Abstract
The international protection given to the right to water has increased over the last decades, with two United Nations’ resolutions establishing a freestanding right to water in 2010. Several countries have a right to water enshrined in their constitutions, while in other countries, this right has been recognised by the courts. This study aims to assess whether and how Brazilian courts are deciding water-related conflicts using the “right to water” frame, what the content given to this right is, and whose rights are protected. We created a comprehensive database of decisions issued by Brazilian courts at different levels containing the expression “right to water”. Our main findings are that the great majority of decisions are from lower courts and were issued on individual cases related to water supply. Further, we have seen that courts are frequently prohibiting the disconnection of water supply services when extreme vulnerability is argued. The same has been seen in other Latin American countries, such as Argentina, Colombia, and Costa Rica, with the one main difference that in these countries, the right to water has been carved out by the Constitutional Courts. The Brazilian Federal Supreme Court, which has the last word on the interpretation of the constitution, has not issued any decisions establishing a right to water, but there is legal mobilisation aiming for this and using UN resolutions as a key argument.
Highlights
Brazil is one of the world’s richest countries in water resources, yet conflicts around water are on the rise
This paper provides an overview of decisions by Brazilian courts where the “right to water” frame is used to decide water-related conflicts
We have identified that the great majority of decisions that address the “right to water” are from lower courts and were issued on individual cases related to water supply
Summary
Brazil is one of the world’s richest countries in water resources, yet conflicts around water are on the rise. Several pressing issues recur: the exploitation of water resources located in indigenous peoples’ lands, both for energy production and mining activities; concerns regarding environmental protection of water sources; and the promotion of basic sanitation improvements. Such issues are present in other Latin American countries, and the region has witnessed strong mobilisation around water rights and for water justice in the last decades, with the “water war” against privatisation of water supply utilities in Cochabamba, Bolivia, in the early 2000s as the most well-known event [1,2,3]. We reference cases from other Latin American countries with the help of secondary sources aiming to situate our findings within the region’s context concerning the construction of the right to water by national courts
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