The results of the study allow for the characterization of the HRtW institutional framework in Portugal derived from a multi-level analysis (international, national and local). This institutional framework is composed, at the international level, by legal commitments assumed by Portugal regarding Human Rights in general and by the fact that Portugal voted in favour of Resolution 64/292 in 2010 at the United Nations General-Assembly, recognizing the Human Right to Water and Sanitation. At the national level, this framework is composed by formal laws that either recognize Human Rights pertinent to the HRtW or address water governance aspects from which the HRtW can be inferred. It should be noted that in general terms, both governmental officials and the population at large consider the HRtW in Portugal a non-issue, arguing that it is obviously guaranteed, since 96% of the population is connected to drinking water services [9
]. This level of analysis also presents the actors involved in water supply and in regulating water utilities’ activities, therefore, with responsibilities in upholding the HRtW, or at least monitor its guarantee. There have also been some legal initiatives in order to nationally recognize the HRtW, but without success. The local level includes specific regulations and procedures that affect the implementation of the HRtW on a daily basis. This level of analysis includes the norms that shape the behaviour of those in charge of (dis)connecting water services, defining water prices and collecting water debts, i.e. local practices that affect everyday people in terms of their access to water.
3.2. National Level
As stated above, although Portugal has not transposed to its national legislation the HRtW, the national institutional framework reflects the commitment to respect, protect and fulfil the HRtW. The Portuguese Constitution states that human life is inviolable, as is the moral and physical integrity of individuals [16
]. Water supply is considered a public service since 1996 and, consequently, cannot be disconnected without certain criteria being met, such as, the user needs to receive a prior notice, needs to be given 20 days before the disconnection occurring, needs to be informed of the reason for disconnection and of the procedures to avoid it [17
]. The Water Law of 2005, which transposes the European Union’s Water Framework Directive (2000), states that water management must observe several principles, including “(a) the Principle of water’s social value, which consecrates the universal access to water for basic human needs, at a socially acceptable cost…” and “(d) the Principle of water’s economic value, through which is recognized the current or potential scarcity of this resource and the need to guarantee its economically efficient use, with the recovery of water services’ costs, even regarding the environment and the resources, and being based on the polluter pays and beneficiary pays principles…” [18
]. The cost recovery aspect is specifically addressed in legislation concerning the economic and financial regime of water resources. This legislation establishes that all water users need to pay tariffs and that these “should allow for the recovery of costs associated to the supply of these services, in efficient conditions…, guarantee transparency in tariff formation and the economic and financial equilibrium of each service rendered by the water utilities” [19
]. None of these aspects are per se incompatible with the HRtW. In fact, they have been fully acknowledged and addressed in different documents and publications on this topic [20
]. In all these instances, and because it is recognized that “there is an inconsistency in that utilities are expected to deliver services on a commercial basis but at the same time provide an affordable public good” [20
], the need to structure tariffs in order to guarantee that no-one is excluded due to affordability issues is clearly stated.
If one follows the five characteristics associated with the implementation of the HRtW, Portugal complies with all, in general terms. Water available is (so far) sufficient; there are strict legal criteria to be met regarding safety and a rigorous monitoring system is in place; water supply is considered culturally and socially acceptable; there is physical access guaranteed to 96% of the population [9
]; and affordability is not considered an issue per se. According to some studies, water affordability is on average below the 3% of household’s income recommended by the Organisation for Economic Co-operation and Development (OECD): some authors calculate 0.7% [24
] whereas the Water and Waste Services Regulation Authority (ERSAR) calculates 0.36% [25
]. Consequently, affordability is not considered an issue in Portugal, which leads to several authors stating that, therefore, the HRtW is effectively implemented [26
]. Additionally, the first 10m3
consumed are usually charged at a very low price (or even for free) corresponding to the essential minimum quantity, which, according to some authors, represents a very good result from a social point of view [27
Since the recognition of the HRtWS in 2010, several legal initiatives have been presented to and discussed at the National Parliament, proposing either the national recognition of the HRtW or water governance issues with an impact on the implementation of a HRtW [28
]. Some of these initiatives include an explicit reference to the HRtW (see Table 2
), whereas others do not (see Table 3
All of these initiatives were systematically rejected. It is visible that the dynamics of initiatives occurred in phases, in which a political party’s proposal triggered other parties’ initiatives. The discussion of these initiatives was always temporally close to initiatives that focused on the public|private debate (see Table 3
), which did not have an explicit reference to the HRtW. The minutes of the discussions and the various political and legal opinions regarding each initiative always refer to this public|private debate, without really delving into the issue of the HRtW. In fact, most attempts to focus on the HRtW ended up in an exercise of arguments’ exchange for and against the privatization of water services.
