Acesso à água como Direito plurifuncional: de direito humano a instrumento para o desenvolvimento
Water is an essential asset to life and in the face of the uncertainties of the availability of an indispensable but limited resource, shows the international concern to guarantee its access as a human right. Water being a public good, it is questioned how the right to physical, social and economic...
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| Andre forfattere: | |
| Format: | Dissertação |
| Sprog: | pt_BR |
| Udgivet: |
Universidade Federal do Rio Grande do Norte
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| Online adgang: | https://repositorio.ufrn.br/handle/123456789/45812 |
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| Summary: | Water is an essential asset to life and in the face of the uncertainties of the availability of an
indispensable but limited resource, shows the international concern to guarantee its access as a
human right. Water being a public good, it is questioned how the right to physical, social and
economic access to water could be guaranteed, especially when the resource is on private
property in regions of water scarcity, and, being an insum for economic activities, how its access
could drive development. The present study aims to analyze whether access to water would be
a fundamental right and an instrument to achieve development, seeking to delimit the protection
given to water resources at international and national level, its legal nature as a legal good, the
possible means of access to resources and the viability of public policies to promote social
justice and development. For this purpose, the dialectical method was predominantly adopted,
using the deductive and inductive methods, in the background. The operationalization of this
approach was carried out through theoretical-empirical academic research, being qualitative
research. The results indicate that access to water was recognized by the United Nations as a
human right, however, the published resolutions are in the sphere of soft law, without
mandatory force with nation states. There are disagreements between Brazilian doctrinators
regarding the legal nature of the legal good water. By the Constitution of the Republic of 1988,
it is a common use of the people, because it is an environmental good. The idea of absolute and
unlimited right to property no longer prevails, since it is a requirement for the existence of this
right to perform its social function, and it must have the property a social purpose and its use
does not not comply with the right to the ecologically balanced environment. There is no need
to talk about private ownership of the waters, and we should seek means to ensure their access
to all. They were identified as institutes present in the national order that allow access to water
when located in private properties the areas of permanent preservation, marginal land and
servitude of passage. Access to water is applied the norms of fundamental rights attributed,
since its positiveity has not been incorporated into the legal system, although the Proposed
Constitutional Amendment Nº. 6/2021 is in the final phase of voting in the House of
Representatives and already approved by the Federal Senate. The fundamental right to access
to water can be treated as a multifunctional right, with individual, collective, environmental and
developmental-eficational functions, also being a freedom that must be guaranteed as a form of
social justice and promoter of development. However, the management of water resources in
Brazil is still insufficient to guarantee the necessary availability for the entire population,
particularly due to planning and management problems, which can be demonstrated by the current water crisis faced by Brazil, requiring governmental attention in the development of targeted public policies. |
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