Legal issues concerning the deforestation of the Amazon ... · the Amazon rainforest. The Amazon rainforest is the only rainforest that we have left when looking at the size and biodiversity

Legal issues concerning the deforestation of the Amazon rainforest Legal responsibility of Brazil for the deforestation of the Amazon rainforest Word count: 40,756 Delphine Beun Student number: 01712421 Supervisor: Prof. Dr. An Cliquet Commissioner: Mr. Hendrik Schoukens A dissertation submitted to Ghent University in partial fulfillment of the requirements for the degree of Master of Laws Academic year: 2018 – 2019

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PROLOGUE “At first I thought I was fighting to save rubber trees, then I thought I was fighting to save the Amazon rainforest. Now I realize I am fighting for humanity.” -Chico Mendes My law education has taken me to many places, both national and international. I started my adventure at the Vrije Universiteit Brussel (VUB) to complete my bachelor’s diploma. I then transferred to the University of Ghent were I am now completing my master’s degree. During these times, I did a lot of extracurricular activities ranging from Model United Nations to a summer course in The Hague. My master thesis is the final challenge at the end of a long road. I see writing my master thesis as a great experience to dedicate myself to one specific theme. It gave me the opportunity to question myself and critically reflect on a chosen topic. However, I did not go through this trail alone and had the help and support of many people along the way. I first want to thank Professor Cliquet for introducing me to environmental law. From the first moment I was in her class, the subject fascinated me. I want to thank her for supporting this topic and her continued assistance while I was writing my thesis. I praise her for her professional input and repeatedly reading my thesis. Subsequently, I would like to thank my parents for providing me with the change to study law. Their continued support throughout my studies and my exam periods was much needed. They sometimes needed to tell me to take things step by step when I thought my workload would overwhelm me. I will be forever grateful for everything they have done, even when things did not always go according to plan. I would also like to thank my brother for challenging me always to try to do better. Competing with him has only made me do better. I would also like to thank my grandparents. Their confidence in me at all times and them being just as nervous during my exam periods gave me moral support. I would also like to thank all my friends, both from Belgium and from abroad. They provided me with their help and experience. Without them, I would probably not have been able to finish this thesis. I will be forever grateful that they were willing to help me through everything, and I can always rely on them. It gave me satisfaction to finish this thesis and bring it to a (hopefully) successful conclusion. While this is the end of my adventure at the University of Ghent, this is not the end of the road. My next experience is already waiting.

Delphine Beun Ghent, 19 August 2019

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CONTENT TABLE

PROLOGUE............................................................................................................................................III

CONTENTTABLE.....................................................................................................................................V

LISTWITHPICTURES..............................................................................................................................IX

USEDABBREVIATIONS...........................................................................................................................X

1 INTRODUCTION...............................................................................................................................1

2 BRAZILIANAMAZONRAINFOREST...................................................................................................32.1 SCIENTIFICBACKGROUND.........................................................................................................................32.1.1 TheimportanceoftheAmazonRainforestasawhole................................................................32.1.2 Differentcausesofdeforestation................................................................................................5

2.2 PASTANDCURRENTGOVERNMENTPOLICYANDLAW....................................................................................72.2.1 Policysince2004/2005................................................................................................................82.2.2 Policychangeafter2012...........................................................................................................102.2.3 Thenewgovernmentof2019....................................................................................................112.2.4 Mainproblemsof2019..............................................................................................................14

3 CANBRAZILBEHELDRESPONSIBLE?...............................................................................................153.1 WHATISSTATERESPONSIBILITY?............................................................................................................153.1.1 DraftArticlesonResponsibilityofStatesforInternationallyWrongfulActs.............................163.1.2 Notthesameasliability............................................................................................................183.1.3 Stateresponsibilityandtheenvironment..................................................................................19

3.2 STATESOVEREIGNTYCONCERNINGNATURALRESOURCES.............................................................................203.2.1 Originofsovereigntyovernaturalresources.............................................................................203.2.2 TheAmazonrainforestasanaturalresource............................................................................213.2.3 Limitationduetoenvironmentallaw........................................................................................213.2.4 Newinterpretationofsovereigntyovernaturalresources........................................................243.2.5 Disputesettlements...................................................................................................................28

3.3 CONCLUSION:BRAZILSSOVEREIGNTYOVERNATURALRESOURCES.................................................................28

4 INTERNATIONALAGREEMENTS.......................................................................................................304.1 PARISAGREEMENT...............................................................................................................................304.1.1 CreationthroughUNFCCCandKyotoProtocol..........................................................................304.1.2 ParisAgreementbinding?.........................................................................................................314.1.3 TheNDC’sofBrazil....................................................................................................................334.1.4 Conclusion:Brazilaccountable?................................................................................................35

4.2 UNCONVENTIONONBIOLOGICALDIVERSITY............................................................................................374.2.1 IntroductiontotheConventiononBiologicalDiversity.............................................................374.2.2 ApplicationonBrazil..................................................................................................................394.2.3 Conclusion..................................................................................................................................40

4.3 REDD+..............................................................................................................................................414.3.1 Historyandmaingoals..............................................................................................................41

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4.3.2 Isitbinding?..............................................................................................................................434.3.3 Paymenttoconserveforests.....................................................................................................454.3.4 Thehumanaspect.....................................................................................................................464.3.5 Brazil..........................................................................................................................................484.3.6 Conclusion..................................................................................................................................50

5 DESIGNATEDAREAS........................................................................................................................515.1 RAMSARSITE.....................................................................................................................................515.1.1 Ramsarconvention....................................................................................................................515.1.2 RamsarsitesinBrazil.................................................................................................................53

5.2 UNESCO...........................................................................................................................................565.2.1 WorldHeritageConvention.......................................................................................................565.2.2 WorldHeritagesitesinBrazil....................................................................................................58

5.3 CONCLUSION:RAMSAR&UNESCO........................................................................................................595.4 INDIGENOUSLANDS..............................................................................................................................605.4.1 IndigenouspeopleinBrazil........................................................................................................605.4.2 International..............................................................................................................................615.4.3 Nationallaws.............................................................................................................................635.4.4 Conclusion:IsBrazilviolatingthelaw?......................................................................................64

6 NATIONALLAW..............................................................................................................................656.1 BRAZILIANCONSTITUTION......................................................................................................................656.2 THEFORESTCODE................................................................................................................................69

7 CONCLUSION..................................................................................................................................75

8 BIBLIOGRAPHY................................................................................................................................778.1 LAW...................................................................................................................................................778.1.1 InternationalLaw......................................................................................................................778.1.2 NationalLaw..............................................................................................................................78

8.2 COPDECISIONS...................................................................................................................................798.3 OFFICIALDOCUMENTS..........................................................................................................................808.3.1 UNResolutions..........................................................................................................................808.3.2 Guidelines..................................................................................................................................818.3.3 UNReports................................................................................................................................818.3.4 Principles....................................................................................................................................818.3.5 DocumentssubmittedbyBrazil.................................................................................................81

8.4 CASELAW...........................................................................................................................................828.4.1 InternationalCases....................................................................................................................828.4.2 Nationalcourtcases..................................................................................................................83

8.5 JURISPRUDENCE...................................................................................................................................838.6 OTHERSCIENTIFICSOURCES....................................................................................................................868.6.1 Othermediasources(documentaries,interviews,TEDtalk).....................................................868.6.2 OfficialwebsitesUNandtreaties..............................................................................................878.6.3 OfficialwebsitegovernmentBrazil............................................................................................898.6.4 ImportantNGOwebsites...........................................................................................................89

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8.6.5 Newsarticles.............................................................................................................................908.6.6 Reports......................................................................................................................................928.6.7 Otherwebsites...........................................................................................................................92

APPENDIX.............................................................................................................................................97

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LIST WITH PICTURES

− Picture 1: Correlation decrease deforestation and economic growth Seymour Frances and Bush Jonah, “Forest for Growth”, International Monetary Fund, March 2017. To consult through: https://www.imf.org/external/pubs/ft/fandd/2017/03/seymour.htm

− Picture 2: Deforestation rate Brazil Zero Deforestation working group, “A Pathway to Zero Deforestation in the Brazilian Amazon”, Imazon. To consult through: https://imazon.org.br/PDFimazon/Ingles/books/A%20Pathway%20to%20Zero%20Deforestation%20in%20the%20Brazilian%20Amazon.pdf

− Picture 3: Total GHG emission Brazil SEEG Brazil, “Total emissions”, System for Estimation of Green house Gasses Emissions. To consult through: http://plataforma.seeg.eco.br/total_emission

− Picture 4: Emission and NDC goals Brazil Climate Action Tracker, “Brazil: country summary”. To consult through: https://climateactiontracker.org/countries/brazil/

− Picture 5: Average rate of deforestation “Brazilian Agreement on Amazon deforestation”, Earth Innovation Institute. To consult through: https://earthinnovation.org/our-work/case-studies/amazon-deforestation/

− Picture 6: Deforestation rate Brazil in km2 McCarthy Niall, “Brazil sees worst deforestation in decade”, Statista. To consult through: https://www.statista.com/chart/16212/estimated-deforestation-in-the-brazilian-amazon/

− Picture 7: Indigenous territories Red Amazónica de Información Socioambiental Georreferenciada (RAISG). To consult through: https://www3.socioambiental.org/geo/RAISGMapaOnline/

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USED ABBREVIATIONS Art Article oC Degrees Celsius APP Área de Preservação Permanente

Permanent Preservation Area

Bolivia Plurinational State of Bolivia Bonn Convention Convention on the Conservation of Migratory Species of Wild

Animals Brazil Federative Republic of Brazil CAR Cadastro Ambiental Rural

Rural Environmental Registry

CBD Convention on Biological Diversity China The People’s Republic of China CO2 Carbon dioxide Columbia Republic of Colombia Constitution Constitution of the Federative Republic of Brazil Convention 169 Convention concerning Indigenous and Tribal Peoples in

Independent Countries, 1989 COP Conference of the Parties CERDS Charter of Economic Rights and Duties of States CEUC Amazonas State Conservation Units Centre Draft Articles (2001) Draft articles on Responsibility of States for Internationally

Wrongful Acts Ecuador Republic of Ecuador eds editors EIA Environmental impact assessment

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EU European Union French Guiana Guyane FUNAI Fundação Nacional do Índio Indigenous Affairs Department GA General Assembly GHG Greenhouse gases Guyana Co-operative Republic of Guyana ha Hectare HRC Human Rights Council ICC International criminal court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ILC International Law Commision ILO International Labour Organization IPAM Instituto de Pesquisa Ambiental da Amazônia

Amazon Environmental Research Institute

IUCN International Union for the Conservation of Nature LULUCF Land Use, Land Use Change, Forestry Montreal Protocol Montreal Protocol on Substances that Deplete the Ozone Layer Montreux Record Record of Ramsar sites where changes in ecological character have

occurred, are occurring, or are likely to occur National Report National Report on the implementation of the Ramsar convention on

wetlands NBSAPs National Biodiversity Strategies and Action Plans

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NDC Nationally determined contributions NGO Non governmental organization OECD Organization for Economic Co-operation and Development p. Page Para Paragraph Peru Republic of Peru PNGATI National Policy on Land Management and Environmental

Indigenous Lands Ramsar Convention Convention on Wetlands of International Importance Especially as

Waterfowl Habitat Ramsar List List of Wetlands of International Importance Ramsar site a wetland site designated to be of international importance under

the Ramsar Convention REDD Reducing Emissions from Deforestation and Forest Degradation REDD+ Reducing Emissions from Deforestation and Forest Degradation, as

well as conservation, sustainable management of forests and enhancement of forest carbon stocks

Stockholm Declaration Declaration of the United Nations Conference on the Human

Environment Suriname Republic of Suriname Rio Declaration The Rio Declaration on environment and development Russia The Russian Federation SEEG System for Estimation of Green house Gasses Emissions TACs Terms of Adjustments of Conduct The Secretariat (Ramsar) The International Union for Conservation of Nature and Natural

Resources UDHR Universal Declaration of Human Rights

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UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization UNCCD United Nations Convention to Combat Desertification UNCLOS United Nations Convention on Law of the Sea UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNFCCC United Nations Framework Convention on Climate Change UNHCR United Nations Human Rights Council USA United States of America Venezuela Bolivarian Republic of Venezuela Vienna Convention Vienna Convention on the Law of Treaties Vol. Volume World Heritage Committee Intergovernmental Committee for the Protection of the Cultural and

Natural Heritage of Outstanding Universal Value World Heritage Convention Convention Concerning the Protection of the World Cultural and

Natural Heritage WWF World Wide Fund for Nature

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1 INTRODUCTION In this thesis, I will be researching the legal issues that accompany the deforestation happening in the Amazon rainforest. The Amazon rainforest is the only rainforest that we have left when looking at the size and biodiversity within it.1 It represents over 60% of the remaining rainforests around the world.2 The Amazon rainforest is vital as it removes CO2 from the air. But the Amazon can also give it back when deforestation occurs. For the regions surrounding it, the Amazon is essential as it controls the climate and the circulation of the ocean currents. The plants within the Amazon also provide the knowledge of many medicines today.3 Around 30% of the world’s species can be found within the Amazon.4 All of this threatens to be lost if deforestation continues. For my master thesis, I have decided to focus only on one country. I chose Brazil as it contains more than half of the Amazon rainforest. Also, Brazil’s national policy has seen many changes over the years. In the period 2004 to 2012, the Brazilian government focused on environmental protection. They increased their international commitments and their national laws. This change had a positive result, as the deforestation rate lowered immensely. But the last two governments of 2012 and the new government of 2019 have retracted a lot of these protections. The current government of Bolsonaro of 2019 can be compared to the current government of Trump in the USA. Both leaders have the impression that the environmental concerns are a foreign plot to undermine its domestic policy.5 They both want to increase resource extraction even though experts have warned against it. The most challenging part is that both Nations are crucial in the fight against climate change. The USA is historically the world’s largest emitter of greenhouse gases. Brazil contains the ‘world’s lungs’ which stores loads of CO2. President Bolsonaro has reduced the number of funds going to the environmental ministry and is reducing the size of the protected areas within the Amazon rainforest. This is something that is happening across the world. Countries such as South Africa, Kenya, and the USA are having the same problems. President Trump has also reduced the national protected nature areas.6

