THE RIGHT TO WATER

Luiz Antonio Timm Grassi

1. The right to the uses of the waters in nature.

The existence of water in the three ever-changing physical states within a hydrological cycle has made life on planet Earth possible.

Besides being essential to human life and health, water is indispensable for ecological balance and social development.

Without water, a basic environmental component, our planet would not be the home of all known forms of life. As we know, life comes from the waters. And waters enable and maintain life by means of the hydrological cycle.

Besides that, waters have always been indispensable for the social and cultural development of human kind. Civilizations relied on the presence of waters as a source of life just as, in their absence, whole cultures declined and even disappeared.

Nowadays, with the demographic and economic growth, the uses of waters were multiplied and demands have grown fast, although the global amount available remains the same. Human and animal supply, industry, agriculture, navigation, electrical power generation, fishing, sports, dilution and biodegradation of urban and industrial sewage, among others, are applications that have been more and more intensified both locally and globally.

Besides that, the special distribution of waters is not uniform: from desert to humid zones, the presence of this precious substance is largely discrepant.

Furthermore, in most parts of the planet, the dynamic aspect of the hydrological cycle itself, contributing for the continued renewal of planet vitality (cycles of variable periodicity of rain and dry seasons, floods and droughts), brings about both the lack and excess along time. In other words, we may not rely upon having enough water wherever and whenever needed.

Thus, considering the limited amount available as well as the increase in the number of uses, there is a trend of global scarcity and actual local scarcity, especially where there is a permanent or temporary condition (excess, as opposed, may as well affect many of the uses). Localized scarceness, up against a growing number of uses in a same region, tends to worsen the situation.

On the other hand, we shall consider that water is a means that is receptive to the dispersion of other substances and that water bodies are natural recipients of any materials carried on from the soil or directly dumped into them. Therefore, they are subject to alterations that are mostly negative and regarded as pollution.

Since the physical state and the quality determine the possibility of good use in every case (for instance, in the case of human supply or for balneability, quality issues are quite restrictive), it is not just about having water available in some place, at great amounts: there must be quality compatible to the uses we wish to make. Thus, scarceness may be due to the lack of proper quality in the case of certain uses.

Having been tackled the issue of scarceness (effective or potential; permanent or seasonal) it is worth acknowledging that natural waters cannot be regarded as an inexhaustible “free” (in the sense of Economics) good, but rather limited by availability versus demand constraints, hence an “economic good”. Such acknowledgement does not imply any kind of disqualification regarding the environmental and social importance of waters and water bodies. On the contrary, from the statement that natural waters are an economic (scarce) good, we may infer that we shall no longer rely on absolute availability for all users, simultaneously, in any circumstance, without interfering with others, competing with them or even making them unviable: in a growing number of cases, the use of waters from a river, a lake or any such source requires not only the sharing of consequences but also the accountabilities it brings about. Clearly and explicitly acknowledging the economic nature of water as a natural resource in all its forms of occurrence, is an important step to prevent it from arbitrary appropriation, excused by arguments such as it being “a gift from nature” or, based on the priority principle (“first come, first served”).

The picture described generates competition among uses, raising internal problems for users of the same sector and among the several competitors.

Everyone should be aware of their dependence on a common patrimony: supply sources – seas, rivers, lakes, fountains, underground water, water sources or even glaciers and polar ice caps, however, the traditional notion that water is inexhaustible and that water bodies are imperishable keeps and reinforces a predatory and wasteful attitude. Water bodies continue to be wasted and harmed. And being aware of its scarcity does not automatically lead to solidarity. On the contrary, there is more and more dispute and conflict over the use of water.

It is not enough to say, thus, that the waters running around the planet are to be considered as an economic good.

In this respect, it should be checked whether this economic good might be defined as a public or a private good. Two types of considerations define the matter: first, the environmental and social importance of water; its essential aspect to life and human activities claim for a ‘public good” definition; second, the very natural features (occurrence in a dynamic and permanent hydrological cycle, that combines fluidity, changes in the physical state and integration with other means or substances) prevent it from being considered merchandise or a private good as defined in the context of Economics – “rivalry in the use” (as a privilege of one user at a time) and “outcast” (as excluding those who cannot pay for it). For all this, waters should necessarily be regarded and proclaimed as a “public economic good”.

Reinforcing this idea, the situation laid out before, regarding competition and conflict, claims for the intervention of a higher socially representative power that shall be a mediator, acting as a judge between conflicting parties and overriding the mere supremacy of force. In other words, there is a need of a public management to be carried out by the State by watching over the quantitative and qualitative conservation of waters, rational uses and fair partaking.

This seems to be the predominant reasoning in the world scenario today, be it in national or international contexts.

In brief:

- water is an essential good to life and society

- water on the planet Earth is limited

- concerning its uses, natural water is scarce and, thus, it is an economic good

- water is a public good

- the public management of natural water is required in a way such that it accounts for the protection of natural sources, the quantitative and qualitative conservation of water and its rational use and just sharing.

