Water Justice: The Case of Brazil

• Date: 01 March 2018

3-2018 NEWS & ANALYSIS 48 ELR 10211

Water1 is directly linked to health, wealth, and the

fertility and productivity of the land, and as such

presents—simultaneously—ethical, economic,

and political questions, a s well as legal concerns. Conven-

tional scientic wisdom posits that there is no life without

water. is inextricable inseparability, a cliché even among

laypersons, has indelibly marked the trajectory of human-

kind, so much so that “nearly every ancient society enjoyed

close spiritual relationships with water.”2 From the baptism

of Jesus in the Jordan River to ritual Hindu bathing in the

Ganges even today, the purifying gift and sacred nature

of water have always expressed universal characteristics of

both past and present cultures.3

Human life and dignity unquestionably occupy a central

position in today’s legal systems. Logically, water—under-

stood as an absolute necessity or the sine qua non of our

very existence—should be accorded the same maximum

priority by law. is intuitive step necessarily demands

the inclusion of water among the fundamental values that

guide human relations in both rural and urban areas.

In other words, just like life itself, water demands the

greatest possible attention and care from all of us, but in

a very special way from legislators, administrators, and

judges. Notwithstanding this necessarily high priority for

1. is Comment is focused on freshwater. “Water” and “water resources” (or

hydric resources) are used as synonyms, though this would not be entirely

correct in technical terms, since “water is the natural element, unbonded

to any specic use or utilization. It is the genre. Hydric resources are water

as an economic good to be utilized precisely as such.” Cid Tomanik Pom-

peu, Águas Doces no Direito Brasileiro, in Á D  B: C

E, U  C 602 (Aldo Da C. Reboucas et al. eds.,

Escrituras 1999). Currently, the distinction is legally irrelevant, since law

systems regulate—or should regulate—water in the broadest possible sense,

even when there is no direct economic interest involved, for example, when

it protects ecological ows or precious aquatic ecosystems per se.

2. B F, E: A H  W  H 331 (2011).

3. A F, L P J  C ’E: C-

   R  ’A  O C

31 (2012).

water, the reality of legal and judicial treatment of water,

viewed from a comparative law perspective, is still terribly

inadequate and far from achieving this rational and self-

evident expectation. us, one speaks of a “water crisis,”

a global phenomenon marked by unbelievably dramatic

episodes, extending far beyond the local-level tragedy of

having to ration drinking water in large cities, such as São

Paulo and Brasília.

Despite the gravity of hydrological degradation, there

are signs that allow for a certain degree of optimism. One

indication of change is the growing public awareness of

the urgency of taking concrete measures—locally, nation-

ally, and internationally—to protect freshwater resources

through legal rules and institutions, though a sucient

level of political will may still be lacking for a truly eec-

tive move in this direction.4

Failings in the design and enforcement of regulatory

frameworks must be included among the multifaceted

causes of the enormous disconnect between, on the one

hand, perceptions of the importance of water and, on the

other, impactful public and private measures aimed at pro-

tecting it. Viewed in this light, today’s water crisis should

be tackled simultaneously as a legal crisis and a judicial cri-

sis, since our inability to respond to water injustice can be

traced to serious deciencies in the way the law and judges

deal with this precious resource.

In most countries, legislation regulating water and its

uses is not lacking. However, with discernible exceptions

here and there, traditional legal regimes and case law in

developing countries either fail to break away from old

and outdated concepts and institutions—inherited from

ancient agrarian societies, such as Roman law, or the later

4. Weak or lack of enforcement is a major problem that globally aects the

credibility of environmental and water laws. In his seminal article on the

Brazilian pollution control system, Roger Findley correctly pointed out in

1988 that dierent circumstances can be blamed for the enforcement gap

observed in developing countries like Brazil, but “the primary factor has

been a lack of political will.” Roger W. Findley, Pollution Control in Brazil,

15 E L.Q. 30 (1988). irty years later, this is still an accurate as-

sessment of the situation.

Water Justice: The Case of Brazil

by Antonio Herman Benjamin

Antonio Herman Benjamin is a Justice at the National High Court of Brazil (STJ), Chair of the

World Commission on Environmental Law (IUCN WCEL), and Secretary General of the United

Nations Environment International Advisory Council for Environmental Justice.

Author’s Note: e author wishes to thank Profs. Nicholas S. Bryner,

Denise Antolini, Owen McIntyre, and Stefano Burchi for their

insightful comments and assistance.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.