Environmental Law Research--Brazil

International Law and Brazilian Law:
Indigenous Peoples Rights and Sustainable Development
Presenter: João Murilo S. V. da Fonseca

Presentation Outline
Part I: Introduction
Part II: Material Researched
Part III: Next Topics
Part IV: Conducting the Research
Part V: Questions?

PART I
Introduction:
Brazil
The Amazon
International Law

Brazil

Brazil
Basic Facts:

Largest Country in Latin America (slightly smaller than the United States)
190 million people
Official language: Portuguese
Ethnic Groups: Europeans, Asians, Africans, and Indigenous Peoples

Brazil
Government and Legal System:
Federative Republic formed by union of States, Municipalities and Federal District, under democratic government
All persons are equal before the law
The Constitution outlines principles of social order
States have their own Constitution based upon Federal Constitution

Brazil
Government and Legal System:
Legislative power of Republic is exercised by a Congress formed by Chamber of Federal Deputies and Federal Senate.
All representatives are elected by direct vote
Judicial power is exercised by the Supreme Federal Court and the Superior Court of Justice, Federal Regional Courts, and Federal Judges, Military, Electoral, and Labor Courts. States have their own judiciary for State matters.

Brazil
Courts and Legislature:
Federal Supreme Court: declares unconstitutionality of treaty or federal law; and considers valid law or local government contested under Constitution.
Superior Court of Justice: Adjudicates at Ordinary appeal level cases in which parties are foreign State or international organization on one part, and Municipality or person resident or domiciled in Brazil or another
Federal Regional Courts: process and adjudicates: cases between foreign State or international organizations and Municipality or person domiciled or resident in Brazil ; cases based on treaty or contract of Republic with foreign State or international organization; and disputes over the right of Indians

The Amazon
Terminology Clarifications:
The Amazonia rainforest
Represent an area greater than the scope of this research
The Amazônia Legal
Main scenario of this research
Located in the Northern Region of Brazil
The State of Amazonas
Relevant for the purposes of this research because it is one of the states that comprises the Amazonia Legal

The Amazon
The Amazon Biomass:
Biomass: “group of eco regions, fauna, flora, dynamics of ecological processes and similar ecology”
French Guiana, Guiana, Suriname, Colombia, Bolivia, Ecuador, Venezuela and Brazil
Brazil hosts 63% of the total Amazon biomass
17% rate of deforestation in relation to its original mass

The Amazon

The Amazon
The Amazônia Legal:
Law No. 1.806 of December 6 of 1953:
Established the region comprised of seven full states and parts of other two states
Seeks economic development
Takes in consideration the needs of the local community and the environment as limiting factors for economic development
Represents 59% of the Brazilian territory
Encompasses 63% of the total Rainforest Biomass. This is an area of 5 million square kilometers, or more than half of the forty-eight contiguous United States

The Amazon
The Amazônia Legal:
In 2004, it was 60% covered with forest (Original area was 74%)
27,5 billion dollars or 6.1% of Brazil’s GDP (2002)
Land distribution:
24% Private
33 % Indigenous reserves
10 % Special Areas (Military, Protected Ecosystems)
33 % Disputed Lands or Lands with no ownership

The Amazon

International Law
What is it?
Rules of conduct that are binding on international actors in relations, transactions, and problems that transcend national frontiers
In its initial phase states were regarded as the only legitimate international actors
In the 20th Century, states ceased to be the sole subjects of international legal rules. This makes it possible the application of norms of conduct to a wide range of individuals, and institutions

International Law
Sources of International as established by the International Court of Justice:
International Conventions
International Custom
General Principles of Law
Judicial decisions
Teachings of the most highly qualified publicists of the various nations

Part II
Material Researched:
Definition of Sustainable Development
Major International Treaties
The Brazilian Environmental Dilemma
The Brazilian Law in Respect to Sustainable Development
Further Research

Magraw and Hawke (2007):
Acknowledges that important disagreements exist about its precise meaning and implications, and resistance to its definition still surfaces from time to time
Sustainable development takes into account economic development, environmental protection (including human health), and social development (including human rights)

Gould (2006):
Has come to be a deeply contested and co-opted concept
Sustainable development implies global, national, regional, and local development strategies that meet basic needs while ensuring the integrity of ecosystems, and doing so in a manner that does not reduce the capacity of future generations to do the same.

