Brazil: Submission to the UN Committee on Economic, Social and Cultural Rights

We write in advance of the 74th session of the Committee on Economic, Social and Cultural Rights (“the Committee”) and its review of Brazil. This submission focuses on the right to self-determination of Indigenous peoples, access to adequate health care including sexual and reproductive health services, comprehensive sexuality education, government-endorsed online learning, the protection of education from attacks, and the rights of persons with disabilities.

Right to self-determination of Indigenous People (article 1)

1. The destruction of the Amazon rainforest has resulted in serious human rights violations against Indigenous people, including encroachment on their land and acts of violence and intimidation.
2. Since 2020, at least 35 Indigenous people have been killed in conflicts over the use of land and resources in Brazil, according to the nonprofit Pastoral Land Commission, including 22 of them in the Amazon region.[1] The number of cases of illegal logging, mining, land grabbing and other incursions in Indigenous territories increased 252 percent under the Bolsonaro administration—when comparing his tenure between 2019 and 2022 with the four years before, the non-profit Indigenist Missionary Council (CIMI) reported.[2] The uncertainty over titling has made Indigenous territories particularly vulnerable to encroachment.
3. Demarcation and protection of Indigenous territories has been a cornerstone of successful efforts to reduce deforestation in the region[3] and is key to protecting Indigenous peoples’ right to self-determination, by virtue of which they freely pursue their economic, social, and cultural development,[4] and to their full enjoyment of their right to the lands, territories and resources which they have traditionally owned, occupied, or otherwise used or acquired.[5] The administration of President Jair Bolsonaro severely weakened the protection of those territories as well as environmental law enforcement, effectively encouraging the criminal networks that have largely driven environmental destruction and have used threats and violence against forest defenders.[6]
4. The Bolsonaro administration endorsed a 2017 legal opinion—adopted by the Solicitor General’s Office under the previous administration—that Indigenous communities cannot obtain formal recognition of their lands if they were not physically present on them on October 5, 1988, the day Brazil’s Constitution was enacted, or if they had not initiated legal claims by that date.[7]
5. The Supreme Court has suspended the effects of the legal opinion pending its final ruling on the legality of the 1988 cutoff date. Human Rights Watch has urged the new Solicitor General, appointed by current President Luiz Inácio Lula da Silva, to revoke that legal opinion and inform the Supreme Court of its new stance on the matter.[8]
6. President Lula has committed to protecting the rights of Indigenous people. He has created the first ever Indigenous Peoples Ministry and resumed titling of their lands.[9] However, his government has sent mixed signals when it comes to the cutoff date and has to move forward with the demarcation proceedings of hundreds of pending requests.[10]
7. In the meantime, Brazil’s Congress is considering a draft bill to turn the arbitrary cutoff date into law.[11] The bill also contains other problematic provisions, including to allow the government to explore energy resources and expand strategic roads in Indigenous lands without the free, prior, and informed consent of Indigenous people impacted by the projects.[12]
8. The Regional Agreement on Access to Information, Public Participation, and Access to Justice in Environmental Matters of Latin American and Caribbean Countries–also known as Escazú Agreement– is the world’s first legally binding instrument containing specific provisions on environmental defenders.[13] It requires governments to provide safe and enabling conditions for environmental defenders and to adopt measures to prevent, investigate and punish attacks, threats or intimidations against them. It requires governments to ensure access to information and public participation in environmental matters, calling on governments to guarantee that the implementation of the treaty guarantees that its domestic legislation and international obligations in relation to the rights of indigenous peoples and local communities are observed. In Brazil, the agreement had been gathering dust until May, when President Lula sent it for Congress approval and further ratification.[14]

Human Rights Watch recommends that the Committee call on the government of Brazil to:

• Immediately revoke the 2017 legal opinion on the cutoff date and instead submit an opinion that defends Indigenous rights in line with international human rights standards.
• Unequivocally oppose any attempts, in Congress or elsewhere, to arbitrarily block land claims by Indigenous peoples.
• Demarcate and protect Indigenous lands to ensure the right of Indigenous people to the lands, territories, and resources that they have traditionally occupied or used and uphold their right to self-determination.
• Ratify and implement the Escazú Agreement. Implement a national plan to protect human rights and environmental defenders and strengthen protection mechanisms in place.
• Work with governors and the Attorney General’s Office to ensure that those responsible for violence and intimidation against Indigenous people and other local communities are rigorously investigated and prosecuted.