1.1. The right to the uses of waters in the national context

Based on the comments above, there is, in our country, the consequent adoption of constitutional principles (in the Brazilian Constitution, all natural waters are public, partly federal, in part state-owned). Therefore, in Brazil, there are no private waters and neither do they belong to all people, indistinctly. There is no acknowledgement of private properties over rivers, lakes and underground water. They are State goods (State meaning Federal Union plus member states). The Federal Government, by constitutional design also, is required to “install a national system for the management of hydric resources and the definition of criteria for warrants regarding the right to use water” (Clause. 21,XIX). This is about compelling the Public Power, on behalf of society, to watch over this public good, managing its conservation and its uses in a sustainable environmental and social fashion. This has been achieved by means of the “national and state systems for the management of water resources”, which is regulated by the Federal Act 9433/97 and by corresponding state enactments – in Rio Grande do Sul, Act 10.350/94. This regulation follows principles of decentralized and participatory government.

Therefore, all forms of water use depend on legal permits (warrants) made effective by participatory management and must make explicit the mutual accountabilities of both the party giving and the party given the consent, and hence extended over to all other users regarding the conservation of the asset, without any perpetuity guaranteed or any merchandise power transferred to third parties. The consenting Public Power must, thus, apply the rules approved by the co-managing board (the Committee of the Hydrographic Basin) in order to rank up the different uses, considering, in all cases, by legal determination, the use for human supplies as a top priority.

Besides that, the system adopted by the country and the states for their respective water management, relying on hydrographic basins as their planning and action units, shall be regardful of basin plans as well as national and state plans as the guidelines to the process. Besides the warrants as a legal control tool, the system should account for the application of fee collection for water using in the form of a single public price, which is an economic scarcity-fighting tool as well as for rational use purposes. Note that such public price shall not be mistaken for supply fees paid for drinking water and sewer system services and its effective collection depends on the deliberation of the users themselves and it depends also on the guarantee that the resources generated by the fee collection be deployed in the execution of every basin. In the case of Rio Grande do Sul, the State Constitution emphatically determines that resources deriving from water use collection be applied exclusively to that very hydrographic basin.

Based on the explanation above, we may state that:

- in the national context, all have the right to the access and the use of natural waters and their sources, provided that its condition as a public good and the guidelines hence deriving are regarded, being private or sector interests subordinated to social and environmental interests;

- the conservation of waters and their natural supply sources, as well as the fair partaking of their uses must be achieved by the competent public management through the application of legal precepts based on the active participation of society;

- the national and the state water resource management systems are legitimate and valid tools to make effective constitutional principles and to entitle citizens to rights concerning water issues.

1.2. The right to waters in the world context

Different authors deem Brazil to have 8 to 16% of the (surface and underground) fresh water occurring in the planet. Despite an unequal distribution, the national situation is privileged in relation to the majority of countries.

Be it due to natural conditions or specific historical development facts, the quantitative scarceness of water and the one caused by pollution and the deterioration of water bodies presently afflicts several regions and countries around all continents. The growing demand originated by the increase in population and by economic growth (still, almost totally based on an economy that is disregardful of environmental sustainability principles) has caused waters, specially fresh water – the least occurring kind on the planet – and its fountains, to become a major concern regarding considerations and preventive actions by governments, business corporations and non-governmental organizations. For some time now, the specialized literature and the press have put forward the idea that the dispute over water may well be the great conflict in the 21^st century.

Without a doubt, waters (in all its occurrences: in seas, on the surface of continents, underground, on polar ice caps) should be considered one of the most important common goods by human kind. Based on the arguments presented above, its qualification as a private asset or as merchandise should be discarded. The water should have the public good statute ruling over the whole planet – which is not yet the case in several countries. The private ownership of water bodies of any kind and the transformation of water in some commodity should be banned not only from national acts but also from guidelines concerning international rights.

Even if water and water bodies started to be regarded as public goods all around the world, there would still be the issue of setting the management forms to be followed. Besides the cases of waters clearly shared by all peoples, such as ocean and polar waters, there are other situations: surface and underground waters shared by two or more nations, and strictly national waters (inland from their origin). In the two first cases, it is urgent that the international community discusses guidelines for the protection and the conservation of the patrimony, as well as its equitable use as subject to criteria of social and environmental interest. Obviously, it will be most necessary to define international principles to guide public policies on water issues that shall rule effectively at a world scale.

It is also important to increase more narrowly bound and compatible national management forms, especially between those nations that share inland waters.

Not only in the case of shared waters but also (specially) in the case of strictly national waters, it is most important to stress the accountability of the nations involved, making sure that national autonomy is very assured. To refer to a patrimony belonging to human kind does not mean to abstract the waters of a country from its national patrimony (meaning the share of water that a nation exercises effective domain over). In the perspective of international acquaintance based on the principle of sustainability, the national domain power over its territorial waters gains a sense of accountability of watching over their due share, concerning other peoples.

Water resource, as a natural good that is essential and limited will, probably, be the first great trial to the ability of living together and surviving on Earth.

