COUNTER REPORT
BY BRAZILIAN
CIVIL SOCIETY ON THE BRAZILIAN STATE’S COMPLIANCE WITH THE INTERNATIONAL CONVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
CONTENTS
PRESENTATION
INTRODUCTION
GENERAL ASPECTS
A LOT IS STILL NEEDED TO BE DONE TO REALISE ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Institutional aspects
UN Committee on Economic, Social and Cultural Rights and Brazil
Inequality and Economic, Social and Cultural Rights
Structural adjustments and Economic, Social and Cultural Rights
Economic, Social and Cultural Rights and Public policies
Proposed Recommendations
SPECIFIC ASPECTS
CHAPTER I – THE RIGHT TO SELF-DETERMINATION AND A HEALTHY ENVIRONMENT - 39
General status of the Right
Legislation and Case law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER II – CONDITIONS NEEDED AND MEASURES TAKEN TO REALISE ECSR AND THE RIGHT TO NOT BE DISCRIMINATED AGAINST - 72
General status of the Right
Legislation and Case law
Public policies
Civil Society Initiatives
Proposals for Recommendations
CHAPTER III – WOMEN AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS - 120
General status of the Right
Legislation and Case law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER IV – THE RIGHT TO WORK, REST, LEISURE AND THE RIGHT TO STRIKE, JOIN TRADE UNIONS AND SOCIAL GROUPS - 167
General status of the Right
Legislation and Case law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER V – THE RIGHT TO SOCIAL SECURITY (STATE PENSIONS AND SOCIAL WELFARE) - 200
General status of the Right
Legislation and Case Law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER VI – THE RIGHT TO PROTECTION OF THE FAMILY, MOTHERHOOD, CHILDREN, ADOLESCENTS AND YOUNG PEOPLE - 211
General status of the Right
Legislation and Case Law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER VII – THE RIGHT TO LIVE IN DIGNITY (TO FOOD AND HOUSING) - 234
General status of the Right
Legislation and Case law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER VIII – THE RIGHT TO HEALTH CARE - 267
General status of the Right
Legislation and Case Law
Public policies
Civil Society Initiatives
Proposed Recommendations
CHAPTER IX – THE RIGHT TO EDUCATION - 297
General status of the Right
Legislation and Case Law
Public policies
Civil Society initiatives
Proposed Recommendations
CHAPTER X – THE RIGHT TO CULTURE - 316
General situation of the Right
Legislation and Case Law
Public politics
Initiatives of the Civil Society
Proposed Recommendations
BIBLIOGRAPHY - 337
PARTICIPATING ORGANISATIONS - 350
EDITORIAL STAFF
Brazilian Civil Society’s Shadow Report on the Brazilian State’s compliance with the International Covenant on Economic, Social and Cultural Rights is the result of an extensive process of mobilization and preparation, which began in February 2005 and involved hundreds of organizations and group leaders from across Brazil, coordinated by four national networks:
ARTICULAÇÃO DOS PARCEIROS DE MISEREOR NO BRASIL – Misereor
NATIONAL HUMAN RIGHT S MOVEMENT – MNDH
PLATAFROMA BRASILEIRA DE DIREITOS HUMANOS ECONÔMICOS, SOCIAIS, CULTURAIS E AMBIENTAIS (Plataforma DhESCA Brasil)
PROCESSO DE ARTICULAÇÃO E DIÁLOGO ENTRE AS AGÊNCIAS ECUMÊNICAS EUROPÉIAS E SUAS CONTRAPARTES BRASILEIRAS (PAD Brasil and EuroPAD)
The General Co-ordination of the project involved representatives from the following networks :
Cláudio Moser – Misereor
Daniel Rech – Parceiros de Misereor
Enéias da Rosa – Platforma DESCA Brasil
Irene Maria dos Santos – MNDH
Julia Esther Castro França – PAD
Luciano Wolff – EuroPAD
Maria Elena Rodriguez – Platforma DESCA Brasil
Paul Cesar Carbonari – MNDH
The Executive Secretariat for the National Human Rights Movement, with its seat at the Central Institute of Brasil (IBRACE), was held by:
Flávio Diniz (until March 2007) and
Enéias da Rosa (from April 2007)
The Co-ordination of the systematization and the final version of the report was carried out by:
Paulo César Carbonari – MNDH
The Coordination of the Revision process and the final version of the Specific Chapters was carried out by:
CHAPTER 1 – Marcelo Brito dos Santos – CDH Marçal de Souza (MS)
CHAPTER 2 – Adriana Loche – CSDDH (SP)
CHAPTER 3 – Marlene Libardoni – AGENDE (DF)
CHAPTER 4 – Ana Cláudia Lins de Oliveira – SDDH (PA)
CHAPTER 5 – José Moroni – INESC (DF)
CHAPTER 6 – Patrícia Campos – CEDECA (CE)
CHAPTER 7 – Adriana Valle Mota – NOVA (RJ)
CHAPTER 8 – Fabianny Castro Andrade – CJP (RO)
CHAPTER 9 and 10 – Salomão Ximenes – Educative Action (SP)
Those who supported the implementation of the whole process:
Misereor and EuroPAD Agencies.