1 X, “Why is the Amazon rainforest important?”, WWF, 2019. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/about_the_amazon/why_amazon_important/ 2 Butler Rhett A., “The importance of the Amazon rainforest”, Mongabay, 1 April 2019. To consult through: https://rainforests.mongabay.com/amazon/amazon_importance.htm 3 X, “Why is the Amazon rainforest important?”, WWF. 4 Butler Rhett A., “The importance of the Amazon rainforest”, Mongabay, 1 April 2019. 5 Editorial Board, “Without the Amazon, the planet is doomed”, Washington Post, 5 August 2019. To consult through: https://www.washingtonpost.com/opinions/global-opinions/bolsonaros-wish-to-chop-away-at-the-amazon-is-everyones-problem/2019/08/05/edab2204-b243-11e9-8f6c-7828e68cb15f_story.html?noredirect=on 6 Turkewitz Julie, Trump Slashes Size of Bears Ears and Grand Staircase Monuments, NYT, 4 December 2017. To consult through: https://www.nytimes.com/2017/12/04/us/trump-bears-ears.html

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The main question of the thesis is if Brazil can be held accountable on an international or national level for its current policy. My main focus will be on the different international instruments that provide environmental obligations to Brazil. My thesis consists out of five different parts. I will start with the discussion about the scientific aspects of the Amazon rainforest and the causes of deforestation. For the second part, I will research what State responsibility means and how it can be applicable in correlation with the sovereignty over natural resources. In the third part, I will be critically analyzing the relevant international agreements. I will be discussing the Paris Agreement, the UN convention on biological diversity, and the REDD+ program. For each of these agreements, I will use the same method. First, I will critically analyze and research the binding power of the agreement and the relevant articles. After this, I will be applying the articles to Brazil’s situation. Here I will take note of the current situation, but also of the promises made by President Bolsonaro. Last I will reach a conclusion to the questions if Brazil is accountable and if any legal procedures that can be taken. In the fourth part, I will be analyzing protected areas. In this thesis, I will focus on the Ramsar sites, the World Heritage sites, and the indigenous territories. I will be using the same method as I did with the international agreements. For the final part, I will critically analyze the most important and relevant national laws. This consists of a section of the Brazilian Constitution and the Forest Code. I will be looking at the articles themselves, but also if there are any relevant court cases. Lastly, I will decide if there can be any accountability for Brazil or individuals breaking the law, both in theory and in practice. For the purpose of this thesis, I would like to mention that Brazil has ratified all international agreements mentioned in this thesis. In some instances, Brazil has not yet published its official numbers, so the ones in this thesis are the most recently available numbers. This thesis is updated until the 1st of August 2019.

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2 BRAZILIAN AMAZON RAINFOREST 2.1 Scientific background

2.1.1 The importance of the Amazon Rainforest as a whole 1. The Amazon rainforest has a size of 6.7 million km2, which is twice the size of India. It spreads across nine different countries: Brazil, Bolivia, Peru, Ecuador, Colombia, Venezuela, Guyana, Suriname, and French Guiana.7 It is one of the essential parts of nature on this planet8 and the only rainforest left on this planet in terms of biodiversity and size.9 One in ten known species lives within the Amazon.10 This was confirmed when scientists were allowed to study and photograph animals living on a Mahogany tree for 24 hours.11 During this time span, the team of scientists found more than 204 different species, including species that were classified as new discoveries.12 The sad part of the story is that after this research, the Mahogany tree was cut down and transported as wood.13 Besides the wide variety of species within the Amazon, there is a vast diversity in plant life. The vegetation found in the Amazon is being used in modern medicines, and most of these plants cannot be found in other parts of the world.14 The Amazon rainforest is considered the most biodiverse place on Earth.15 2. Besides the biodiversity, the Amazon rainforest plays a significant role in human life on Earth. It supplies us with water, clean air, and lowers the CO2. It is confirmed that high levels of CO2 have a harmful impact on climate change. The Amazon contains the largest river basin on Earth, suitable for one million km2 of freshwater ecosystems.16 This represents 20% of the entire world’s water supply.17 Many of the surrounding cities depend on the water originated from the Amazon. Not only the river but also the rainfall is a significant contributor to the water supply. It rains an average of 1.500 and 3.000 mm each year. About half of this rainfall comes from the evaporation of the Atlantic Ocean. The other half comes from evapotranspiration, water from soil 7 X, “About the Amazon”, WWF, 2019. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/about_the_amazon/ 8 McGee Henry, Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. To consult through: https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1534&context=faculty 9 X, “Why is the Amazon rainforest important?”, WWF, 2019. 10 X, “The Amazon”, WWF, 2019. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/ 11 I bought a rainforest (Peru 2014). 12 I bought a rainforest (Peru 2014). 13 Ibid. 14 McGee Henry, Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. 15 McGee Henry, Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. 16 X, “The Amazon”, WWF, 2019. 17 X, “Amazonia”, Conservation International, 2019. To consult through: https://www.conservation.org/where/Pages/amazonia.aspx

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evaporation and transpiration in plants, within the Amazon rainforest.18 One water vapor molecule can go through this process five to seven times. After that, it leaves the Amazon rainforest either through the Amazon River or the atmosphere.19 Almost 70% of the evaporation happening in Brazil comes from the Brazilian Amazon.20 The Amazon evaporates around 20 billion tons of water into the atmosphere each year.21 A change in the Amazon rainforest such as deforestation could destroy this system. As a result, there will be significant water shortages.22 3. Breathable air only contains a small part of oxygen, but still, O2 is an essential element for human life. The Amazon rainforest generates around 20% of the world’s oxygen.23 It uses sunlight and ‘breathes-in’ CO2 from the air and gives back oxygen via the process called photosynthesis.24 Not only is deforestation leading to a lack of oxygen being produced, but it also increases the amount of CO2 in the atmosphere. The trees of the Amazon store enormous amounts of carbon dioxide (CO2).25 Deforestation will release this amount of CO2 back into the atmosphere, which could easily cause a temperature increase above 2°C.26 On average, the deforestation and the conversion of the Amazon rainforest release around 0.5 billion CO2 each year into the atmosphere. Besides this, there are also other causes such as forest fires, which release CO2 in the Amazon rainforest.27 So deforestation of the Amazon rainforest produces two problems. On the one hand, the cut trees release their stored CO2. On the other hand, these trees can now no longer produce any oxygen, which is needed for life on this planet. 4. The Amazon has been changing rapidly over the last few years.28 Besides deforestation, there is also climate change that is increasing the temperatures in the Amazon rainforest.29 This results in reduced rainfall, which can cause droughts and forest fires.30 The water, coming from

18 X, “About the Amazon”, WWF, 2019. 19 Welch Craig, “How Amazon forest loss may affect water – and climate- far away”, National Geographic, 19 November 2018. To consult through: https://www.nationalgeographic.com/environment/2018/11/how-cutting-the-amazon-forest-could-affect-weather/ 20 TED talk: Tasso Azevedo. 21 TED talk: Tasso Azevedo. 22 Welch Craig, “How Amazon forest loss may affect water – and climate- far away”, National Geographic, 19 November 2018. 23 Sleight Ken, “When the rainforest gets chopped down, so does our oxygen”, ecopedia, April 2013. To consult through: http://www.ecopedia.com/environment/when-rainforest-gets-chopped-down-so-does-our-oxygen/ 24 X, “Why is the Amazon rainforest important?”, WWF, 2019. 25 McGee Henry and Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. 26 McGee Henry and Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. 27 X, “About the Amazon”, WWF, 2019. 28 Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. To consult through: https://rainforests.mongabay.com/amazon/ 29 Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. 30 Ibid.

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the Amazon rainforest, directly and indirectly, influences both the climate and the ocean currents all around the world.31

2.1.2 Different causes of deforestation 5. In this thesis, I am posing the question if Brazil can be held accountable for the deforestation happening in the Amazon. The need for economic development is often used as the excuse for deforestation and is also the reason given by the Brazilian government to validate their deforestation policies. To understand this better, I started looking into the different causes of deforestation. Illegal logging 6. In Brazil, the conservation units of the Amazon rainforest are divided into different categories. Each category will be explained further in the chapter on the policy of Brazil. Landowners of the areas designated as natural forests may exploit and produce timber on their land. Till recently the Brazilian law states that private landowners are allowed to cut down a maximum of 20%32 of their forest, so 80% of their private land needs to remain rainforest.33 We have seen that this is not always the case and the people cut down many more trees then what the law dictated. People who have cut down more trees have been provided amnesty with the revision of the law. In some instances, which will be discussed later, landowners may cut down as much as 50% of their land.34 7. Another reason for illegal deforestation is linked to the non-designated areas. This land is publicly owned and therefore seen as from ‘no-one’.35 Since there is an atmosphere of impunity, this increases the amount of illegal deforestation. On top of this, there is a massive problem of corruption within the logging industry. This is mainly because of the substantial financial gains even when done illegally.36 31 X, “Why is the Amazon rainforest important?”, WWF, 2019. 32Simpson Brett, “International Involvement in Preservation of the Brazilian Amazon Rainforest: Context, Constraints and Scope”, Asia Pacific Journal of Environmental Law, vol. 13, ISS I, 2010. To consult through: https://www.illegal-logging.info/sites/files/chlogging/uploads/1_BrazilianAmazon.pdf 33 X, “Brazilian Amazon; The forest code: using law to protect the Amazon”, The Nature conservancy, 2019. To consult through: https://www.nature.org/en-us/about-us/where-we-work/latin-america/brazil/stories-in-brazil/brazils-forest-code/ 34 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. To consult through: https://news.mongabay.com/2019/03/brazils-new-forest-code-puts-vast-areas-of-protected-amazon-forest-at-risk/ 35Simpson Brett, “International Involvement in Preservation of the Brazilian Amazon Rainforest: Context, Constraints and Scope”, Asia Pacific Journal of Environmental Law, vol. 13, ISS I, 2010. 36 Boekhout van Solinge Tim, “Deforestation Crimes and Conflicts in the Amazon”, American society of Criminology, 17 September 2010.

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Agriculture 8. Agriculture in the Amazon has become a widespread activity because the cost of acquiring farmland is meager.37 Cattle ranching in Brazil plays a central role in the agriculture industry. The export of beef has become extremely popular, because of the increase in the retail price and the improvement in road infrastructure.38 About 80% of the total deforested Amazon since 2014 has been converted into cattle pastures, making it the leading cause of deforestation.39 9. In 2009 the Brazilian Federal Prosecutor’s Office introduced Terms of Adjustment of Conduct (TACs). Slaughterhouses who signed TACs have agreed not to purchase cattle from Amazon areas deforested post-2009. By 2019, 75 slaughterhouses have signed this legally binding agreement.40 However, moving cattle from an illegally deforested area to a non-deforested area and then to the slaughterhouse is a loophole often used.41 Using ‘rainforest land’ for the herding of cattle has its negative impacts.42 Because the trees no longer offer any protection from the sun, the land quickly dries out and becomes unusable, which leads to even more deforestation.43 The Amazon rainforest also produces the water needed to grow crops. With an increase in deforestation, the water coming from the Amazon has reduced. Constructions 10. Over the years, the government has invested in the construction of road infrastructure in the Amazon. There is a paved road going from Peru to Acre, in Brazil.44 The Brazilian government of 2005 has stopped some major roads from being constructed to halt the deforestation.45 However, in 2012, the ruling government picked up the plans and moved forward with more paved roads and infrastructure in the Amazon region. The current government of 2019 has already announced that more infrastructures will be built in the Amazon region. There are

37 Boekhout van Solinge Tim, “Deforestation Crimes and Conflicts in the Amazon”, American society of Criminology, 17 September 2010. 38 Butler Rhett A, “Deforestation in the Amazon”, Mongabay, July 2014. To consult through: https://data.mongabay.com/brazil.html 39 Asher Claire, “Deforestation-linked Brazilian beef still flowing into international markets: report”, Mongabay: Amazon Agribusiness, 6 November 2018. To consult through: https://news.mongabay.com/2018/11/deforestation-linked-brazilian-beef-still-flowing-into-international-markets-report/ 40 X, “GPA’s (Casino Group) Beef Supply Chain Exposed to Deforestation Risks”, Chain reaction Research, 15 April 2019. To consult through: https://chainreactionresearch.com/report/gpas-casino-group-beef-supply-chain-exposed-to-deforestation-risks/ 41 Asher Claire, “Deforestation-linked Brazilian beef still flowing into international markets: report”, Mongabay: Amazon Agribusiness, 6 November 2018. 42 I bought a rainforest (Peru 2014). 43 I bought a rainforest (Peru 2014). 44 Boekhout van Solinge Tim, “Deforestation Crimes and Conflicts in the Amazon”, American society of Criminology, 17 September 2010. 45Simpson Brett, “International Involvement in Preservation of the Brazilian Amazon Rainforest: Context, Constraints and Scope”, Asia Pacific Journal of Environmental Law, vol. 13, ISS I, 2010.