Therefore:

- it is required and urgent that the peoples and the nations recognize the vital importance of water as a scarce environmental good and that they adopt a worldwide policy to protect it, defending it from becoming private property and a tool of power;

- each nation is responsible for its due share, requiring the international community to account for the corresponding rights and duties, in observance to national sovereignty requirements;

- waters shared by more than one nation should be a commonly managed object, based on pacific relationship and achieved through effective actions regarding protection and the good use of the fountains

- the waters of the planet must be a factor of peace and not war

3. The right to drinking water

Even if the liquid – not salty – portion is undermost in relation to the total amount, this is the share to be made best use of, be it directly, be it after purification, for the noblest use of all: human feeding and personal and home hygiene supplies.

It is fundamental that, concerning the “issue water”, “human supply” is distinguished from other uses because of its specific character and special importance.

Drinking water is indispensable to human life and health. Since science has proven the relation between contaminated water and the conveyance of diseases, the supply of adequate water for drinking and for the preparation of foods and personal hygiene, it became part of the priority rights for all citizens. Besides individual welfare, treated water availability is regarded as determinant of social and economic development.

For all these reasons, universal access to drinking water delivered to all homes should come first into the agenda of every public policy referring to health, environment, welfare or urban and regional development. The use of water for human supply purposes, in the form of urban distribution systems is the most important and the noblest among the uses of water and their natural sources, which is accounted for by the Brazilian legal system.

Nowadays, the adequate supply for billions of individuals represents one of man’s major challenges. The scene is complicated by several factors:

- the worsening of quantitative scarceness of water (more crucial in certain regions) due to competition with demand-based uses, such as irrigation;

- the increase of good quality water scarceness (both surface and underground) due to fountain degradation because of pollution resulting from all kinds of activities, also generated by human dejects themselves that are improperly dumped into water bodies;

- the deterioration of the water bodies themselves by intentional or non-intentional interventions (river dams, rectifications, deforesting, mining on water tables, erosion, reckless perforation of wells);

- the natural balance in the distribution of waters, spatial (dry and humid regions) or over a time line (periods of draughts, times of floods), that worsens local scarceness in many different ways;

- the magnitude of the demand and the endless financial resources thereafter required facing lower quality fountains, or the growing distance of adequate waters, investments required to the installation of equipment and operations;

- the wasteful act at worrying levels, due to operational failures of the supply system or the reckless use by users.

Facing such scenario, in which the consideration of this use as essential is confronted with scarceness, making the water potable treatment process and distribution more expensive and transforming drinking water in an ever price-increasing good, there are two alternatives:

- the adherence to market rules, starting to consider drinking water as merchandise at a price defined according to production costs and user affordability (and, of course, regulated by competition rules) or

- the regard to the social character of the service, acknowledging drinking water as a public good that is priced by some policy that acknowledges the universal right of access confronted with the ability of society to face up against the respective costs.

Obviously, in the first case, there is the adoption of a market price that shall serve as a biding parameter and secondly, the social interest and the adoption of tax-regulating mechanisms that are not merely economic.

It is worth noting that the subordination of drinking water supply services to market rules is subject to the present situation of the economically globalized world and all of the implications thereby: potential or effective dependence on the two or three “water industry” tycoons who already dominate great part of the service, all over the world, preference or exclusivity given to consumers capable of paying the price imposed by the market, priority to localities and regions where production and distribution conditions feature the lowest costs and the highest profitability, and the consequent subordination of the whole service to the economic domain, even at the expense of relevant social benefit.

We should also remember that the supply of drinking water is necessarily collective and that it makes up a monopoly, i.e., a user cannot individually choose their supplier, since there is no room for more than one in each locality.

Radically speaking, the fundamental right to this essential service, associated to operational constraints, necessarily leads to public management, i.e., state-managed or delegate organs, with concession rights regulated by public policy rules that clearly subordinate investment and price mechanisms.

It is important to consider that the home treated-water distribution consequently generates a proportionally larger amount of sewers, which need to be placed away from these homes and to have their pollution levels reduced before being dumped into water bodies. Thus, these two services shall have, as a requirement, an articulated management, which is part of a broader environmental sanitation management (still, this includes solid residue collection and disposal, rain water drainage, sanitary disease control). The department interacts with public health, environment and hydric resource players, however keeping its specificity. By the way, these four segments of the public management should not be detached, neither mistaken.

Considering the comments above, stressing the importance of the distinction between the management of water (hydric resources, natural waters) and sanitation (including, especially, the supply of drinking water) is not overstated regarding public communication. Likewise, it should be stressed by the legislator, the administrator and the educator. Distinguishing between “fee collection for the use of water” and “fees for sanitation and drinking water supply”, for instance, is fundamental. Advocating for the public character of hydric resource management and a similar position in respect to supply services should also be placed in due terms and contexts. Without this, there is the risk of mistakes and even harm to the defense of social interests.

In such a context, we may, thus, clearly state that:

- universal access to drinking water is a fundamental right shared by all;

- human supply is the most important use of waters and as such, it should be given regard by hydric resource management systems;

- the water supply to populations should be object of public management within a broader environmental sanitation management.

Porto Alegre, 11 March 2004