Access to Sexual and Reproductive Health Care (articles 12 and 13)

9. Abortion is legal in Brazil in cases of rape, when necessary to save a woman’s life, or when the fetus has anencephaly. To access legal abortion, a pregnant person needs approval from a doctor and at least three members of a multi-disciplinary team–made up of an obstetrician, anesthetist, nurse, social worker and/or psychologist.[15] People who obtain abortions outside these circumstances face criminal penalties, including up to three years in prison. People who perform it face up to four years.
10. From 2018 through 2022, trial and appeals courts heard an average of 400 criminal abortion cases a year, São Paulo University and Columbia Law School’s Human Rights Institute reported.[16] Black women are more likely to face prosecution, which often happens after health professionals report them for suspected abortions, in violation of their right to privacy, the report showed.
11. Brazil had the highest number of registered rape cases in its history in 2022: 74,930, according to a recent report by the Brazilian Public Security Forum.[17] In over 60 percent of the cases, the survivor was under 14 years old. In many cases, the abuser was a relative or an acquaintance.[18] The true number of survivors could be higher, since the data is based on complaints made to authorities and many survivors face barriers reporting abuse. Even though pregnant survivors of rape are entitled to legal abortion, it can be nearly impossible to access.
12.  The Bolsonaro administration tried to further restrict access to abortions, issuing a regulation in 2020 requiring medical personnel to report to police anyone seeking abortion after rape, without the survivor’s consent and even if the survivor does not wish to report the assault. The Lula administration revoked the regulation in January 2023.
13. Just 73 hospitals in a country with more than 203 million people carried out legal abortions, the organization Article 19 reported in September 2022.[19] The lack of access to healthcare facilities performing legal, free and safe abortions and the denial of access to legal abortion at healthcare facilities, add to the barriers such as stigma and fear of prosecution that could violate women and other pregnant people’s human rights.[20] Those factors can also keep them from seeking care when they experience obstetric emergencies or complications from self-managed abortions or miscarriages.[21] Between 2016 and 2020, at least 300 women died from complications related to abortion, according to Gênero e Número.[22]
14. An estimated one in seven women in Brazil has had an abortion by age 40, according to a 2021 national survey, with higher rates detected among respondents with lower educational levels, Black and Indigenous women, and women residing in poorer regions.[23] About 43 percent needed to be hospitalized for incomplete abortions.

Human Rights Watch recommends the Committee ask the government of Brazil:

• How is the government ensuring that everyone legally entitled to access abortion can access a safe and legal abortion?
• What steps is the government taking to reduce morbidity and mortality due to unsafe abortion, and to combat stigma around abortion?

Human Rights Watch recommends that the Committee call on the government of Brazil to:

• Decriminalize abortion and ensure it is safe, legal, and accessible for all.
• Ensure access to post-abortion care without discrimination, mistreatment, or fear of prosecutions, including in cases of self-managed abortion.
• Provide comprehensive sexuality education in all schools, including a focus on destigmatizing abortion.

Comprehensive Sexuality Education (articles 12 and 13)

15. Ensuring that all children and youth have access to comprehensive sexuality education (CSE) is central to realizing the right to education, as well as the rights to health, information, and non-discrimination, among others. According to the United Nations Educational, Scientific, and Cultural Organization (UNESCO), comprehensive sexuality education is “a curriculum-based process of teaching and learning about the cognitive, emotional, physical and social aspects of sexuality.”[24] It provides adolescents and younger children with medically accurate, developmentally appropriate, rights-based, and inclusive information to make informed and safer decisions about their health.
16. Studies indicate that age-appropriate sexuality education can contribute to preventing gender-based violence and discrimination and increase gender-equitable attitudes and confidence in students.[25] However, instead of strengthening sexuality education in schools, conservative lawmakers throughout Brazil have attempted to ban sexuality education, using tactics like disinformation to weaponize the subject for political gain.
17. In 2022, Human Rights Watch published a report analyzing over 200 federal, state, and municipal bills and laws introduced since 2014 designed to forbid gender and sexuality education in schools.[26] The report also described how teachers are harassed for discussing these topics in the classroom. In many cases, teachers faced spurious allegations of “indoctrination,” promotion of “gender ideology,” or “inappropriate” discussion of gender, gender identity, or sexual orientation in schools.
18. Over 80 education and human rights organizations published a manual to protect teachers against this censorship.[27] The Brazilian judiciary has also served as an important check on these regressive laws. In 2020, the Supreme Court issued landmark rulings striking down eight state and municipal laws banning gender and sexuality education, finding the bans violated the rights to equality, nondiscrimination, and education. While these rulings affirm that sexuality education is required in Brazil, conservative lawmakers continue to pass similar bans.[28] Moreover, teachers continue to suffer harassment for addressing comprehensive sexuality education in the classroom.