When making reference to the work:
MISEREOR, MND, Plataforma DhESCA BRASIL, PAD. A SHADOW REPORT BY BRAZILIAN CIVIL SOCIETY ON THE BRAZILIAN STATE’S COMPLIANCE WITH THE INTERNATIONAL CONVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR).Brasilia, 2007.
Extensive use of this document is encouraged and it can be quoted, referred to and reproduced by all the organisations that participated in the process and all Brazilian civil society organisations. To all other interested parties, it is asked that you first request permission from the organisations that coordinated the process.
PRESENTATION
Diverse organizations, representing Brazilian Civil Society, which work in the fight for the defence and promotion of human rights in Brazil, have together drawn up a systemised document of reflections- this very Shadow Report. The purpose of this process is to construct autonomous and independent instruments and mechanisms for monitoring the fulfilment of the Brazilian State’s commitment to the realization of human rights.
The Shadow Report is born of readings rooted in real-life struggles. Members of civil society organisations were responsible for these. From these readings diverse perspectives, hopes and aspirations are brought together. We acknowledge that this report is not a synthesis, nor is it exhaustive in terms of analysis or popular aspirations. It represents a wealth of possibilities from which we were able to form this report.
The report is addressed to the UN Committee on Economic, Social and Cultural Rights to help them to understand the Brazilian situation. It is also addressed to Brazilian governmental bodies so that upon hearing the voice of civil society they can make proposals for advances in the realization of human rights - their prime responsibility. It is also addressed to leaders and directors of civil society organisations so that they are inspired to continue building processes of mobilisation and struggle. Finally, it is addressed to all Brazilians, encouraging them to strengthen their belief that the construction of a society that respects and promotes human rights is a commitment that cannot be postponed.
The organisations and networks which coordinated this process thank all the people, leaders, organisations and groups that participated in the Shadow Report. The strength of this undertaking lies in the countless and indescribable processes generated during the drawing up of the document. The presentation of this document creates new challenges for the organisations and networks involved in this Shadow Report, especially as this Shadow Report is seen as part of a process. These organisations pledge to ensure that there is continuity to this process in the most diverse forms. They call upon all the people who participated in some way in the drawing up of this document to use it as an instrument for strengthening the struggle. The systemised nature of this document lies in its capacity to become an instrument that strengthens the struggle for the realisation of all rights and especially the economic, social and cultural rights of all Brazilians.
Brasília, June 2007.
Co-ordination of the Project for Monitoring Human rights in Brazil
Articulation of the Partners of Misereor in Brazil
National Human Rights Movement
Brazilian Platform of Economic, Social, Cultural and Environmental Human Rights (Plataforma Dhesca)
Processo de Articulação e Diálogo entre Agências Enumênicas Européias e suas Contrapartes Brasileiras.
INTRODUCTION
The introduction to Brazilian Civil Society’s Shadow Report on the Brazilian State’s compliance with the International Covenant on Economic, Social and Cultural Rights seeks to systematise the rich and extensive process of formulating initiatives for the monitoring of Brazil’s commitment to the realization of human rights in general, and specifically economic, social and cultural rights, by Brazilian civil society organisations. The strength of this Shadow Report lies in the re-evaluation of projects drawn up at other historic moments in time. This report also intends to register the methodology that guided the drawing up of this document. [1]
This Shadow Report is an exercise in systematisation, as it is something that is in the process of being constructed. This Report seeks to provide one view of the real-life situation, of the factors, what has been learnt and the policies, all drawn from previous experience. It is inspired by the idea that systemisation does not only consist of gathering interesting aspects of reality, giving them importance and meaning, but that it is a question of formulating new conceptions and ways of understanding reality itself. In relying on theory we make a concerted effort to learn from real-life experiences and processes, without exhausting or substituting them. In order to intensify collective memory, this report seeks to identify relevancy, consistencies, tensions and possibilities common to all people.