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plans to build new roads and railroads.46 The government, for example, wants to finish the Trans-Amazonian Highway, fully paved going from Brazil to Peru.47 Research has shown that roads are linked with a rise in deforestation. Paved roads increase access to remote areas and also increase illegal logging.48 Mining 11. Mining causes much damage to the Amazon rainforest. At the end of 2018, the Brazilian Amazon was home to 453 illegal mines. Eighteen of these mines were located in protected indigenous reserves.49 The products used in the mines are often dangerous and illegal.50 The use of mercury has been made illegal, but in many goldmines, it is still being used.51 Not only does this cause damage to the health of the workers themselves, but the mercury is also dumped into the river.52 As a result, many ‘mercury ponds’ are created within the Amazon. These ponds will poison the soil of the Amazon.53 On the 10th of December 2018, the Brazilian advocacy group “Institutio Socioambiental” released a map with all the illegal mines found within the entire Amazon rainforest. As a result, the government raided several mines located in two national parks. The primary targets were the excavators and other heavy machinery.54 The government of 2019 has announced that they want to open the Amazon rainforest again to mining. The previous government also made those plans but changed its mind when seeing the international backlash.55

2.2 Past and current government policy and law 12. Of the entire Amazon rainforest, 70% is located in Brazil, which means that the Amazon rainforest covers more than half of the Brazilian territory. This makes Brazil part of the five most

46 Branford Sue, “Amazon at risk: Brazil plans rapid road and rail infrastructure expansion”, Mongabay: Amazon infrastructure, 12 February 2019. To consult through: https://news.mongabay.com/2019/02/amazon-at-risk-brazil-plans-rapid-road-and-rail-infrastructure-expansion/ 47 Spring Jake, “Brazil seeks to privatize key stretches of Amazon highways”, Reuters, 22 January 2019. To consult through: https://www.reuters.com/article/us-brazil-infrastructure/brazil-seeks-to-privatize-key-stretches-of-amazon-highways-idUSKCN1PG2JS 48 Branford Sue, “Amazon at risk: Brazil plans rapid road and rail infrastructure expansion”, Mongabay: Amazon infrastructure, 12 February 2019. 49 Moraes Ricardo and Spring Jake, “Brazil's Amazon rainforest under siege by illegal mines”, Reuters, 11 December 2018. To consult through: https://www.reuters.com/article/us-brazil-environment-mining-widerimage/brazils-amazon-rainforest-under-siege-by-illegal-mines-idUSKBN1OA2KM 50 I bought a rainforest (Peru 2014). 51 I bought a rainforest (Peru 2014). 52 Ibid. 53 Ibid. 54 Moraes Ricardo and Spring Jake, “Brazil's Amazon rainforest under siege by illegal mines”, Reuters, 11 December 2018. 55 Ying Xiu, “Brazil could Open Vast Reserve in the Amazon Rainforest to Mining”, The Rio Times, 13 April 2019. To consult through: https://riotimesonline.com/brazil-news/rio-politics/brazil-could-open-vast-reserve-in-the-amazon-rainforest-to-mining/

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forest-rich countries in the world.56 Deforestation in the Brazilian Amazon has reached 17%, which scientists judge close to the tipping point, which is 20-25%.57 The tipping point is considered the point where the Amazon forest will convert into Savannah.58 Already in the 1970s, it was discovered that the Amazon produces half of its rainfall, which will further reduce as deforestation grows.59 13. Brazilian environmental policy is trying to govern and secure three domains; climate change, protection of the Amazon rainforest and the rights of the indigenous peoples.60 Since the 1970s, Brazil’s national policy was mainly focused on economic growth. One of the focus points was the increase in agriculture, which led to an increase in deforestation. Between 1970 and 2000 Brazil lost over 600,000 square kilometers of forest.61 As of 2003 Brazil changed course and became a world leader in the fight against climate change thanks to the newly elected president at that time. They were able to slow down the deforestation of the Amazon rainforest and increased the rights of the indigenous people. Since 2012 the government has taken a different road. Deforestation has increased again, and laws are being changed to make deforestation easier.

2.2.1 Policy since 2004/2005 14. On the 1st of January 2003, Lula da Silva became president. He stayed president for two terms till 2010. Deforestation in the Brazilian Amazon rainforest has seen a drop in 2004 and has majorly decreased during this government’s legislature.62 15. Brazil has been working hard to reduce deforestation.63 Between 2004/2005 till 2011/2012 there was a reduction in deforestation at around 80%. This reduction was achieved by the 3 actions taken by the government. First, Brazil established the world's largest network of protected areas, covering around 25 million hectares.64 Including satellite monitoring, to prevent further

56 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elga, p154. 57 Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. To consult through: https://news.mongabay.com/2018/03/analysis-the-brazilian-supreme-courts-new-forest-code-ruling/ 58 Lovejoy Tom and Nobre Carlos, “Amazon forest to savannah tipping point could be far closer than thought (commentary)”, Mongabay: Amazon Agribusiness, 5 March 2018. To consult through: https://news.mongabay.com/2018/03/amazon-forest-to-savannah-tipping-point-could-be-far-closer-than-thought-commentary/ 59 Lovejoy Tom and Nobre Carlos, “Amazon forest to savannah tipping point could be far closer than thought (commentary)”, Mongabay: Amazon Agribusiness, 5 March 2018. 60 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elga, p152. 61 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elga, p154. 62 Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. 63 Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. 64 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019.

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deforestation. 65 Their second action was an increase in law enforcement. During that period, many people were convicted and sent to jail as a result of illegal deforestation. Furthermore, Brazil, through its banks, implemented a restriction on the lending of credit. People who promoted illegal deforestation could no longer get credit from their bank.66 As a result, as people had no money, so there was less deforestation. 16. In this period, two principal legislative instruments were protecting the Amazon. Article 225 of the Brazilian Constitution67 protects the environment and subsidiarity of the Amazon rainforest. Besides that, another vital legislation that protects the Amazon rainforest is the Forest Code, which was first adopted in 1965.68 17. A system, called the license, was put in place to verify the origins of the timber. Till today (2019) this system is still in place. The license will verify if the wood is coming from an area where they legally cut down trees. When a person wants to buy wood, they can ask for this license.69 For example, it is illegal to import timber to the EU, which has been illegally sourced in its home country.70 Sadly enough, this system is not foolproof. There is much fraud within Brazil with the use of the license. For example, a logger has obtained a license from his legal logging. During transport, he stops his truck at an illegal deforestation/logging site, where he could combine the wood from the legal and the illegal site, while still using the original license of the legal site.71 Another way is the creation of ‘fake’ trees. The owners provide false inventory numbers to the registries. As a result, according to the registry, they have more trees on their property than in reality. Those extra trees are then taken from illegal logging.72

65 Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. 66 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 67 Constitution of the Federative Republic of Brazil, 5 October 1988. 68 Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 69 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 70 Greenpeace European Unit, “Greenpeace investigation: EU imports of Amazon timber tainted by widespread fraud in Brazil”, Greenpeace, 20 March 2018. To consult through: https://www.greenpeace.org/eu-unit/issues/nature-food/1170/greenpeace-investigation-eu-imports-of-amazon-timber-tainted-by-widespread-fraud-in-brazil/ 71 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 72 Greenpeace European Unit, “Greenpeace investigation: EU imports of Amazon timber tainted by widespread fraud in Brazil”, Greenpeace, 20 March 2018.

Picture 1: Correlation decrease deforestation and economic growth Source: International Monetary Fund

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18. During this period, 2004-2010, where the government focussed on reducing deforestation, the economic growth in Brazil was significant. There was mainly an increase in beef and soy production. At the same time, the deforestation of the Amazon rainforest decreased.73

2.2.2 Policy change after 2012 19. On the 1st of January of 2011, Rouseff became president of Brazil. She was the first female president and stayed for two terms. Her vice-president replaced her during the last two years of her presidency (2016-2018). 20. The main goal of this government was to stimulate economic growth. They believed that many environmental initiatives of the previous government were contra productive for the Brazilian economy. As a result, they have turned back most of the environmental initiatives put in place by the previous government to stop deforestation. 21. This government opposes the creation of protected areas and the designation of indigenous territories. This government stopped both of these things. Furthermore, the environmental budget has decreased. Since the government change in 2011, the government policies on preventing climate change have reduced, and illegal deforestation started to rise again.74 The previous government made it harder for people who wanted to get new structures or licenses approved within the Amazon rainforest. One of the goals of the 2011 government was to make it easier again. 22. They reduced the legislation protecting the Amazon rainforest.75 In 2012 the Forest Code underwent some serious revisions that resulted in today’s (2019) New Forest Code.76 The new version has reduced the environmental protection granted in the previous one, as it was influenced by the agriculture sector.77 One of these reductions is, for example, the fact that farmers no longer have an obligation to reforest an area of 41 million hectares.78 Because of these reductions in the protection, environmental organizations decided to go to the court. They argued that 58 out of the 84 articles in the New Forest Code were breaching the constitution.79 The initial vote in the court was 5 against 5, which meant that Celso De Mello had to cast the deciding vote.80 This judge is

73 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 74 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elga, p152-153. 75 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 76 Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 77 Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 78 Ibid. 79 Ibid. 80 Ibid.

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known to be very supportive of conservation but cast a vote against the applicants.81 The judgment also declared that the fines handed to people that illegally logged the Amazon before the 22nd of July 2008 would be discharged.82 23. One of the new ways to protect the Amazon is the list of registered properties called the Rural Environmental Registry (CAR). Every property within Brazil needs to be registered within a database. This is one of the ways to identify people involved in illegal deforestation. The register tells you how much legal reserve a person has and how much has been protected. By using satellite images, they can see when a person illegally deforests their property. These people will then be given a penalty by mail, which is then enforced. The main problem with this registry is the regulations surround it and the transparency. You do not have access to the name of the owners, which makes it difficult to sue that person.83

2.2.3 The new government of 2019 24. On the 1st of January of 2019, Bolsonaro became the president of Brazil. He intends to decrease the protection of the Amazon rainforest further and to open it up to the industry. He is convinced that the lousy economy of Brazil is due to the protection of the Amazon rainforest. It was mentioned that Brazil is aiming to pull out of the Paris Agreement, but that seems practically impossible. The reason is that the Brazilian congress almost unanimously ratified the Paris Agreement.84 25. Around 28% of the Brazilian Amazon rainforest is located within a conservation unit.85 The conservation units are divided into 12 groups. These 12 groups are split up into areas with full

81 Idid. 82 Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 83 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 84 Wallace Scott, “Brazil's new leader promised to exploit the Amazon—but can he?”, National Geographic – Environment, 31 October 2018. To consult through: https://www.nationalgeographic.com/environment/2018/10/brazil-president-jair-bolsonaro-promises-exploit-amazon-rain-forest/ 85 X, “Panel of Conservation Unites in Brazil”, Ministry of Environment, 2019. To consult through: https://app.powerbi.com/view?r=eyJrIjoiMDNmZTA5Y2ItNmFkMy00Njk2LWI4YjYtZDJlNzFkOGM5NWQ4IiwidCI6IjJiMjY2ZmE5LTNmOTMtNGJiMS05ODMwLTYzNDY3NTJmMDNlNCIsImMiOjF9

Picture 2: Deforestation rate Brazil Source: Pathway to zero deforestation in the Brazilian Amazon, Imazon

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protection and areas for sustainable use. Five categories enjoy full protection; this means that the main objections are the conservation and research of this area.86 The first category is an ecological station. Its objective is the preservation of nature and the conduction of scientific research. Only the public is only allowed in this area for educational purposes. The second category consists of biological reserves. This category aims at the integral preservation of biota and other natural attributes. Also here, people are only allowed for educational purposes. The third category is national parks, which is also the most popular and oldest category. One of its objectives is to preserve ecosystems of high ecological relevance and scenic beauty. The national parks are open to tourism. The fourth category, national monuments, is also open to tourism. The primary objective of this unit is to preserve rare, unique, and/or scenic beauty sites. The fifth category is wildlife refuge; these are designed to protect natural environments where conditions are guaranteed for the existence or reproduction of species or communities of local flora and resident or migratory fauna.87 26. The final seven categories of conservation units fall under the areas for sustainable use. The sustainable use areas are open to a certain degree of human occupation. Here we should find a balance between conservation and exploitation.88 The categories are an environmental protection area, an area of relevant ecological interest, a national forest, an extractive reserve, a fauna reserve, a sustainable development reserve, and a national heritage private reserve.89 27. The Amazon rainforest consists out of designated areas, conservation units and indigenous land, and undesignated areas. A massive area of the Amazon of around 41% is undesignated and does not enjoy any formal protection. Another 33% of the Amazon is only partially protected.90 It is the undesignated areas that are the cause of most of the deforestation. Research has shown that there is 25% more deforestation outside the protected areas than inside the protected areas.91 28. The Amazon rainforest is also home to a lot of indigenous lands. In Brazil, the government has ownership over these lands and allows the indigenous people to use them by providing them concessions. As a result, it is very easy for the government to change the way the land can be used. The government wants to use the land of the indigenous people to produce soya beans. But leasing indigenous lands to agriculture producers is against the Brazilian Constitution. As the

86 Martins Cássio Soares, Drummond Gláucia Moreira, do Prado Rodrigues Marina, “Brazilian Alliance for Extinction Zero (BAZE) Conservation Strategy”, Alliance for Zero Extinction, July 2018. To consult through: http://zeroextinction.org/case-studies/the-brazilian-alliance-for-extinction-zero-baze-conservation-strategy/ 87 Chico Mendes Institute of Biodiversity conservation, “Conservation Units: categories”, Ministry of Environment, 2019. To consult through: http://www.icmbio.gov.br/portal/unidadesdeconservacao/categorias 88 Martins Cássio Soares, Drummond Gláucia Moreira, do Prado Rodrigues Marina, “Brazilian Alliance for Extinction Zero (BAZE) Conservation Strategy”, Alliance for Zero Extinction, July 2018. 89 Chico Mendes Institute of Biodiversity conservation, “Conservation Units: categories”, Ministry of Environment, 2019. 90 Martins Cássio Soares, Drummond Gláucia Moreira, do Prado Rodrigues Marina, “Brazilian Alliance for Extinction Zero (BAZE) Conservation Strategy”, Alliance for Zero Extinction, July 2018. 91 Martins Cássio Soares, Drummond Gláucia Moreira, do Prado Rodrigues Marina, “Brazilian Alliance for Extinction Zero (BAZE) Conservation Strategy”, Alliance for Zero Extinction, July 2018.