Human Rights Watch recommends the Committee ask the government of Brazil:

• What steps is the government taking to ensure all children and youth have access to age-appropriate comprehensive sexuality education as defined by the United Nations and in accordance with existing law and policy, Supreme Court rulings, and human rights law?
• What steps is the government taking to ensure that school administrators, teachers, and other school staff understand and feel supported in teaching and holding activities aimed to expand knowledge on comprehensive sexuality education based on Brazilian and international human rights law?
• What steps is the government taking to compile and evaluate data on teachers and other educational staff suffering harassment for addressing comprehensive sexuality education in the classroom?

Human Rights Watch recommends the Committee call on the government of Brazil to:

• Continue to promote age-appropriate comprehensive sexuality education as defined by the United Nations and in accordance with existing law and policy, Supreme Court rulings, and human rights law, including by expanding programs like the Program Health in Schools (Programa Saúde na Escola, PSE). Such policies should explicitly address safe and informed practices when it comes to sexual development, relationships, and safer sex; increase awareness to prevent intolerance, gender-based violence, gender inequality, sexually transmitted infections, and unintended pregnancies; and affirm sexual and gender diversity. Those policies should be developed in consultation with education experts and young people.
• Urge federal, state, and municipal lawmakers and public officials to stop politicizing gender and sexuality education and ensure all children and youth have access to age-appropriate comprehensive sexuality education, including by repealing or withdrawing any laws or pending bills that aim to ban “gender ideology,” censor the terms “gender” or “sexual orientation,” or otherwise infringe upon the right of students to comprehensive sexuality education.
• Compile and evaluate data on teachers facing harassment for teaching of CSE, including those facing spurious allegations of “indoctrination,” promotion of “gender ideology,” or discussion of gender, gender identity, or sexual orientation in schools. Such compilation could be done in part through Brazil’s national hotline Dial 100 (Disque 100), which could help with evaluating the number of complaints filed, the accusations made, the subject the teacher was teaching, the age of the students, and other contextual information about the incident.

Government-Endorsed Online Learning (article 13)

19. In April 2023, Human Rights Watch found that educational websites directed at Brazilian students, including two created by state education secretariats, from São Paulo and Minas Gerais, surveilled children online and harvested their personal data.[29] Seven educational websites extracted and sent children’s data to third-party companies, using tracking technologies designed for advertising.[30]
20. The Minas Gerais and São Paulo education secretariats originally authorized these websites for children’s use during Covid-19 school closures, without having checked whether they were safe for children to use. During this time, it was impossible for many children to opt out of such surveillance without giving up on formal learning altogether. After schools reopened, the governments’ dissemination of these websites paved the way to their continued use by students and schools today.
21. Human Rights Watch found that five websites deployed particularly intrusive tracking techniques to invisibly surveil children in ways that were impossible to avoid or protect against. One such technique is session recording, which allows a third party to secretly watch and record a user’s behavior on a webpage, or the digital equivalent of logging video surveillance each time a child scratches their nose or grasps their pencil in class. Typically, the third party would then scrutinize the data on behalf of the website to guess a user’s personality, their preferences, and what they are likely to do next.
22. From 2021 to 2023, educational websites owned and operated by the education secretariats of Minas Gerais and São Paulo sent children’s personal data to advertising technology companies.
23. Seven websites harvested vast amounts of children’s data and sent it to companies that specialize in behavioral advertising, which entails analyzing a child’s data to predict what the child might do next, or how they might be influenced. Advertisers might use these insights to target the child with personalized content and ads that follow them across the internet. Four of these websites tracked children more intensely than the average adult browsing the internet.
24. Profiling, targeting, and advertising to children in this way impermissibly infringes on their privacy, as it is neither proportionate nor necessary for these websites to function or deliver educational content. It also risks violating other rights if this information is used to guide them toward outcomes that are harmful or not in their best interest.
25. In response to the investigation, the education secretariat of Minas Gerais removed all ad tracking from its website. At least two companies took steps to shield children from its data surveillance.[31] These are welcome developments and demonstrate that online providers can deliver educational services to children in ways that do not compromise their data and privacy.
26. However, Brazil’s children should not face state-by-state variation in protection and cannot rely on individual providers to do better. As written, Brazil’s data protection law—the Lei Geral de Proteção de Dados Pessoais—does not provide sufficient protections for children. It does not explicitly prohibit actors from exploiting children’s information or require them to provide high levels of safety and security for children.