Gould (Cont.):
It also seeks to meets human’s needs and intragenerational, intergenerational, and international equity. Human basic needs means food, shelter, medicine, livelihood, and community
Pearce (1999):
Defines sustainable development as “economic development that lasts”, which in turn is defined as “non-declining consumption per capita, or GNP, or whatever the agreed indicator of development is”

1992 UN Conference on Environment and Development (UNCED)
For the first time, world’s government officially adopted sustainable development as the development paradigm
27 key principles are to guide the integration of environment and development policies
Principle 7 of Rio Declaration states: ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In views of different contributions to global environmental degradation, States have common but differentiated responsibilities’

In 1994 WTO recognized sustainable development as one of its objectives (1st paragraph of the preamble to the Marrakech Agreement Establishing the World Trade Organization)
For the first time in a renowned convention, in the 1995 World Summit for Sustainable Development there was an explicit linkage between economic development, social development, and environmental protection.

2000 United Nations Millennium Declaration:
Reaffirmed concept of Sustainable Development agreed upon UNCED, including six fundamental values essential to international relations:
Freedom
Equality
Solidarity
Tolerance
Respect for nature
Shared responsibility

2002 WSSD in Johannesburg:
Representatives from around the world reaffirmed their commitment to sustainable development.
Plan of Implementation recognizes as ‘overacting objective of, and essential requirements for, sustainable development’:
Poverty eradication
Changing unsustainable consumption and production patterns
Protecting and managing the natural resources base for economic and social development

In 2005 UN released the Millennium Development Goals Report:
Most countries have committed to the principles of sustainable development by incorporating them into national policies as well as agreeing to relevant international instruments.
It also states that these good intentions have not resulted in sufficient progress to reverse the loss of environmental resources

82.1% of Original cover remaining (FAO)
Population continues to grow:
8.2 million* (1970)
17 million (1991)
20 million (2000)
The Amazon Legal remains relatively under populated in relation to other regions of the country
* Data did not include the state of Roraima

Main Causes of Deforestation:
Clearly (2000):
Ranching
Agriculture
Timber extraction
Urban expansion
Brazilian Scientists:
Public politics (environmental and economic)
Institutional (fragility)
Agrotechnology
Socio-economic (i.e.: population, income, food demand)
All of the above are intersected and act synergistically in the deforestation of the Amazon

Rayfuse on the consequences of deforestation:
“The consequence of deforestation are practical and ecological threatening economic, agricultural, medical, moral, and aesthetic interests and, ultimately, the continued viability of life on earth”

Valadares (Brazilian Diplomat) wrote in 1991:
“How much of the Brazilian forest has been destroyed? Some say 12 percent; others say 7 percent. The Brazilian government says 5 percent.”

Anthony Hall:
“There are a few statistics in Brazil as politically contentious as those on Amazonian deforestations… Officials also use them to illustrate the alleged power of government directly to contain deforestation through the application of policy measures.”

BBC News on President da Silva:
“In a speech in Rio de Janeiro, President Lula said it was time for wealthy countries to do more to reduce gas emissions.
He called on them to stop preaching on what to do with the Amazon rainforest.”

Governor Blario Maggi:
Governor Blario Maggi:
"Brazilian producers are the only ones in the world who are obliged to maintain a reserve," Maggi said. "There should be a royalty for leaving those areas intact--they need to be compensated in some way."
- On the law’s requirement 50 percent of new settled areas that are to be maintained as ‘legal reserve’

Clearly (1993):
“[The Amazon’s future is] unregulated and unregulatable, save by market mechanisms, highly volatile and sustained by a regional economy unable to generate sufficient formal sector employment.”

Hall (1999):
“Variations in deforestation rates appear to be far more sensitive to changing macroeconomic climate than to environmental controls”
“Critics suggest that deforestation trends are not generally sensitive to environmental policy controls but are, rather, a function of macroeconomic factors such as inflation and land prices, or are condition by climatic phenomena such as the impact of El Niño in provoking forest fires.”

Hirakuri’s “Can Law Save the Forest?”:
She writes on the deficiencies of the Brazilian rule of law
Has number of recommendations on how the law can become more efficient in terms of forestry management
Does not grant the economic market full power in influencing rain forest matters

Hirakuri’s “Can Law Save the Forest?”:
Recommendations for the deforestation issue, illegal logging in particular:
Factors that can be changed
Regulatory approach
Market-oriented approach
Social control/consensus-oriented approach
Factors that are more difficult to change
Forest culture
Forest land tenure
Legitimacy of the government

The Brazilian Law and Sustainable Development
Constitution Article 225:
“Declares that the environment is a common heritage of the Brazilian people and entrusts the government and society with the duty to defend and preserve it for future generations” – Valadares (1991)

IBAMA :
Stands for Brazilian Institute of the Environment and Renewable Resources
Centralize government action concerning:
Ecological issues
Forestry exploitation
Fishing
Protection of ecological systems
Came in the wake of vociferous domestic and international campaigning against accelerating deforestation and land conflict in Amazonia during the 1980s