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standpoint of the government is unclear, the people, providing leasing’s to producers, are not being prosecuted.92 In some cases, they will take away the land. In other cases, they will provide financial support to indigenous people who want to produce soya beans. This practice results in a lot of the culture and identity of the indigenous people disappearing. The government has also mentioned it wants to change to constitutional protection given to the indigenous people.93 29. The Brazilian government has introduced its plan to eliminate the existing difficulties in place for the development of the Amazon rainforest. These difficulties include strict laws, many conditions that need to be met, an environmental impact assessment, and it is a lenghty procedure. Getting an environmental license is already a weak process. While the environmental impact studies are only being done for what the government considers ‘huge things’. There is no environmental impact assessment for ‘small things’.94 30. While no laws have been changed yet, the government has given a clear signal of impunity. People participating in illegal deforestation are no longer on large scale sentenced to jail. Mainly the indigenous lands have problems keeping people out. The people do no longer fear the authorities and have no regard for the rules.95 On several occasions, there has been a legalization of the land taken and deforested by some people. 31. In April 2019 the government has cut the budget in half for the Ministry of Science, Technology, Innovation, and Communication. The budget for the scholarships of the National Council on Scientific and Technological Development will also be cut.96 32. Furthermore, they have made plans to increase investments within the Amazon region. The government wants to expand agricultural production within the Amazon. Another plan is to increase the development of infrastructure connecting different parts of the Amazon. As mentioned before, there is a direct link between infrastructure, such as roads and illegal deforestation. Around 60-80% of the total deforestation is located around the paved roads. This also includes much illegal deforestation.97

92 Gonzales Jenny, “Brazil wants to legalize agribusiness leasing of indigenous lands”, Mongabay: Amazon Agribusiness, 21 February 2019. To consult through: https://news.mongabay.com/2019/02/brazil-wants-to-legalize-agribusiness-leasing-of-indigenous-lands/ 93 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 94 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 95 Wallace Scott, “Brazil's new leader promised to exploit the Amazon—but can he?”, National Geographic – Environment, 31 October 2018. 96 Sims Shannon, “Brazil slashes funding to scientists. The planet may suffer”, National Geographic – Environment, 19 April 2019. To consult through: https://www.nationalgeographic.com/environment/2019/04/brazil-cuts-funding-scientists-grad-students-environment-suffers/ 97 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019.

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2.2.4 Main problems of 2019 33. One of the main problems at the moment is the so-called ‘land invasion’ and ‘land grabbing’. Designated areas have some sort of legal framework. Land invasion refers to taking land that has already gotten a designation by the government. Groups of people will invade this area, with or without force. The goal is to then use the area for deforestation. Since there is a sense of impunity, these people do not fear any prosecution. They will either wait for the government to change the designation or ask the government to change the designation of that area.98 34. Land grabbing is associated with undesignated areas. The Brazilian Amazon has a significant area of undesignated public forest. That means that the government has not allocated a use for this area. As a result, many people will participate in “land grabbing”. This means they will move into this region, maybe even build a ranch and then wait for the government to make their activities legal. Cattle ranching is one of the easiest ways to take the land. They cut the trees, sell them, and then burn the land.99 35. There have already been cases of the government changing previous illegal deforestation areas into legal deforestation areas. People are even ‘invading’ designated protected areas almost certain that the legislation will change for this area, and there will be no punishment.100 36. One of the root causes of the ‘invading’ problem is the challenge to protect the Amazon rainforest areas. There is a lack of rangers in the fight against illegal deforestation. Some indigenous areas will have their own rangers that protect the area from an invasion of loggers. The areas designated as parks have rangers due to tourists visiting that area. However, most protected areas have no rangers. The lack of rangers is due to two different reasons. The first is that the Amazon is so big; it is hard to protect it sufficiently. Another reason is that some protected areas are very remote, so it is challenging to maintain rangers over there. In most cases, a protected area will have one manager, 2 to 3 employees, and another three people to protect it. Undesignated areas will have no one allocated there.101 37. Another problem can be found within the legal properties of people. According to the law, 80% of the property needs to stay forest. Meaning, people are only allowed to deforest 20% of their entire property. However, it is common knowledge that landowners are deforesting around 30% of the Amazon illegally on top of the allowed 20%. This means that only around 50% of the Amazon rainforest remains instead of 80%.102 38. Settlements of small-owners are responsible for around 20% of the illegal deforestation. Since no system is in place to economically support settlements, these people use deforestation as a means to create an income for themselves.

98 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 99 Ibid. 100 Ibid. 101 Ibid. 102 Ibid.

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3 CAN BRAZIL BE HELD RESPONSIBLE?

3.1 What is State responsibility? 39. The term responsibility reflects the nature of the legal obligation.103 It is a legal response to a breach of the law (an unlawful act).104 State responsibility means in most cases that one State is a wrongdoer and another State is the aggrieved entity.105 State responsibility, therefore, obligates States to act in conformity with international law. If not, the State should be held accountable for the breach. In such an event it allows for one State to put forward a claim against the other State.106 Many different legal consequences are flowing from an unlawful act. The main consequences are the duty to make reparations and the allowance of taking countermeasures.107 Both will be explained further in this chapter. 40. To explain State responsibility a distinction between primary and secondary rules was created. Primary rules are all the rules of international law whose breach leads to State responsibility. Secondary rules are the obligations, which flow from the consequences of a breach of international law.108 Every State has the primary obligation not to breach international law. International law can be seen as primary rules, and a breach will lead to State responsibility. Not every State has secondary obligations, and not every State responsibility will lead to secondary obligations. For example, countermeasures as a consequence of State responsibility do not create secondary obligations. While the aggrieved State may take countermeasures, it is considered a power. As a result, the State who has breached international law may defend itself against the countermeasures. The duty to make reparations does create a secondary obligation. The wrongdoer is obliged to fulfill this obligation. In other words, the secondary rules are created by a violation of the primary rules.109 41. The system of State responsibility is mainly one of civil responsibility. Criminal law aspects are in 2018 still limited to natural persons and not extended towards States. There are three types of civil responsibility to be distinguished. The first system is the responsibility of a fault. A State can only be held responsible if a fault can be established. This fault can exist out of either malicious intent or negligence. The burden of proof lies with the claimant. The second system consists of strict responsibility. The wrongdoing State is here responsible for a breach in international law. In this case, the wrongdoing State needs to proof it falls under one of the 103 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 1. 104 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p2. 105 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 15. 106 Malcom Nathan Shaw, International law, 8th edition, Cambridge University Press, 2017, p851. 107 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 3. 108 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 7. 109 Ibid, p 3.

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circumstances of precluding wrongfulness.110 These circumstances include consent, self-defense, countermeasures, force majeur, distress, and State necessity.111 The third system is based on absolute responsibility. This pertains the liability resulting from the caused damage. It is the claimant who needs to prove that the State’s action caused the damage. In this case, there needs to be a breach of the obligation and a causal link between (non) act and damage to create State responsibility.112 42. State responsibility can be based on the Draft Articles on Responsibility of States for Internationally Wrongful Acts.113 This is based on the second system described above.

3.1.1 Draft Articles on Responsibility of States for Internationally Wrongful Acts 43. The ILC was established in 1947 by the General Assembly.114 One of the primary purposes was to study, with as purpose the development and the codification of international law.115 In 2001 the ILC finished its Draft Articles on Responsibility of States for Internationally Wrongful Acts. Every wrongful act committed by a State leads to international responsibility.116 This rule can be divided into two conditions. The first condition is that the act or omission needs to be wrongful. Secondly, the act or omission is imputable to the State.117 There are no exceptions to these two conditions.118 Often the question is posed if either damage or fault is a necessary element. There is no general rule, which confirms this. However, the requirement of either damage or fault depends on the content.119 44. According to the Draft Articles (2001), a wrongful act can consist of one or more actions or omissions by that State.120 A wrongful act is a lot broader than just a violation of the norm. It consists of a violation of the subjective legal position of a State, in other words, its obligation.

110 Ibid, p 18. 111 Art 20 – 25 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 112 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 18-19. 113 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 114 International Law Commission, United Nations. 115 Art 13 (1) (a) Charter of the United Nations, San Francisco, 26 June 1945. 116 Art 1 International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. 117 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 34. 118 X, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International law Commission, vol. II, Part Two, 2001, p36. To consult through: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf 119 X, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International law Commission, vol. II, Part Two, 2001, p36. 120 Ibid, p 32.

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These obligations do flow from norms.121 The origin or the character of the obligation is of no importance to decide if there is a wrongful act.122 The obligation needs to be legal, and it needs to be in force at the time of the breach. Political obligations, such as soft law do not lead to State responsibility.123 45. The only condition that the wrongful act has is that the obligation must pertain to a domain of international law.124 State responsibility is seen as a sanction for breaching international law. International law is legally binding because of the possibility when there is a breach of State responsibility.125 The ICJ has stated in the Interpretation of Peace Treaties (Second Phase) that a refusal to fulfill the treaty obligations involves international responsibility.126 46. Within the Draft Articles (2001), there is no mention of the requirement of damage. However, the damage is mentioned within the context of indemnity. The State that breaches the rules is obliged to stop its activities and to make full reparations for the injury. The injury can be both material and moral damage caused by the wrongful act.127 Depending on which type of damage is suffered, the reparations will vary. The full reparations can be compensation, restoration, and satisfaction. These can be either alone or combined.128 In case of monetary damage, the reparation will consist out of compensation.129 Compensation means payment of money, based on the value of the damage. This means to exclude compensations for moral damage. It is generally accepted that an international court or tribunal can award compensation for the suffered damage. 130 Moral damage will be restored by satisfaction. Satisfaction is linked to non-economic damages. These can exist out of acknowledgment, expression of regret, formal apology or another appropriate modality.131 Other material damage can be restored by restitution.

121 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 36. 122 Art 12 International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. 123 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 36. 124 Art 3 International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. 125 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 45. 126 Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Second Phase, Advisory Opinion, 1950, I.C.J. Reports, p 228. 127 Art 31 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 128 Art 34 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 129 Art 36 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 130 X, “Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International law Commission, vol. II, Part Two, 2001, p99. 131 Art 37 International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001.

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Restitution consists of re-establishing to the situation, which existed before the wrongful act.132 There is some discussion about the definition of restitution. One definition says it is should establish the situation before the wrongful act occurred. Another definition says it should establish the situation as if the wrongful act never occurred.133 47. Besides damage, a fault is also not a requirement for State responsibility. Before the establishment of the ILC, a fault was a requirement. Several reasons, such as the simplification of the responsibility system, caused a fault to be abandoned.134 48. The other States, besides the injured State, may also invoke State responsibility. But they can only do this when the obligation is breached in the following cases. The first case is when the international community owes the obligation. The other case is when the obligation is owed by a group of States and is established for the protection of the collective interest of the group.135 It is also possible for one State to act on behalf of a group of States. This can be to uphold a customary obligation related to the global environment.136 The damage can be done either to individual States or to the global commons. The ILC gives here the example of the pollution of the high seas is a violation under the Laws of the Seas.137

3.1.2 Not the same as liability 49. Within environmental law, it is important to distinguish between State responsibility and liability. If there is a breach of an international obligation, we speak of State responsibility. The injurious consequences of lawful activities fall under liability. If an internationally wrongful act is absent, the issue will become a liability for lawful conduct. State responsibility is focused upon the secondary rules, which will lead to repartitions after the fact. Liability is focused on the primary rules on abstention, prevention, and cooperation. The goal is to avoid any possible damage.138

132 Art 35 International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. 133 X, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International law Commission, vol. II, Part Two, 2001, p96. 134 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 23. 135 Art 48 International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. 136 Crawford James, “State Responsibility”, Oxford Public International Law, September 2006. To consult through: https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1093 137 Crawford James, “The International Law Commission’s Articles on State responsibility”, Cambridge University Press, 2002, p259. 138 Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, p 34.

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3.1.3 State responsibility and the environment 50. Environmental damage pertains to damage to the environment and may include four elements. They include the fauna, flora, soil, water, and climatic factors; the material assets; landscape and the environmental amenity and the interrelation of the previous factors.139 51. Generally, States have accepted the existence of environmental liability. Principle 22 of the Stockholm Declaration140 even recognizes the existence of gaps within the liability. It has called upon the States to cooperate and further develop international law, to also cover these gaps. The Rio Declaration141 shows progress since 1972. The primary mechanism of compliance is based on the customary norms of State responsibility. 52. The ICL has accepted the principle of public interest concerning international environmental claims. However, there is limited evidence that suggests that this has been accepted as part of customary law.142 53. Within environmental law, mainly climate change, we see an increase in national cases against the government in recent years.143 There are fewer cases within the international sphere. International liability issues are mainly governed by the already existing principles of international law. The principle of State responsibility has been applied to transboundary environmental harm. An example is the Trail Smelter case.144 In this case, a Canadian smelting operation caused harm to the crops and land located within the United States. 54. One of the hardest things to do in relation to State responsibility for environmental damage is identifying the responsible wrongdoer. In some instances, such as dumping and oil spillage it is clear who the responsible State is. When talking, for example about CO2 emissions, it is harder to prove which State is responsible for the emission. Without identifying the responsible State, it is hard to set up an international court case.

139 Khalatbari Y, Bavand D., Zare A, Poorhashemi S.A., “Development of the concept of “Environmental Damage” in International environmental law”, CJES, October 2016. To consult through: https://cjes.guilan.ac.ir/article_2076.html 140 Principle 22 Declaration of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. 141 The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. 142 Boyle Alan, “Human Rights and the Environment: Where Next?”, EJIL, 2012, p614. 143 Clarke Mark, Hussain Tallat, Langen Markus and Dr. Rosin Peter, “Climate change litigation: A new class of action”, White and Case: Insight, 13 November 2018. To consult through: https://www.whitecase.com/publications/insight/climate-change-litigation-new-class-action 144 Trail Smelter case, United States v. Canada, Reports of international arbitral awards, 16 April 1938 and 11 March 1941, Vol. III p 1905-1982.