Human Rights Watch recommends that the Committee:

• Call on the government of Brazil to require the EdTech companies identified in Human Rights Watch’s investigation to identify and immediately delete any children’s data collected during the pandemic, so to prevent the further processing of this data for commercial or other purposes unrelated to providing education.
• Call on the National Authority Data Protection (ANPD) to consider proactive, realistic steps to protect children and adolescents’ data privacy, taking action to identify specific instances of data processing that are never in a child’s best interest.
• Ensure that education websites just collect and process data that is strict necessary to delivery education. Brazil does have established case law and Supreme Court rulings protecting children’s rights in educational settings, which the ANPD can build upon for online education.
• Call on the government of Brazil to amend the data protection law to establish comprehensive child data protection rules, including bans on behavioral advertising and the use of intrusive tracking techniques on children. These rules should also require all actors offering online services to children—including online learning— to provide the highest levels of protection for children’s data and their privacy.

Protection of Education from Attack (article 13)

27. The Safe Schools Declaration[32] is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.[33] Brazil endorsed the declaration in May 2015.[34]

Human Rights Watch recommends that the Committee:

• Ask the government of Brazil whether explicit protections for schools from military use are included in Brazilian laws, policies, or trainings, including pre-deployment training of peacekeeping troops.
• Congratulate Brazil for endorsing the Safe Schools Declaration; and recommend that the government incorporate the declaration’s commitments in domestic policy, military operational frameworks, legislation, and pre-deployment trainings, and encourage other regional states to endorse the declaration.

Rights of the Person with Disabilities (article 2, 12, 13 and 14)

28. Thousands of children and adults with disabilities in Brazil live their entire lives in institutional settings. These institutional settings vary greatly in their administration and organization, some of them are known as backup hospitals in which people with high level of requirements are placed, many times for their entire lives. Also, private organizations have partnerships with state authorities for funding and providing residential services to many individuals with disabilities, including children. Regardless of an institution’s label, size, and location, institutional care is defined by certain characteristics that are harmful to people. Among these are: separation from families and the wider community; confinement to groups homogeneous in age and disability; de-personalization; overcrowding; instability of caregiver relationships; lack of caregiver responsiveness; repetitive, fixed, daily timetables for sleep, eating, and hygiene routines not tailored to people’s needs and preferences; and sometimes, insufficient material resources.
29. Under the Convention on the Rights of Persons with Disabilities (CRPD), which Brazil ratified in 2008, it is obligated to implement policies to enable people with disabilities to live independently and be included in the community. In the case of children, policies should consist in expanding foster care services and making them accessible for children with disabilities. The same should happen for adoption policies.
30. Brazil’s government has announced that it will soon be relaunching the program ”Viver Sem Limites” (Living without Limits). It is also focusing on building a new system of care and support for older persons, people with disabilities, and children (“Política Nacional de Cuidados”). The new administration has a great opportunity to implement deinstitutionalization policies based on these developments.

Human Rights Watch recommends that the Committee:

• Urge Brazil to create a time bound plan for deinstitutionalization in line with human rights international law standards, with close participation of organizations of people with disabilities, and create a phase out plan to prevent construction of new institutions and enlarge budgetary financial amounts to remodel existent institutions.
• Strengthen foster care programs for children in order for them to be accessible for children with disabilities in accordance with international human rights law.
• End abuses against people with disabilities living in institutions, including restraints or shackling used as punishment, control, retaliation or as a measure of convenience for staff; medication without consent and without clear medical purpose; and neglect.
• Interim measures pending the time bound plan for deinstitutionalization should include policies to ensure people living in institutions have access to high quality inclusive education.