Since 2010, only three initiatives were approved (Table 4
) and none transposes the HRtW into Portuguese legislation. They do, however, refer to different aspects that may have an impact on the full implementation of the HRtW in Portugal.
The 2012 Draft Resolution presented by the Ruling Coalition (Social Democrat Party and Christian Social Democrat-People’s Party) focused on issues of accessibility, sustainability and quality of water and sanitation services. With its approval, the National Assembly recommended the Government the establishment of social tariffs “to guarantee that no-one is deprived of access to water and sanitation services due to their economic or social situation” [29
]. In 2016, the National Assembly approved the Left Block Party Draft Resolution and recommended the Government to extend to water services the mechanism created to automatically assign social tariffs to energy [30
]. The Green Party Bill submitted in 2015, establishing the principle of non-privatization of the water sector, was adopted and became Law, constituting the fifth amendment to the 2005 Water Law [31
], but only in 2017. Although no in-depth research was conducted to fully comprehend this time gap between 2015 and 2017, it is acceptable to say that the assessment and voting process in between the National Assembly and the Specialised Commissions along with the fact that the discussion was held in articulation with Bill 116/XII proposed by the Portuguese Communist Party, on the inhibition of water supply, wastewater and urban solid water marketization, resulted in a delay of the Green Party Bill’s actual voting. After the Portuguese Communist Party Bill was rejected, then the Green Party rewrote its Bill which was again discussed and finally approved in 2017.
In terms of actors with direct responsibilities in rendering water access operational, Portugal is characterized by a two-tier system: a system ‘em alta’ (‘bulk’) which includes the utilities that withdraw, treat and supply the utilities ‘em baixa’ (‘retail’). Although the water utilities ‘em alta’ structurally affect the activities of the ones ‘em baixa’, this analysis only focuses on the latter ones, which are directly responsible for supplying water to the population at large. In Portugal, these water utilities come in various shapes and sizes. The vast majority is of a public nature (90%), with around 10% being managed by private concessions (see Table 5
Among the public water utilities, one can find various types of institutions: municipal or municipalized services (79.8%), companies whose capital is fully owned by the respective municipality (4.9%), companies with municipal and state, either national or regional, capital (public partnerships (1.4%), companies fully owned by the state (0.7%), and mixed capital companies (3.1%), where public actors own the majority of the capital (and thus being considered for the purpose of this analysis as public).
In 2009, the Portuguese Government created a national Water and Waste Services Regulation Authority (ERSAR) to recommend and advise utilities on matters pertaining to the interpretation of the rules guiding the sector’s management and the definition of tariffs [32
]. ERSAR regulatory actions also aim to “protect correctly the users” by assuring that water provision respects quality standards and that tariffs are socially acceptable, considering the principles of universality and cost-efficiency [34
]. It should also be noted that ERSAR identifies tools that have been created “to protect consumers, namely the poor population” at the specific level, such as the right to have access to the public water supply grid when it is available at less than 20 meters; the right to be served within five days of requesting water access; the “right to benefit from a social tariff (poor families)”; and the right to have an interrupted water supply 24 hours a day, every day of the year, except for “strong technical reasons or lack of payment (after due diligence procedures)” [35
3.3. Local Level
Regarding the individual water utilities, a content analysis of these regulations was conducted, identifying if social and large family tariffs (or others) existed, mapping the procedures and the processes associated to payment default, and if access to water was respected, protected and fulfilled based on their regulatory framework. The results were diverse, although the majority did include some sort of social tariffs and specific procedures regarding payment default, processes are often confusing and/or ambiguous. None mentions the Human Right to Water. The questionnaire applied also included a question inquiring if the water utility offered a social or large family tariff. Of the 167 respondents, only 124 answered these questions with 60.5% stating they offered a social tariff for low-income families and 53% stating they offered a large family tariff. The ERSAR has to approve each water utility regulation and provides clear instructions regarding the need for social tariffs to be included.