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3.2 State sovereignty concerning natural resources

3.2.1 Origin of sovereignty over natural resources 55. For environmental law, the most important principles can be found within customary law. The principle of sic utere tuo ut alienum non laedas is one of the most relevant. This principle pertains to the principle of state sovereignty over its territory and natural resources. The sovereignty of states over territory and natural resources has been limited over time. States have the obligation not to harm the rights of other States with their acts. This principle has governed how States manage, exercise control, and benefit from their natural resources. 56. The principle of sovereignty over one’s natural resources started post World War II. Its origin can be traced back to the struggle between developed and developing states. There was a need from the developing states for things such as the right to self-determination and economic freedom.145 Since the 1950s there has been a multitude of UN General Assembly resolutions, which established the principle of sovereignty over natural resources. Principle 21 of the Stockholm Declaration146 states that no State may cause environmental harm to another or to the environment of the other. “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”147 57. This principle was repeated in Principle 2 of the Rio Declaration.148 Both of these principles were soft-law instruments pertaining to the damage to another State. This principle was also added, sometimes in a different form, to binding and non-binding international instruments. Article 3 of the CBD149 and article 194 (2) of UNCLOS150 have a similar provision. The principle can also be found in non-environmental legal instruments. A few are Art 1(2) of the International Covenant on Civil and Political Rights151 and Article 1(2) of the International Covenant on Economic, Social and Cultural Rights.152 58. The statement of the ICJ made in its advisory opinion is relevant: “The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of corpus of

145 Barrera-Hernández Lila, “Sovereignty over Natural Resources under Examination: The Inter-American System for Human Rights and Natural Resource Allocation”, Annual Survey of international and comparitive law, Vol. 12, 2006, p45. To consult through: https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1101&context=annlsurvey 146 Declaration of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. 147 Principle 21 Declaration of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. 148 The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. 149 Convention on Biological Diversity, 5 June 1982. 150 United Nations Convention on the Law of the Sea, 10 December 1982. 151 International Covenant on Civil and Political Rights, 16 December 1966. 152 International Covenant on Economic, Social and Cultural Rights, 16 December 1966.

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international law relating to the environment.”153 We can conclude that it is now part of international law that States must prevent harm to its neighbors and to the global commons. Furthermore, that States must also minimize the risk of any foreseeable harm.

3.2.2 The Amazon rainforest as a natural resource 59. The Amazon rainforest is qualified as a renewable natural resource. It transcends nine different countries, Bolivia, Brazil, Columbia, Ecuador, Guyana, Peru, Suriname, Venezuela, and French Guiana. Therefore it can be classified as a shared or transboundary natural resource. This group of resources is generally the hardest to regulate, as there are multiple interests in place. 60. The Treaty for Amazonian Cooperation154 brings clarity as to the limits of the use of each State. Eight States have decided that the exclusive use and utilization of the natural resources within the territory falls under sovereignty. Furthermore, they decided that there will be no restrictions on the right of sovereignty. The only exceptions that will be made are those restrictions arising from international law.155

3.2.3 Limitation due to environmental law 61. Environmental issues affect the globally interconnected environment, such as climate change. Actions concerning the environment in one country will affect the environment of other countries. The idea of sovereignty over natural resources is that each State has full control over its own territory. It concerns a State’s supremacy and independence.156 States have the possibility to, freely and without coercion, enter into an agreement, which limits their sovereignty. 62. We can often see that the States use their sovereignty as a shield. When states participate in natural resource exploitation, sometimes accompanied by human rights violations, they will often disregard the complaint due to sovereignty. One example is the Saramaka case.157 In this case, Suriname stated that all the natural resources were vested to them. As a result, they were free to grand logging and mining concessions.158 Furthermore, Suriname stated that the indigenous rights to natural resources should be limited to those traditionally used within their activities.159 63. The preamble of the CBD acknowledges the fact that sovereignty over biological resources is the right of each State. Each State is allowed to manage their resources according to their own

153 Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, 8 July 1996 Reports 226, p19-20. 154 Treaty for Amazonian Cooperation, Brazil, 3 July 1978. 155 Art 4 Treaty for Amazonian Cooperation, Brazil, 3 July 1978. 156 Elian G., “The Principle of Sovereignty over Natural Resources”, Springer Netherlands, 1979, p11. 157 Inter-American Court of Human rights, Saramaka case, the Saramaka people v. Suriname, 28 November 2007. 158 Inter-American Court of Human rights, Saramaka case, the Saramaka people v. Suriname, 28 November 2007, par 124. 159 Inter-American Court of Human rights, Saramaka case, the Saramaka people v. Suriname, 28 November 2007, par 125.

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policies.160 At the same time, the CBD also acknowledges that this right is not absolute. It states that the exercise of this right cannot cause damage to the environment of other States or areas outside the limits of their national jurisdiction.161 The importance of this is shown by the fact that in the CBD this was included in both the preamble, but also within its articles. Within the UNFCCC these clauses were included entirely within the preamble.162 As the preambles of an international agreement cannot be changed, and there can be no reservation for it, it shows the importance. States have acknowledged that there is a connection between biological diversity and sovereignty over natural resources. 64. The UNFCCC gives a list of the principles by which the parties should execute the Convention.163 Some of these principles were already in some way mentioned in the CBD. The following principles can be directly linked to sovereignty over natural resources. 65. The first relevant principle found in the CBD is the equity principle. States have the duty to share the benefits arising out of the utilization of resources in a fair and equitable way.164 This principle is expanded on within the UNFCCC. Parties are also asked to protect the climate system for the benefit of present and future generations of humankind on basis of equity.165 This principle can also be found in the preamble and several articles of the Paris Agreement.166 This shows its importance within the legal environmental framework. 66. The principle of sustainable development entails promoting environmental, social, and economic values. The CBD obliges parties to adopt economic and socially sound measures that will conserve the components of biodiversity and use them in a sustainable manner.167 The UNFCCC also includes this principle and states that economic development must proceed in a sustainable manner.168 The Paris Agreement states explicitly that its goals should be accomplished within the context of sustainable development.169 As a result, the right to sovereignty over natural resources needs to be seen within the context of sustainable development, and not against it. 67. The principle of common but differentiated responsibility cannot be directly found within the CBD. It mentions in most of its articles that parties are obliged to do something, as far as possible and as appropriate.170 This principle also made its appearance in the Rio declaration.171

160 Preamble, Convention on Biological Diversity, 5 June 1982. 161 Art 3, Convention on Biological Diversity, 5 June 1982. 162 Preamble, United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 163 Art 3, United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 164 Art 1, Convention on Biological Diversity, 5 June 1982. 165 Art 3 (1), United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 166 Paris Agreement, Paris, 12 December 2015. 167 Art 11, Convention on Biological Diversity, 5 June 1982. 168 Art 2, United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 169 Art 2 and 4, Paris Agreement, Paris, 12 December 2015. 170 Convention on Biological Diversity, 5 June 1982.

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After this, it has been repeated within the UNFCCC172, the Kyoto Protocol173 and Paris Agreement.174 In this context, countries have the common goal of combatting climate change. On the other hand, they are differentiated based on their category, such as developed and developing. This is important as the restrictions on the use of natural resources by the international agreements depend on whether a State falls under the category of developed or developing countries. 68. The precautionary principle entails that States should not wait on clear scientific evidence of an adverse effect on the environment as a reason for postponing to take measures to avoid or minimize this adverse effect.175 This principle was applied to the threat of significant loss or reduction of biological diversity within the preambles of the CBD.176 The principle was then described in Principle 15 of the Rio Declaration177 and later in the UNFCCC art 3 (3).178 The obligation to take measures to avoid or minimize the adverse effect is a limitation on the sovereignty of natural resources. 69. The polluter-pays principle was first introduced as an economic principle. It was introduced by the Organization for Economic Co-operation and Development (OECD).179 It later became a legal principle within the Rio Declaration.180 The main idea of the principle is that the polluter will have to pay for the environmental harm, as a whole, done by its pollution. It can be argued that this principle has been used in the Kyoto Protocol and Paris Agreement as they both take into account past greenhouse gas emissions. This principle puts a high limit on sovereignty over natural resources, as you will need to pay for the damage done by your use. 70. While the CBD is an instrument that focuses on biodiversity, the Paris Agreement has a focus on climate change. Paris Agreement is connected with the sovereignty over natural resources through the UNFCCC. In its preamble, it refers to the inclusion of human rights, the right to health, the rights of indigenous people, the right to development, and the reference to intergenerational equity.181

171 Art 4, The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. 172 Art 3 (1) and 4, United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 173 Art 2, Kyoto Protocol, Kyoto, 11 December 1997. 174 Art 2 (2), Paris Agreement, Paris, 12 December 2015. 175 Cameron James and Abouchar Juli, “The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment” Boston college International and Comperative Law Review, Vol. 14, 1991, p 2. To consult through: https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1335&context=iclr 176 Preamble, Convention on Biological Diversity, 5 June 1982. 177 Principle 15, The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. 178 Art 3 (3), United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 179 Principle A (a) OECD: Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, OECD/Legal/0102, 26 May 1972. 180 Principle 16, The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. 181 Preamble, Paris Agreement, Paris, 12 December 2015.

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71. Climate change is the umbrella of many different environmental factors. The forestry sector is one of these environmental factors. Deforestation contributes to the production of greenhouse gasses, as the trees function as carbon sinks.182 There are international frameworks in place to tackle this issue. The UNFCCC parties referred to the REDD program in the Copenhagen Accord,183 which was later transformed into REDD+. States will need to manage their forests in correspondence with their right of sovereignty over natural resources.

3.2.4 New interpretation of sovereignty over natural resources. 72. Many States have entered into international agreements or treaties. These have resulted in obligations that will impact their sovereignty over natural resources. Not all the articles of the international agreements and treaties are legally enforceable. However, through State practice, some of these have even become customary law.184 We can conclude that over time, there has been a shift in the interpretation and understanding of sovereignty over natural resources by the States.

Rights of the State 73. States have the right to explore and exploit their natural resources in accordance with their national and environmental laws.185 The UN General Assembly has confirmed this right, as long as it conforms with the States duties under international law.186 This right can also be found in a multitude of treaties and case laws. States have the right to use their natural resources for national development. One UN General Assembly resolution recognizes that natural resources lay at the basis for national development. Furthermore, the right over natural resources should be used in the interests of national development.187 According to article 7 of the Charter of Economic Rights and Duties of States (CERDS) States have the primary responsibility to promote the economic, social, and cultural development of its people. By using both the natural resources and the full participation of its people.188 We have seen that mainly developing countries employ this right. During the Kyoto Protocol, they refused to set emission limitations as this would limit national development.189 The Paris agreement brought a change in this attitude. Through the NDC system, developing countries are now also held accountable for their emissions.190

182 X, “The Global Climate Change Regime”, Council on Foreign Relations, 19 June 2013. To consult through: https://www.cfr.org/report/global-climate-change-regime 183 Copenhagen Accord, Copenhagen, COP 15, 7-19 December 2009, p 6. 184 Schrijver Nico, “Sovereignty Over Natural Resources: Balancing Rights and Duties”, Cambridge University Press, 1997, p 307. 185 Schrijver Nico, “Sovereignty Over Natural Resources: Balancing Rights and Duties”, Cambridge University Press, 1997, p 264. 186 UN General Assembly resolution 1515 (XV), 15 December 1960. 187 UN General Assembly resolution 2158 (XXI), 25 November 1966. 188 UN General Assembly resolution 3281 (XXIX), 12 December 1974, Charter of Economic Rights and Duties of States. 189 Kyoto Protocol, Kyoto, 11 December 1997. 190 Paris Agreement, Paris, 12 December 2015.

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74. As can be concluded out of multiple treaties, States have the right to manage their natural resources according to national environmental policy. This right is also indirectly mentioned in the Treaty for Amazonian Cooperation.191 The UNCLOS shows the conflict between sovereignty over natural resources and environmental protection. Articles 192 and 193 states that States have the duty to protect and preserve the marine environment.192 But art 193 also provides that States have the sovereign right over their natural resources.193 As a result, we could state that States are free to use their natural resources and make environmental policies, but they need to take into account the protection and preservation of the marine environment. Looking at the Paris Agreement, we see that the national environmental policy is gradually being influenced by global environmental policy. This results in the right to sovereignty over natural resources being influenced.

Duties of the State 75. One of the first duties States have is that they should exercise their sovereignty over natural resources in consideration with the promotion of the wellbeing of their people. This is accompanied by the promotion of national development.194 The idea behind it is that States must exercise their rights as trustees and use their natural resources for the benefit of their people. Later UN resolutions refer to this duty in a much broader sense. Most UN resolutions before only referred to national development.195 The combination of national development, mainly economic, and promoting the wellbeing of the people, who are protecting the environment, seems to be contradictory. But protecting the environment does not mean there can be no economic growth. For example, as has been shown in the policy of Brazil from 2004 till 2011. There was an enormous decrease in deforestation of the Amazon rainforest, and at the same time, there was economic growth. 76. This duty to promote the wellbeing of the people can be found indirectly in the different International Covenants on Human Rights. People have the right to freely dispose of their natural wealth based upon the principle of mutual benefit.196 Furthermore, art 47 of the ICCPR states that: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources”.197 The same articles are repeated within the ICESCR.198 The treaty for Amazonian Cooperation aims to raise the standard of living for its people. It furthermore finds it is necessary to maintain a balance between “economic growth and conservation of the environment”. However, most importantly, they state that: “both socio-economic development as well as conservation of the environment are responsibilities inherent in the sovereignty of each State”.199 This shows that the right to

191 Art 4 Treaty for Amazonian Cooperation, Brazil, 3 July 1978. 192 Art 192 and 193 United Nations Convention on the Law of the Sea, 10 December 1982. 193 Art 193 United Nations Convention on the Law of the Sea, 10 December 1982. 194 UN General Assembly resolution 1803 (XVII), 14 December 1962. UN General Assembly resolution 2692 (XXV), 11 December 1970. 195 Schrijver Nico, “Sovereignty Over Natural Resources: Balancing Rights and Duties”, Cambridge University Press, 1997, p 309. 196 Art 1 (2) International Covenant on Civil and Political Rights, 16 December 1966. 197 Art 47 International Covenant on Civil and Political Rights, 16 December 1966. 198 Art 1 (2) and 25 International Covenant on Economic, Social and Cultural Rights, 16 December 1966. 199 Preambles of Treaty for Amazonian Cooperation, Brazil, 3 July 1978.

