainability

Social participation

Safety, quality and regularity

Integration of sanitation infrastructure and services with the

efficient management of water sources

Brazil’s constitution determines that water resources are not part of the

public sanitation services. The use of water resources in public sanitary services,

including sewage collection, transportation and treatment, is subject to the federal

concession of right of use, to regulations and state legislations in accordance to

federal law (L9433/97).

38

Sistema Nacional de Gerenciamento de Recursos Hidricos 39

Agencia Nacional de Aguas – ANA (Ministry of Environment)

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Brazil’s continental size40, with near 200 million people to be serviced,

as well as the number of states and municipalities involved in the sanitation and

water supply processes, generates a multiplicity of principals and agents which are

involved in the complete process.

In observance to federal statute, Brazil employs a mixed system for the

operation of the sanitation services and stimulates cooperation among federal,

state and municipal levels. The result is a complex and gigantic network which

includes the 26 states, the capital and over 5570 municipalities.

As prescribed by law, in principle it is the responsibility of the

municipality to operate the sanitation system as a whole which, with the exception

of water supply, includes waste disposal, transportation and treatment, and all

interrelated services (control, public health, environment, and others) as well as

planning, construction and management of all necessary infrastructure.

In many cases such as the State of Sao Paulo, the system is operated

by a mixed capital corporation (SABESP) dully licensed to perform the sanitation

and water supply services in the greater metropolitan area of its capital (the city of

Sao Paulo) and other municipalities, which together consist of a total of 365

municipalities in the state. SABESP is seen as a world-class company – it

provides 100% treated water to 27.7 million people; sewage collection to 90% of

the area under its responsibility; sewage treatment to 88% of the area covered,

and it is on the way of achieving universality in these areas. It is the larger and

most efficient sanitation and water company in Brazil41.

It is important to observe that presently SABESP does not operate in

slums (favelas) because of legal, technical, operating and environmental

constraints42. The number of people that live in what is officially classified as

40

Brazil is the world’s 5th largest country, closely following Canada, China, US with Russia being an isolated 1

st. According to the World Bank Brazil is 5th most populated country in the world.

41 The Water and Sanitation Company SABESP (Companhia de Saneamento Básico do Estado de São Paulo)

is one of the largest sanitation companies in the world – it provides services to 67.2% of the population of the whole Sao Paulo State (41.2 million people), equivalent to almost twice the population of Belgium. The Sao Paulo metropolitan area alone has a population of 20 million people (Shanghai has approximately 23 million people; Beijing – 20 million; Mumbai – 18.4 million). Number of employees – 14,896; Municipalities serviced – 365, which include the large metropolitan area of the city of Sao Paulo (Sao Paulo state total – 645); Since 2002 its shares are listed in the Sao Paulo and New York stock exchanges; New horizons – in addition to the State of Sao Paulo, it is now ready to expand its activities to other states and countries. 42

Legal – no legal title of land (informal settlements), pathways do not exist for legal purposes / Technical-operating-logistics – narrow and winding (many times steep) alleys of difficult or no viable access; drug dealing and crime poses an additional problem / Environmental – many dwellings located in environmental sensitive areas (pollution, landslides, floods). Sao Paulo’s goal is to overcome these obstacles and achieve

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overcrowded subnormal poverty concentrations in the Sao Paulo metropolitan

area totals 2.2 million43.

Final Considerations

Brazil is a nation of contrasts, that carries the stigma of inequality which

places the country still far from fulfilling the right to dignity of millions of its citizens:

rich/poor, rich country/poor people, world’s 6th largest economy/85th in UDI ranking

(United Nation’s Human Development Index). It has a long-standing, structurally

poor social legacy of inequality and poverty with its origin in political-administrative

inefficiencies and corruption, with enormous health, environmental, educational,

socioeconomic and welfare hurdles to overcome.

In the area of sanitation Brazil has made significant progress in the last

decades. It has a sound legal framework to support the initiatives which are under

way in its route to universalization of the access to sanitation.

Brazil’s sanitation problems are quite complex and vary in accordance

to the region. Sao Paulo, the richer state in the nation, has by far the best

sanitation system and development program in the country; it is also the state

which invests the most in sanitation - 34% of Brazil’s total invested with 22% of its

population, and the objective is to reach universality in sewage treatment by

201944. Sao Paulo’s success in in achieving UN’s and WHO’s sanitation indices is

being replicated in other states aided by the greater awareness and participation

of the society that is monitoring the advances in these interconnected social, civil

and human rights’ areas.

Therefore Brazil is in the process of becoming the first developing

country to achieve universalization of sanitation systems which will be an

outstanding achievement.

universalization of its sanitation system by 2019. Brazil’s other states have similar objectives and are capitalizing on Sao Paulo’s successful experience. 43

IBGE - 2010 Demographic Census (Brazilian Institute of Geography and Statistics) 44

O Estado de Sao Paulo, April, 16, 2013. Ministry of Cities – National Department of Sanitation 2010.