As explained above, the questionnaire was sent to all water utilities in Portugal (287 in 2014), of which 167 replied. In face of a lack of quantitative information providing a clear picture of the magnitude of the disconnections being reported, the questionnaire aimed at collecting information regarding the perceptions of those working in the front-office of water utilities. For this effect, the respondents were specifically asked: ‘How do you assess the evolution of the monthly average number of water disconnection notifications in 2014, when compared to the period before 2011?’ and ‘In comparison with the period before 2011, how would you assess the evolution of the monthly average number of water disconnections?’ They were asked to mark one of the provided possible answers: increased, maintained or decreased, and to consider their area of service. The answers were then examined comparing public and private capital water utilities, based on the idea that private capital utilities would be more market-oriented than public capital ones and therefore the results could be significantly different. The results showed that the majority of respondents (65% public and 64% private) had the opinion that the number of water disconnection notifications had increased between 2011 and 2014 (Figure 1
), but that the number of actual water disconnections in the same period had not increased as much (53% public and 27% private, see Figure 2
The results also show that although there was a relatively smaller perception that disconnection notifications between 2011 and 2014 had decreased (both public and private, 9%, see Figure 1
), there was a rather higher perception from private companies’ staff that water disconnections had actually decreased during this period (36.5%, see Figure 2
The questionnaire’s results seemed to match the reports in the media. Still, they carried an intrinsic methodological problem and yet another challenge. Methodologically, these were just opinions of those working on water services’ front-offices and although these had first-hand knowledge of the dynamics under analysis, there was no way of confirming if all potential respondents in any one water utility front-office would have answered the same way. These results provided a general and rather intuitive picture of what had happened, based on the experience of water services staff, allowing the team to ‘feel the pulse’ of water practitioners on this matter. These results also presented a new challenge, since it seemed that although the water disconnection notifications had increased, the actual number of disconnections had not. On the one hand, this could explain why there was no massive uproar in Portugal regarding this situation and maybe the HRtW institutional framework was strong enough after all to uphold this right, even in times of crisis. Still, it was of utmost importance to obtain concrete and reliable information regarding what had occurred, for the results would provide valuable information to assess the resilience of this framework. For this effect, the team conducted 43 in-depth interviews, which were extremely rich allowing us to better understand the divergence identified when analysing the questionnaires’ results.
The face-to-face interviews provided detailed information on the works of the HRtW institutional framework mapped and the local practices concerning this right. Most of the times the interviews ended up being group-interviews with different staff members joining and contributing to the discussion that stemmed from the questions asked. The analysis of the interviews allowed for the identification of measures derived from the institutional framework that aimed at the respect, protection and fulfilment of water access rights by domestic users (social tariffs, large family tariffs, consumer protection measures against discretionary interruptions, measures regarding debt settlements, among others). But, more importantly, these interviews enabled the identification of non-institutionalised, ad-hoc measures adopted at the local level to promptly and effectively respond to the reality of an unexpected increased number of water payment defaults by domestic users, which ranged from inaction (not disconnecting, not reclaiming the payments defaulted) to creative responses (indirect payments, direct exchange, ‘little black book’).
Additionally, the interviewees presented a straight-jacket scenario within which water utilities seem to be operating in. The financing operational water services model includes a progressive full cost-recovery principle, the application of water tariffs to end-users and the principle of financial sustainability of water services. During the economic crisis, this situation became unfeasible, with public water utilities facing budget cuts, due to austerity measures, and a decrease in water tariffs’ revenue, due to payment defaults, lower consumption levels and the volunteer disconnection of secondary homes. This willingness to disconnect secondary homes, i.e. willingness not to pay for water bills of secondary homes, was explained by being cheaper to reconnect for the holidays’ period than paying the monthly bills throughout the year. The pressure to update water tariffs and strictly follow due diligence to collect water bills became unbearable [2
]. Currently, the economic hardship has been mostly overcome and, in 2017, the Government issued a Decree-Law regarding social tariffs for water services [36
], harmonizing its meaning and application criteria. Still, the application of social tariffs by the municipalities is voluntary; the municipality has to finance it and if the water utility is not municipal, the corresponding municipality has to finance the differential between the water tariffs in effect and the application of the social tariff [36