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sovereignty over natural resources should be seen together with the duty for socio-economic development and conservation of the environment. The Earth Charter states “that with the right to own, manage, and use natural resources comes the duty to prevent environmental harm and to protect the rights of people.”200 The Earth Charter is considered a soft law. The Brazilian Minister of environment signed in 2007 a technical cooperation to widely disseminate, promote and use the Earth Charter.201 77. Secondly, States have the duty to conserve and sustainably use their natural resources. According to the Stockholm Declaration, States must safeguard their natural resources for the benefit of the current and future generations.202 States have the responsibility to protect, preserve, and enhance the environment, doing this for the current and future generations. Furthermore, States shall write their environmental and development policies bearing this in mind.203 We could state that protecting and preserving the environment is a State responsibility. Later resolutions enhance the importance of the environment when exercising sovereignty over natural resources. “in the exercise of their permanent sovereignty over their natural resources, to conduct their activities in recognition of the supreme importance of protecting natural systems, maintaining the balance and quality of nature and conserving natural resources, in the interests of present and future generations.”204 78. The Bonn Convention has many references to the conservation of migratory wild animals.205 The preamble mentions that natural resources are meant for future generations. As such, the States should use their natural resources wisely and have an obligation to ensure that they are conserved.206 The CBD affirms that there is sovereignty over natural resources. At the same time, the need for conservation of biological diversity is a common concern of humankind. As such, States are responsible for the conservation and to use of their natural resources sustainably.207 Within the UNFCCC there are many references to sustainable development. Article 2 of the UNCCD refers to sustainable development in affected areas208 and sustainable management of land and water.209 79. The International Tropical Timber Agreement recognizes the right of sovereignty over one’s natural resources. With the limitation that they do not cause harm to the environment of

200 Principle 2 The Earth Charter, The Hague Peace Palace, 29 June 2000. 201 X, “Brazil”, Earth Charter Initiative, 2019. To consult through: http://earthcharter.org/countries/brazil/ 202 Principle 2 Declaration of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. 203 Art 30 UN General Assembly resolution 3281 (XXIX), 12 December 1974, Charter of Economic Rights and Duties of States. 204 Preamble UN General Assembly resolution 37/7, 28 October 1982, World Charter of Nature. 205 Art II (1) and art III (4) Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), Bonn, 1 November 1983. 206 Preamble Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), Bonn, 1 November 1983. 207 Preambles Convention on Biological Diversity, 5 June 1982. 208 Art 2 (1) United Nations Convention to Combat Desertification, Paris, 17 June 1994. 209 Art 2 (2) United Nations Convention to Combat Desertification, Paris, 17 June 1994.

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another State.210 They do want to improve forest management and increase the capacity to conserve other forest values.211 This Agreement also establishes a fund for sustainable management of tropical timber-producing forests. Thereby asking the parties for sustainable sources and sustainable forest management programs.212 The Treaty for Amazonian Cooperation finds it necessary to find a balance between economic growth and conservation of the environment. They want to continue “the joint efforts being made for the ecological conservation of the Amazon region”213. Furthermore, article 1 states that the treaties’ actions should produce “the preservation of the environment, and the conservation and rational utilization of the natural resources of those territories.”214 80. Over time the importance of sustainable use and conservation has grown. If this path continues, it could soon be a principle well established within international law. As has been explained previously, States have the duty to comply with international law. As a result, the States will need to take into consideration international environmental laws when exercising their sovereignty over natural resources. 81. Forests, such as the Amazon rainforest, differ from other resources in that they are common resources. The Amazon rainforest does not just produce water and clean air for Brazil, but for the entire world. The reduction of the Amazon rainforest will also affect the species living within the Amazon rainforest. For these species, their home does not stop at the Brazilian border. As a result, a bird living in Peru can be affected by the deforestation happening within Brazil. One of the duties of the States when exercising sovereignty over its natural resources is that they cannot cause harm to the environment of other States. The nature of the Amazon rainforest alone contains a limitation on the sovereignty over natural resources. One of the most difficult things would be to prove this link in a courtroom. On the other hand, countries would also take in mind that prosecuting Brazil for its deforestation could open the door to being prosecuted themselves. 82. Human rights can also limit sovereignty over natural resources. These rights include economic self-determination and indigenous rights. Due to the nature of this thesis, I will not expand on the subject of economic self-determination. However, it is important to know that it does exist. Within the Amazon rainforest, there are many groups of indigenous people, and land has been designated as indigenous land. But their specific rights and the duties that the government has towards them will be expanded on at a later point in this thesis.

210 Preamble International Tropical Timber Agreement, Geneva, 27 January 2006. 211 Art 1 (f) International Tropical Timber Agreement, Geneva, 27 January 2006. 212 Art 21 and 21 (4) International Tropical Timber Agreement, Geneva, 27 January 2006. 213 Preamble Treaty for Amazonian Cooperation, Brazil, 3 July 1978. 214 Art 1 Treaty for Amazonian Cooperation, Brazil, 3 July 1978.

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3.2.5 Dispute settlements 83. When projects concern shared natural resources, there is a positive obligation to engage in consultation. This was seen in both the Lake Lanoux Case215 and in the Fisheries Jurisdiction Cases216. Consultation is perceived as discussions between States prior to any activity that could lead to a dispute.217 When there has been no consultation or consultation has failed, and a dispute arises, the States will seek negotiations. Negotiations between States can take many forms, and it can also be held in many different fora. When we look at the major environmental instruments, consultation and negotiation are the main methods of dispute settlement.218

3.3 Conclusion: Brazils sovereignty over natural resources 84. For this thesis, we are focusing on the Amazon rainforest as a natural resource. Different treaties and UN resolutions have confirmed the sovereignty of a State over its natural resources. In essence, the Amazon rainforest is transboundary and a shared natural resource, divided between nine countries in South America. The Treaty of Amazonian Cooperation has changed this classification.219 The Amazon rainforest within the borders of Brazil falls under its sovereignty, also applying to the attached natural resources. 85. In essence, Brazil has complete sovereignty over the Amazon rainforest, but there have been some restrictions to this right. The first restriction is that Brazil needs to use the Amazon rainforest in a way that is promoting the wellbeing of the Brazilian people and the national development. In recent times, we have seen an increase in the duty of a State to promote the wellbeing of its people. It can even be found in article 3 of the Brazilian Constitution.220 86. When using the Amazon rainforest, there should be a balance between socio-economic development and the protection of the environment. Another limitation is that Brazil should sustainably manage the Amazon rainforest, which includes deforestation. That will ensure that the Amazon rainforest is accessible to current and future generations. The duty of Brazil to protect and preserve its environment for present and future generations is a right engraved in its constitution.221 Brazil’s sustainable management plan provides restoration of the degraded environment from the exploitation of mineral resources.222 Mineral resources are a type of natural resource. For example, when deforestation happens as a result of mining activities. By law, they are then required to restore the degraded environment, the deforestation. 215 Arbitral Tribunal, France v. Spain (Lake Lanoux), 16 November 1957. 216 ICJ, Case United Kingdom v. Iceland (Fisheries Jurisdiction), judgement 2 February 1973. 217 Soto Max Valverde, “General principles of international Environmental law”, ILSA Journal of Int’l & Comparative law, 1996. To consult through: https://core.ac.uk/download/pdf/51089370.pdf 218 Hutchison Cameron, “The Duty to Negotiate International Environmental Disputes in Good Faith”, McGill International Journal of Sustainable Development Law and Policy, December 2006. To consult through: https://www.mcgill.ca/mjsdl/files/mjsdl/2-2_the_duty_to_negotiate_international_environmental_disputes_in_good_faith.pdf 219 Art 4, Treaty for Amazonian Cooperation, Brazil, 3 July 1978. 220 Art 3 Constitution of the Federative Republic of Brazil, 5 October 1988. 221 Art 225 Constitution of the Federative Republic of Brazil, 5 October 1988. 222 Art 225 Par 2 Constitution of the Federative Republic of Brazil, 5 October 1988.

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87. An important factor is the duty to respect international law. This could lead to an increase of compliance by States to their climate commitments. The first commitment is the international reduction of greenhouse gasses. The second commitment, which results in the restriction of sovereignty over natural resources, is the NDCs of the Paris Agreement. Even Brazil, a developing country, had to submit their NDCs. Within those, it commits to certain emission limitations. Since deforestation is a major emitter of greenhouse gasses, this will need to be taken into consideration. As a result, these commitments will restrict the amount of deforestation in Brazil. In light of these commitments, the excuse for national development has become less acceptable when not reaching the NDCs. 88. One of the major rules when exercising the right of sovereignty over natural resources is that no harm can be done to the environment of other States or areas outside one’s jurisdiction. According to science, forests are used as carbon sinks to withhold the CO2 from the atmosphere. Science has proven that when forests are deforested, this releases the CO2 contained, causing high amounts of greenhouse gas emissions. High amounts of greenhouse gasses then harm the environment of other States or areas outside Brazil/s jurisdiction. So in one way, we could state that Brazil’s deforestation of the Amazon is causing transboundary environmental harm. But legally there is still the problem of proving that it was Brazil’s deforestation that caused the harm and not some industry in another country. 89. When looking at State responsibility, we need to divide the responsibility. A State has a responsibility towards other States, but it also has a responsibility towards its citizens. The big question with State responsibility is who has been harmed and who can prove that Brazil was responsible? In recent years Brazil has made many commitments according to international and national law. When Brazil violates these international commitments, the government can be held accountable. When another State can show that the deforestation happening in Brazil is causing harm to its own environment, they have the possibility to ask for full reparations. The citizens of Brazil also have the possibility to hold Brazil accountable if they find that the deforestation policy is causing them harm by not fulfilling their countries’ commitments. In recent years across the world, we have seen many cases of citizens holding their government accountable for not fulfilling their international commitments. As of now, there have been no such cases in Brazil. 90. It can be concluded that other States can hold Brazil accountable when there has been transboundary harm or a violation of its international commitments. Brazil’s own citizens can hold Brazil accountable when they violate their national or international commitments. This responsibility is a result of the limitations on the sovereignty of natural resources that have been created by Brazil’s commitments in both international and national legal instruments. In the following chapters, I will look more specifically into the commitments that Brazil has made. All these commitments can be related to Brazil’s deforestation of the Amazon rainforest. I will first focus on the international environmental commitments made by Brazil. These commitments will be for the entirety of the Amazon rainforest. Afterward, I will look more into specific protections, and the corresponding commitments, of certain areas within the Amazon rainforest. Lastly, I will look more closely at the national commitments made by Brazil, with the focus on the Constitution and the Forest Code.

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4 INTERNATIONAL AGREEMENTS 4.1 Paris Agreement

4.1.1 Creation through UNFCCC and Kyoto Protocol 91. The United Nations Framework Convention on Climate Change (UNFCCC) provides the foundation to combat climate change in a multilateral way. The Kyoto Protocol of 1997 and the Paris Agreement of 2015 were negotiated within the Conference of the Parties (COP) set up within the UNFCCC. Both of these documents build further upon what was agreed on in the UNFCCC.223 92. The UNFCCC was adopted on the 5th of June 1992. At that time there was only a limited amount of scientific evidence, so they adopted the idea from the Montreal Protocol224 that the Member States need to act in the interest of human safety even when there is scientific uncertainty. The UNFCCC asks the developed countries to lead the way, as they are responsible for past and current greenhouse gas (GHG) emissions.225 93. In itself, the UNFCCC falls under the Vienna Convention226 resulting in the fact that the UNFCCC as a whole can be considered binding. But two questions can be posed concerning the binding power. We need to look at how the articles are formulated in the UNFCC and at the way that it settles possibly arising disputes. Every time the word ‘shall’ is used, it obliges countries to undertake action.227 The word ‘shall’ is used in article 4 of the UNFCCC228 and its related articles. The UNFCCC often uses the sentence ‘the Parties should’. ‘Should’ is not considered legally binding within the international law context. It means that countries have to try, but are not obliged. This difference was made very clear within the Paris Agreement negotiations, as there was almost no Paris Agreement because of the word “shall” instead of ‘should’.229 94. If we focus more on the obligations that are found under article 4 (and the related articles) the article in itself is very vague. There is an agreement that GHG needs to be stabilized to prevent dangerous anthropogenic interference with the climate system.230 But the UNFCCC does not set specific binding limits to the GHG emissions. There are no general binding limits and no binding

223 X, “Understanding the UN Climate change regime”, United Nations Framework Convention on Climate Change, 2019. To consult through: https://unfccc.int/resource/bigpicture/ 224 Montreal Protocol on Substances that Deplete the Ozone Layer, 1 January 1989. 225 United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 226 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. 227 Roberts Timmons, Arellano Angelica, “Is the Paris climate deal legally binding or not?”,” Climate Home News, 2 November 2017. To consult through: https://www.climatechangenews.com/2017/11/02/paris-climate-deal-legally-binding-not/ 228 Art 4 United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 229 Vidal John, “How a 'typo' nearly derailed the Paris climate deal”, The Guardian, 16 December 2015. To consult through: https://www.theguardian.com/environment/blog/2015/dec/16/how-a-typo-nearly-derailed-the-paris-climate-deal 230 Art 2 United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992.

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limits for specific countries. Secondly, the UNFCCC does not contain any enforcement mechanism. As a result, the binding effects of the UNFCCC on countries is very questionable. 95. The UNFCCC does create the commitment from developed countries to take the lead in combatting climate change.231 The developing countries also agreed to combat climate change, but with the financial and technological help of the developed countries. The UNFCCC also creates a framework to open negotiations to limit GHG and created different instances, including a financial mechanism. 96. The Kyoto Protocol was adopted on the 11th of December 1997232. The Kyoto Protocol established legally binding obligations for its Parties. These obligations specify the GHG emission for developed countries. Developed countries had an obligation to reduce GHG emissions by 5% below the 1990 levels by 2012.233 This first period from 2008 to 2012 covered around 50% of the global GHG emissions. It further provides them with a common but differentiated responsibility.234 The Kyoto Protocol, in the beginning, had some issues as one of the leading emitters, namely the United States of America (USA) never ratified the Kyoto Protocol. Later on, it lost more effectiveness as the developing countries started to emit more GHG and other countries such as Russia opted-out.235 97. For Brazil, there were no legally binding GHG emission limitations within the Kyoto Protocol. But Brazil can take part in the established flexible market mechanisms. These allow for a trade in emission permits.236 In this case, it will be impossible to hold Brazil responsible for their deforestation policy through the Kyoto Protocol.