Environmental Minister Marina Silva:
Since the creation of IBAMA Brazil has enacted successful policies in respect to environmental protection in the Amazon.
In 1989 there were 134 federal protection units that totaled 150 thousand square kilometers , now there are 288 federal protected unities that totals 700 thousand square kilometers (more than three times the area of Minnesota)

Hall (1999) on IBAMA:
“In the region overall, there are some 275 IBAMA officials, or one for every 5,984 square miles .”
“New environment minister dismissed a number of state-level IBAMA officials due to their proven involvement in illegal sales of timber from areas under their jurisdiction”

Hall (1999):
“IBAMA had been deprived of statutory powers to enforce environmental laws. Congress had failed to authorize a measure propose in the 1988 Constitutional that would have allowed executive agencies to enforce environmental legislation. Partly as a result of this situation, IBAMA has managed to collect only six percent of fines (US$23 million) levied under the Forestry Code of 1965 ”

Law against Environmental Crimes effective from 30 March 1998
Imposes large fines and prison sentences for a range of offences, including illegal logging
The law has been subject to President veto as the result of powerful lobby by certain interest groups, but should nonetheless provide IBAMA with the legal teeth it has been missing

1996 Amazon Package:
Limits forest removal on newly settled plots to 20 percent of the area, maintaining 80 percent as ‘legal reserve’
Before, Forestry Code of 1965 maintained 50% percent of newly settlement plots as ‘legal reserve’

Further Research
Data:
What sources are reliable?
Actors:
Actions of Politicians in respect to the Brazilian environmental dilemma
What is the say of Brazilians in general on this issue, if any?
International Community:
What are the most recent international initiatives, treaties?
Law
What has been the outcome of the laws that were passed?
What are the new laws that are being proposed?
NGOs
Are they beneficial or not?
Should laws benefit/limit the power of NGOs?

Part III
Next Topics:
Indigenous Peoples Rights
Sustainable Development (Economic perspective)

Indigenous Peoples Rights
Issues:
Broad discussion regarding the meaning of the term indigenous and its implications
Indigenous peoples hold 33% of Amazonia Legal territory. Are their lands protected? Do they have too much land? What are they doing with their land? Should it matter? What are the datas?
Are their voices being heard when domestic and international laws are passed?
What are the human rights violations?
Do they take their issues to the court?
Can their interests intersect with sustainable development?

Sustainable Development (Economic perspective)
What are the needs of the Brazilian economy in the forest?
Who are the actors that benefiting the most with the resources available on Amazonia legal? The greater portion of society or big business? Should this be an issue?
What are the most successful business in the Amazonia Legal region?
What are the government’s current development programs?
What are the politicians say on this matter?
What is the voice of powerful interest groups that are pro-development?
Can economic development be sensitive to indigenous peoples and the protection of the environment?

Part IV
Ways of Conducting Research:
Books:
CLICnet
Internet:
Acess treaties
Access Brazilian government websites
Access to laws
News Source (Brazilian as well as international)
Articles
NGOs websites
Prof. Karen Vogel
Continue to ask questions and guidance
Write two more literature reviews papers (one on Brazilian indigenous peoples rights and the other on sustainable economic development)

Works Cited
Magraw, Daniel B., and Hawke, Lisa D. 2007. “Sustainable Development.” In The Oxford Handbook of International Environmental Law, ed. Daniel Bodansky, Jutta Bruneeé, and Ellen Hay. New York: Oxford University Press, 614.
Pearce, David W. 1998. Economics and Environment: Essays on ecological economics and sustainable development. Northampton, Mass: Edward Elgar.
Gould, Kenneth A. 2006. “Promoting Sustainability.” In public sociologies reader, ed. Judith Blau and Keri E. Iyvall Smith.
Cleary, David. 2000. “Small-Scale Gold Mining in Brazilian Amazonia.” In Amazonia at the Crossroads: The Challenges of Sustainable Development, ed. Anthony Hall.
Wallace, Scott. January 2007. Last of the Amazon. National Geographic.
Hirakuri, Sofia R. 2003. Can Law Save the Forest?. http://www.cifor.cgiar.org/publications/pdf_files/Books/Law.pdf. (06/30/2007).
Rayfuse, Rosemary. “Biological Resources.” In The Oxford Handbook of International Environmental Law, ed. Daniel Bodansky, Jutta Bruneeé, and Ellen Hay. New York: Oxford University Press.
Hall, Anthony. 2000. “Environment and Development in Brazilian Amazonia: From Protectionism to Productive Conservation.” In Amazonia at the Crossroads: The Challenges of Sustainable Development, ed. Anthony Hall.
Lutzenberger, José A. 2001. “Who is destroying the Amazon rainforest?.” In Tropical Rainforests: Latin American Nature and Society in Transition, ed. Susan E. Place. Wilmington, Del.: Scholarly Resources.

Part V
Questions?