We take as our starting point both the understanding that the realisation of human rights is a historic process and that these rights themselves are historic. We do this because the conceptual core of human rights is rooted in the search for the conditions that allow human dignity to really be part of each person’s life while it is also recognised as a universal value. Dignity is not to be taken for granted, nor is it to be considered as a personal or social commodity. Dignity is creating awareness and recognition, and the constant struggle against exploration, domination, victimisation and exclusion. Dignity is the continual struggle for emancipation. Dignity is deeply connected to struggles by the oppressed for freedom over the centuries in order to open up channels of discussion and build bridges of greater humanity. Dignity is marked by contradictions and the search for historical syntheses which could contribute to it being realised permanently in everyone’s lives. We believe that the proclamation of human rights in regulatory instruments (legal and judicial), the drawing up of ethical content and the initiatives for implementing these instruments and political projects, are something relatively new and represent an important advance in the creation of conditions for the realisation of human rights. It must not be forgotten however, that the process of affirming rights results in a narrowing of these very rights. This is due to the fact that the institutional framework available is, as a rule, not built with human rights in mind. Struggles for the institutionalisation of rights create conditions, instruments and mechanisms for demanding these rights publicly, but also some what contradictorily, these struggles tend to weaken the strength of human dignity as a permanent process of creating new information, and continual widening of its meaning. We know that the affirmation of rights is not in itself a guarantee of their realisation, even though the failure to affirm these rights would leave them in a worse condition, given that society would not benefit from conditions for public action. For this reason, we maintain that human rights are a complex notion with various facets and interfaces which are neither exhaustive in a legal, ethically moral, political or a cultural dimension. All of these dimensions play a part in the complementary processes of permanent struggle and historical construction.
With this as a backdrop, Brazilian civil society has been drawing up an outline for the implementation of concrete actions for monitoring human rights. In addition to monitoring the fulfilment of the ICESCR, Brazilian civil society also produces Shadow Reports monitoring other international instruments like the CEDAW, the Convention on the Rights of the Child and others. This work is supplemented by the production of what was named the Periodic Report on Human Rights in Brazil - the first of which was launched in 2003 and the second in 2007.
The first Civil Society Report on the Status of Economic, Social and Cultural Rights in Brazil was produced in 1999/2000. The decision to draw up this report was taken at the IV National Conference on Human rights (May 1999). One of the principle political purposes of the previously unprecedented initiative was to pressurise the Brazilian government to present the overdue official report (Brazil ratified the ICESCR in 1992). This initiative was unprecedented as it was the first time that civil society presented a report on the fulfilment of the ICESCR to the UN Committee on Economic, Social and Cultural Rights before the State did so. The initiative had the desired effect as the State presented the First Official Report in August 2001. It was almost five years overdue.
The decision to produce the Report, according to the publication that made it public, “It took into account the indivisibility of human rights and, given that civil and political rights already have an official structure and monitoring in the country, it is now vital that greater value is given to economic, social and cultural rights”. The following objectives led to the production and presentation of this Report: " 1. To encourage the Brazilian State to present the Official Report on Brazil and to make advances in the fulfilment of its obligations to the Covenant; 2. To inform the international community about the status of economic, social and cultural rights in Brazil and of Brazilian public opinion itself on the status of these rights, incorporating them into the National Program on Human rights; and 3. To publicise the existence of the ICESCR and of the commitments made by Member States, as well as push for the demands made by the Covenant, throughout Brazilian society and the human rights movement. Consequently, we hope that this document will serve as a legitimate instrument of pressure and constructive dialogue in the implementation of measures which are able to save the ICESCR in Brazil”.
The published Report provides information on the aspects of methodology used, which generally speaking, followed the model suggested by the UN Manual on Human Rights Reporting : “This report presents, in each of the 16 chapters related to rights [...] succinct information on the legal system, measures adopted and progress made in the country, whether due to efforts made by the country itself or with international cooperation and assistance, in addition to indicating the factors that have negatively affected the full compliance with the obligations, whether at an administrative level or in the legislative.
In order for this decision to be made possible, the Letter from the IV Conference highlighted among its recommendations the following, “that the groups participating at a national level should draw up and present a Non-governmental report to the UN on the implementation of the International Covenant on Economic, Social and Cultural Rights. The Human Rights Commission of the Chamber of Deputies and the National Human Rights movement will be responsible for carrying out research and organising seminars to substantiate the report”.