4.1.2 Paris Agreement binding? 98. The Paris Agreement of the 12th of December 2015 for the first time brings all the nations to a common cause. The cause is to combat climate change and to adapt to its effects. It is important to note that main emitters such as the USA and China have also ratified the Paris Agreement. The Paris Agreement still makes a distinction between developed and developing countries, but both categories will have limitations on their GHG emission. They further decided to assist the developing countries with support from developed countries. The main aim of the Paris Agreement can be found in article 2. There is the aim to keep the temperature below 20C

231 Art 3 (1) United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 232 Kyoto Protocol, Kyoto, 11 December 1997. 233 Art 3 (1) Kyoto Protocol, Kyoto, 11 December 1997. 234 X, “Summary of the Kyoto Protocol”, United Nations Framework Convention on Climate Change, 2019. To consult through: https://unfccc.int/resource/bigpicture/ 235 The Climate Group, “Understanding the UNFCCC Negotiations”, 2012. To consult through: https://www.theclimategroup.org/sites/default/files/archive/files/UNFCCC_timeline.pdf 236 X, “Summary of the Kyoto Protocol”, United Nations Framework Convention on Climate Change, 2019.

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above pre-industrial levels and even try to limit the temperature increase to 1.50C above pre-industrial levels.237 99. The Paris Agreement in itself can be considered binding. However, to see if Brazil can be held responsible, we need to look at the specific wording of the articles to know what commitments we can call upon. Furthermore, in theory, only the International Court of Justice (ICJ) is competent for violations of the UNFCCC and its related agreements. Indirectly other international organizations or courts could use these obligations. Using the Paris Agreement within a national court case is possible and has been done a few times, but is at the moment still rare. 100. For the possible responsibility of Brazil, we mainly look at the nationally determined contributions (NDC) found in article 4. The use of the word ‘shall’ in article 4 (2) makes it an enforceable provision within the Paris Agreement.238 There are different ways according to the Paris Agreement in which a State can be held responsible for any violations. The first way is the compliance method, which is based on support compared to the punishments found in the Kyoto Protocol. The compliance of the Parties is referred to as a committee formed out of experts. They will take into account the capabilities and circumstances of the Parties.239 Secondly, the Paris Agreement hopes that the Parties will hold each other accountable, a matter of naming and shaming. Thirdly, the national courts can provide additional accountability pathways.240 Finally, the ICJ is also indirectly, through the UNFCCC, considered to be competent. 101. Article 4 (2) states: “Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.”241 This shall be done every five years.242 The enforceability of this article is the central question to see if there could be any responsibility based on the Paris Agreement. Any violation of these obligations could, theoretically, result in any other Party invoking a breach of the Paris Agreement. This leads to the legal consequences that follow from State responsibility. 102. Indirectly or directly, this also has legal force within the national legal system. Some parameters are put in place that should be used either to interpret the obligations or as a supportive legal mechanism.243 One of the parameters is that the NDC should reflect a country’s highest possible ambition.244 This became a due diligence standard245 which required the governments to

237 Art 2 Paris Agreement, Paris, 12 December 2015. 238 Art 4 (2) Paris Agreement, Paris, 12 December 2015. 239 Art 15 (1-2) Paris Agreement, Paris, 12 December 2015. 240 Taibi Fatima-Zahra and Konrad Susanne, “Pocket Guide to NDCs under the UNFCCC”, DTU Library, 2018, p13. To consult through: http://orbit.dtu.dk/files/149534221/NDCs_layout_web_colour.pdf. 241 Art 4 (2) Paris Agreement, Paris, 12 December 2015. 242 Art 4 (9) Paris Agreement, Paris, 12 December 2015. 243 Voigt Christina, “On the Paris Agreement’s Imminent Entry into Force (Part II of II)”, EJIL: Talk!, 12 October 2016. To consult through: https://www.ejiltalk.org/on-the-paris-agreements-imminent-entering-into-force-what-are-the-consequences-of-the-paris-agreements-entering-into-force-part-ii/ 244 Art 4 (3) Paris Agreement, Paris, 12 December 2015.

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take all the appropriate and adequate measures possible. The legally binding provisions concerning NDC mainly pertain to the procedural rules. There is only one binding obligation concerning the content. Parties need to pursue domestic mitigation measures, with the aim of achieving the objectives of the NDC.246 The Paris agreement does not make the NDC achievements legally binding, but they are linked with the goal of the Agreement itself. The parties are legally obliged to limit the temperature rise to a maximum of 2oC. 103. As seen earlier, the NDCs are also one of the limitations on sovereignty over natural resources. As such we can state that the commitments following out of the NDCs are legally binding for Brazil. Deforestation is one of the main GHG emission sources of Brazil. Reducing the anti-deforestation policy, which will increase deforestation, will also increase the GHG emission. So the Amazon rainforest may be part of Brazil’s sovereignty over natural resources. Nevertheless, they have made commitments to reduce the total emission and achieve zero deforestation by 2030.247 These commitments will limit their sovereignty over natural resources. Moreover, it results in binding obligations for Brazil.

4.1.3 The NDC’s of Brazil 104. Brazil submitted its intended NDC in September 2015. After the Paris Agreement went into force in November 2016, Brazil resubmitted the same document as its official NDC.248 They will need to submit a new or updated NDC in 2020. Brazil has taken 2005 as the reference year for their commitments. Based on the reference year, they promised to reduce GHG emissions by 37% by 2025. This equals an emission level of 1.3 gigatons of CO2 emission in 2025. Furthermore, they will reduce GHG emissions by 43% by 2030. This equals an emission level of 1.2 gigatons CO2

245 X, “Failure on a subject’s part to comply with the standard—often termed negligence—describes the blameworthiness of the subject as one element of ascribing legal responsibility to it.”, Oxford Public International Law, February 2010. 246 Art 4 (2) Paris Agreement, Paris, 12 December 2015. 247 Federative Republic of Brazil, “Additional information on the iNDC for clarification purposes only”, p 3. To consult through: https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20FINAL.pdf 248 REDD+ Brazil, “REDD+ and Brazil’s Nationally Determined Contribution”, Ministério Do Meio Ambiente, 16 October 2018.

Picture 3 Total GHG emission Brazil (Green = emission from land transformation (deforestation)) Source: SEEG Brazil

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emission in 2030.249 This corresponds with a reduction of 6% by 2025 and 16% by 2030 below 1990 levels.250 By 2020 they wish to achieve a gross total, not considering removals, of 2.0 gigatons CO2 emission. Between 2004-2014 they reduced deforestation at an impressive rate of 82%.251 Specifically, concerning the Amazon rainforest, they intend to do the following. They want to strengthen and enforce the implementation of their Forest code on all levels. They want to achieve zero deforestation in the Amazonia region by 2030. And they also want to restore and reforest 12 million hectares of forest by 2030. Lastly, they want to enhance sustainable native forest management, with the goal to curb illegal and unsustainable practices.252

105. Brazil was well on its way to reach its goals since the implementation of action plans and policies in 2005. Since 2004 deforestation dropped drastically (see green line picture 4). By 2009 they had already reached their target of 2020, as their emission was well below 2.0 gigatons CO2 emission. The emissions that Brazil gives to the UNFCCC suggest that in 2012 their GHG

249 Federative Republic of Brazil, “Intended Nationally Determined Contribution”, p1-2. To consult through: https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20FINAL.pdf 250 Federative Republic of Brazil, “Additional information on the iNDC for clarification purposes only”, p 2. 251 Federative Republic of Brazil, “Additional information on the iNDC for clarification purposes only”, p 3. 252 Federative Republic of Brazil, “Additional information on the iNDC for clarification purposes only”, p 3.

Picture 4: emissions and NDC goals Brazil Source: climate change tracker See Appendix I

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emission was 1.2 gigatons of CO2.253 But scientists doubt these emission figures. They state that the government does not include the emission resulting from logging or fires.254 106. The previous government of 2011 has stopped almost all the measures to combat deforestation. The promises of the current government (2019) will most likely further reduce all these measures. The previous government has begun major budget cuts of 70% for the deforestation monitoring authorities and 50% for the Environment Ministry and reversal of the LULUCF policies.255 The current government has eliminated 95% of the Ministry of Environment’s budget for climate change. They have also removed the fines for illegal deforestation that happened before 2008. It has also become easier to convert the fines into alternative compensations. Sadly enough, this will not make a significant difference, as the people violating these laws are not being prosecuted anyhow.256 Since the 2011 government, there has been an increase of deforestation of 36%.257 As a result, we can see that also the emissions of Brazil have started to rise again. The 2019 government suggest that the emission will continue to decrease and all NDC will be met. Scientists, on the other hand, are more doubtful. They find it very risky to say that the targets will be met.258 Furthermore, including the fact that scientists say that the GHG emissions may not be calculated correctly, there is a significant risk that the climate goals of the whole Paris Agreement may not be met.259 In 2019 the current annual deforestation rate (7000 km2) would need to be reduced by two-third to comply with the Paris Agreement.260

4.1.4 Conclusion: Brazil accountable? 107. We can conclude that there is a possibility to hold Brazil accountable for the violation of the following rules. Brazil is violating its obligation to pursue domestic mitigation measures, with the aim of achieving the objectives of the NDC. The previous Brazilian government of 2011 has already changed the climate policies and laws. The current government of 2019 is planning to change them further. These changes are against the conservation of the environment. They will make it easier to deforest the Amazon rainforest, and these changes will affect all their NDC. So we can conclude that this goes against article 4 of the Paris Agreement. Furthermore, based on 253 United Nations Framework Convention on Climate Change, “Emission summary for Brazil”, p 1. To consult through: http://di.unfccc.int/ghg_profiles/nonAnnexOne/BRA/BRA_ghg_profile.pdf 254 Asher Claire, “Brazil’s actual forest-related CO2 emissions could blow up the Paris pledge”, Mongabay: Amazon Agribusiness, 19 April 2018. To consult through: https://news.mongabay.com/2018/04/brazils-actual-forest-related-co2-emissions-could-blow-by-paris-pledge/ 255 X, “Brazil: country summary”, Climate change tracker, 4 December 2018. To consult through: https://climateactiontracker.org/countries/brazil/ 256 X, “Brazil: country summary”, Climate change tracker, 17 June 2019. To consult through: https://climateactiontracker.org/countries/brazil/ 257 “Brazil: country summary”, Climate change tracker, 4 December 2018. 258 Cannon John C., “Brazil hits emission target early, but rising deforestation risk reversal”, Mongabay: Gobal Forests, 23 August 2018. To consult trough: https://news.mongabay.com/2018/08/brazil-hits-emissions-target-early-but-rising-deforestation-risks-reversal/ 259 Asher Claire, “Brazil’s actual forest-related CO2 emissions could blow up the Paris pledge”, Mongabay: Amazon Agribusiness, 19 April 2018. 260Wallace Scott, “Brazil's new leader promised to exploit the Amazon—but can he?”, National Geographic – Environment, 31 October 2018.

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international treaty law261 Brazil cannot act against the object of the treaty, which is to limit the temperature rise to 2oC. They can also not call upon the sovereignty over natural resources. Commitments and international law create limitations to exercising the right to sovereignty over natural resources. 108. Brazil can be held accountable on an international level, receiving for example sanctions from other countries and international pressure. Another way is in front of an international court, this will be very difficult as there are almost no procedures available. There is also the fact that there needs to be evidence of a breach of the treaty. There also needs to be proof of transboundary harm. This will be difficult to provide and to show that it was Brazil individually who has done the damage. We can not forget that there will be other countries that are violating their commitments. It will not be likely they will go to court as they could have the risk of being incriminated themselves. The best international accountability will be the possibility of ‘naming and shaming’ by other Parties. 109. Accountability on a national level will be more likely. In recent years there has been an up march of people suing their governments. They either find that their government is not setting the standard high enough for the NDC or that they are not doing enough to reach the targets. In national courts, we have seen that there can be a conviction based on the Paris Agreement.262 In a recent case in New Zealand, it was determined that a court does have jurisdiction concerning NDC.263 What we have seen in the case in Norway is that the court looks at all the mitigation measures taken to see if the government is following its obligations. It is important to note that in some cases, the courts look at all the measures the countries are taking, and not just a single issue.264 25 young people held a national court case against the Colombian government. They accused the government of the violation of their national and international obligations. The international obligations concerned the obligations under the Paris Agreement to reduce deforestation of the Amazon rainforest to zero by 2020. As a result of the case, the Columbian Amazon region was given a legal personality. This makes it a lot easier to protect the environment within this region.265 This means that it is possible for the Brazilian people to hold their government accountable. Till now there has been no similar Brazilian case.

261 Art 18 Vienna Convention on the Law of Treaties, 27 January 1980. 262 Hague District Court, Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396, 24 June 2015. 263 Lawson Frances, “The litigation effect of the Paris Agreement – New Zealand and Norway take the baton”, Six Pump Court, 4 December 2017. To consult through: http://www.6pumpcourt.co.uk/2017/12/the-litigation-effect-of-the-paris-agreement-new-zealand-and-norway-take-the-baton/ 264 Associated Press, “Norway court clears ways for controversial Arctic drilling”, CBC, 4 January 2018. To consult through: https://www.cbc.ca/news/canada/north/norway-court-arctic-drilling-1.4472884 265 Brilman Marina, “Environmental rights and the legal personality of the Amazon Region”, EJIL:Talk!, 24 April 2018. To consult through: https://www.ejiltalk.org/environmental-rights-and-the-legal-personality-of-the-amazon-region/

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4.2 UN Convention on Biological Diversity

4.2.1 Introduction to the Convention on Biological Diversity 110. The UN Convention on Biological diversity (CBD) entered into force on the 29th of December 1993.266 At the moment the CBD is signed by a total of 196 countries around the world.267 The CBD has three main objectives. The first objective is to conserve biological diversity. The second objective is the sustainable use of the components of biological diversity. And the third objective is the fair and equitable sharing of benefits arising out of the utilization of genetic resources.268 Since these are the objectives, no party may act against them. According to the Vienna Convention, a State cannot perform acts against the objective and the purpose of a treaty it is subjected to.269 111. Biological diversity is defined as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.”270 In the years before this agreement, there was a considerable decline in biological diversity. The CBD wanted its parties to minimize the negative impacts on biological diversity. They ask the parties to integrate sustainable use and conservation in their decisions.271 112. Again the language within the CBD is fundamental. It is the language used that shows which articles are legally binding and which are not. The CBD uses the word ‘shall’ many times. The word ‘shall’ can be replaced by the word ‘must’, showing a legal obligation. As a result, the CBD is a legally binding convention.272 It is known as a framework convention, which means that it sets general principles and guidelines. This means that it is up to the individual parties to decide how the goals and principles should be implemented. This is then done at the national level.273 A tricky part of the CBD is that in many articles, the sentence “as far as possible and as appropriate” can be found. This gives some leeway to parties on how to implement the legally binding commitments. This sentence creates a thin grey area that allows for a broader interpretation or an excuse.

266 X, “Introduction”, Convention on Biological Diversity: Safeguarding life on Earth, 2019. To consult through: https://www.cbd.int/intro/ 267 X, “List of Parties”, Convention on Biological Diversity: Safeguarding life on Earth, 2019. To consult through: https://www.cbd.int/information/parties.shtml 268 X, “Introduction”, Convention on Biological Diversity: Safeguarding life on Earth, 2019. 269 Art 18 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. 270 Art 2 Convention on Biological Diversity, 5 June 1982. 271 Snape III William J., “Joining The Convention On Biological Diversity: A Legal and Scientific Overview of Why the United States Must Wake Up”, Sustainable Development Law and Policy, Vol. 10, Issue 3, 2010, p 8. To consult through: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1043&context=sdlp 272 Sakiyama Melina and Schwarer Christian, “CBD in a nutshell”, Global Youth Biodiversity Network, 2016, p8. To consult through: https://www.cbd.int/youth/doc/cbd_in_a_nutshell.pdf 273 Sakiyama Melina and Schwarer Christian, “CBD in a nutshell”, Global Youth Biodiversity Network, 2016, p57.

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113. The Parties to the CBD have around 15 binding commitments. These are found within the articles 6 till 20 of the CBD. The commitments range from measures and incentives for conservation, research and training, education, impact assessment, and more.274 This paper focuses on the deforestation of the Amazon rainforest. So, only the relevant articles on this topic will be discussed. 114. Article 6 introduces the commitment to create general measures.275 Each party has to create its own national strategies, plans, and programs. Article 7 CBD asks parties for identification and monitoring.276 Each party has to identify its essential biological diverse components for conservation and sustainable use.277 These then have to be monitored.278 The same has to be done for the processes and categories of activities that can have an adverse effect.279 According to article 8 CBD parties need to participate in-situ conservation measures.280 Following this commitment parties need to establish a system of protected areas.281 Article 9 CBD asks parties to take measures to ensure ex-situ conservation.282 This concerns conservation measures outside the natural biotope, which is less relevant in this thesis. According to the commitment in article 10 CBD the parties need to sustainably use the components of biodiversity.283 The parties are committed to taking the conservation and sustainable use of biological resources within their national decision-making.284 Based on article 14 the parties have the obligation to require environmental impact assessments (EIA). The EIA is necessary when projects are “likely to have significant adverse effects”.285 115. Following article 6 CBD each party has to develop National Biodiversity Strategies and Action Plans (NBSAPs).286 This creates an obligation for each party. They need to plan their national biodiversity. This includes specific targets, which need to fulfill the three objectives of the CBD.287 Due to their nature, the NBSAPs are legally backed documents.288 274 Sakiyama Melina and Schwarer Christian, “CBD in a nutshell”, Global Youth Biodiversity Network, 2016, p61-62. 275 Art 6 Convention on Biological Diversity, 5 June 1982. 276 Art 7 Convention on Biological Diversity, 5 June 1982. 277 Art 7 (a) CBD. 278 Art 7 (b) CBD. 279 Art 7 (c) (d) CBD. 280 Art 8 CBD. 281 Art 8 (a) CBD. 282 Art 9 CBD. 283 Art 10 CBD. 284 Art 10 (a) CBD. 285 Art 14 (a) CBD. 286 Art 6 (a) Convention on Biological Diversity, 5 June 1982. 287 Sakiyama Melina and Schwarer Christian, “CBD in a nutshell”, Global Youth Biodiversity Network, 2016, p146. 288 Pisupati Balakrishna, Obrecht Andreas and Mobegi Tomkeen, “Law and National Biodiversity Strategies and Action Plans”, the Law Division for the United Nations Environment Programme, 2018, p11. To consult through: https://wedocs.unep.org/bitstream/handle/20.500.11822/25655/LawBiodiversity_Strategies.pdf?sequence=1&isAllowed=y

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4.2.2 Application on Brazil 116. Each party of the CBD has to develop national strategies, plans, or programs.289 The idea is to implement measures found in the CBD, which are relevant to that party, in this case Brazil. Sustainable use and the conservation of biological diversity need to be implemented as well.290 As of the 5th of February 2018, Brazil has submitted its new NBSAP for the period 2016-2020.291 These have to be submitted in accordance to article 6 CBD. 292 Within the NBSAP, Brazil has established the target to reduce deforestation of the legal Amazon by 80%. This reduction is compared with the average rate in the period 1999-2008.293

117. As can be seen in the graphs above in the year 2012, Brazil was close to the 80% reduction. Sadly enough, we also have to conclude based on the second graph that since the year 2012 there has been an increase in deforestation.294 Seeing this upward trend, it is hard to believe that Brazil will reach its target by 2020. 118. Based on Aichi target 11, Brazil has set the target that at least 30% of the Amazon will be conserved through protected areas.295 This is a target set for the NBSAP it is also in accordance 289 Art 6 (a) Convention on Biological Diversity, 5 June 1982. 290 Art 6 (b) Convention on Biological Diversity, 5 June 1982. 291 X, “Latest NBSAP submitted”, National Biodiversity Strategies and Action Plans (NBSAPs). 292 Art 6 (a) Convention on Biological Diversity, 5 June 1982. 293 Ministry of Environment, secretariat of Biodiversity, “National Biodiversity Strategy and Action Plan”, Secretariat of Biodiversity, p43. To consult through: https://www.cbd.int/doc/world/br/br-nbsap-v3-en.pdf 294 McCarthy Niall, “Brazil sees worst deforestation in decade”, Statista. 295 Ministry of Environment, secretariat of Biodiversity, “National Biodiversity Strategy and Action Plan”, Secretariat of Biodiversity, p75, 90.

Picture 5: Average deforestation rate “Brazilian Agreement on Amazon deforestation”, Earth Innovation Institute.

Picture 6: deforestation rate Brazil in km2 McCarthy Niall, “Brazil sees worst deforestation in decade”, Statista.

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with article 8 CBD.296 In 2019 around 28% of the Amazon consists out of the protected areas.297 This is still some amount beneath the target of 30%. Since the government of 2019 is starting to reduce the number of conservation units, it is hard to believe they will meet the target by 2020. Brazil in accordance with article 8 CBD has created a system of protected areas.298 This system was explained earlier in this thesis under ‘past and current government policy’. 119. Article 14 CBD asks Brazil to require the EIA when projects are “likely to have significant adverse effects”.299 The new government (2019) is trying to make it as easy as possible to develop the Amazon rainforest. They only require EIAs for projects that are considered ‘huge thing’. So only enormous projects such as the BR-319 Highway have to do an EIA. But even then most of the EIA are favorable in comparison with independent studies. The BR-319 Highway is a road of around 890 km going through the Amazon rainforest. The EIA done for the BR-319 Highway said that there would be no increase in deforestation.300 Independent studies indicate that within 25km of a highway, 87% of the deforestation within the Amazon rainforest happens.301 At the end of January 2019, the government in office has transferred the responsibility of environmental licensing to the Ministry of Agriculture.302 The Environment ministry previously did this licensing. It has been known for years that the agriculture business is against the restrictive protection of the Amazon rainforest. As a result, it is likely that many projects will now get a favorable answer.

4.2.3 Conclusion 120. The CBD is a crucial document that was created to conserve biodiversity. Moreover, we can conclude that Brazil is breaking some of its commitments. While they did submit their own NBSAP it is hard to say that Brazil will fulfill them. Brazil will not reduce its deforestation with the percentage that it has been committed to. This is hard to enforce through accountability. Brazil can be held accountable for not reaching its target of protected areas in the Amazon, as this also violated article 8 of the CBD. Another violation is article 14 CBD that requires EIAs. It is clear from Brazil’s new policy that they are either avoiding the EIAs or making it so that the projects pass the test. Brazil’s policy is also greatly against the objectives of the CBD. 296 Art 8 Convention on Biological Diversity, 5 June 1982. 297 X, “Panel of Conservation Unites in Brazil”, Ministry of Environment, 2019. 298 Art 8 (a) Convention on Biological Diversity, 5 June 1982. 299 Art 14 (a) Convention on Biological Diversity, 5 June 1982. 300 Laurance William and Salt David, “Environmental impact assessments aren't protecting the environment”, Cosmos Magazine. To consult through: https://cosmosmagazine.com/climate/environmental-impact-assessments-aren-t-protecting-the-environment 301 Ritter Camila D., McCrate Gabriel, Nilsson R. Hendrik, Fearnside Philip M., Palme Ulrika and Antonelli Alexandre, “Environmental impact assessment in Brazilian Amazonia: Challenges and prospects to assess biodiversity”, Science direct: Biological conversation, 8 January 2017. To consult through: https://www.sciencedirect.com/science/article/pii/S0006320716311223 302 Rocha Jan, “Bolsonaro government reveals plan to develop the ‘Unproductive Amazon” Mongabay series: Amazon infrastructure, 28 January 2019. To consult through: https://news.mongabay.com/2019/01/bolsonaro-government-reveals-plan-to-develop-the-unproductive-amazon/

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121. Brazil can be held accountable on an international level, for example by receiving international pressure. The main reason for Brazil’s accountability is violating the objective of the CBD. This is a reasonably well put into stone in international treaty law. While personally, I find that Brazil could also be held accountable for not reaching its commitments, this will be harder to convince a judge for. It is compulsory for disputes, such as accountability, to be settled through either arbitration or the ICJ.303 The question again is if parties will be willing to go to court. So far the only reason parties have gone to the ICJ is for transboundary damage. Scientists have said that the destruction of the Amazon rainforest will affect many countries. In court, we still need to prove, cause and damage and a link between the two. This will be extremely hard, so my guess is that the court will not accept it. 122. Till now there have been no national cases against any government concerning accountability based on the CBD. So it is hard to know if it would be possible for the Brazilian people to take the government to the national court. It has been done with the Paris Agreement, so in my opinion, it could be possible to do the same with the CBD.

4.3 REDD+

4.3.1 History and main goals 123. Forest cover about 30% of the world’s surface, and they play a vital role in the water cycle. About 2 billion people rely on forests for their survival.304 REDD was created to conserve these forests. So instead of countries getting paid for cutting down their trees, they would get paid to conserve them. 124. Forests are viewed differently in treaties depending on if their focus is climate change or biodiversity. Under the UNFCCC forests are regarded as carbon sinks and resources. On the other hand, the Convention on Biological Diversity305 views forests as habitats and components of biodiversity.306 REDD+ needs to take both of these views into consideration. 125. The seeds of REDD were planted within articles 2 and 3 of the Kyoto Protocol of 1997.307 At the 2005 COP11 in Montreal Papa New Guinea asked to add agenda item: “Reducing emissions from deforestation in developing countries: approaches to stimulate action”308 In 2007 at the COP13 in Bali, the Reducing Emissions from Deforestation and Degradation (REDD) program

303 Art 27, 3 (a)(b) Convention on Biological Diversity, 5 June 1982. 304 X, “We need to safeguard our forests”, WWF, 2019. To consult through: https://wwf.panda.org/our_work/forests/importance_forests/ 305 Convention on Biological Diversity, 5 June 1982. 306 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p402. 307 Art 2 (1) and 3 (2), Kyoto Protocol, Kyoto, 11 December 1997. 308 UNFCCC COP11, Item 6 of the provisional agenda, 15 November 2005.

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was introduced.309 In December 2008 the scope of the program was expanded to include “conservation, sustainable management of forests and enhancement of forest carbon stock in developing countries”, forming REDD+.310 The idea was that a narrower focus might lead to a perverse outcome.311 126. Most of the rules of REDD+ are created within the Conference of the Parties (COP) meeting. The COP reviews the implementation of the Conventions and other legal instruments adopted by the COP.312 The decisions are seen as part of the normative environment. They will influence the substantive obligations of Parties in numerous ways.313 Depending on the language used within the COP decisions, a decision can be legally binding or not. Between 2007 and 2015 the Parties of the UNFCCC have adopted a total of 16 decisions within the COP.314 Their aim is to slow, halt and reverse forest cover and carbon loss.315 127. Following COP decisions in 2007 and 2008, developing countries are encouraged to undertake the following activities:“(a) Reducing emissions from deforestation; (b) Reducing emissions from forest degradation; (c) Conservation of forest carbon stocks; (d) Sustainable management of forests; (e) Enhancement of forest carbon stocks”316 (a) and (b) refer to REDD and (c), (d), and (e) were added for REDD+. These in accordance with their capabilities and national circumstances.317 128. The Cancun Agreements of 2010318 has sketched out some of the details of the REDD+ mechanism.319 It encourages countries to contribute to climate change mitigation by participating

309 UNFCCC COP Decision 2/CP.13, Reducing emissions from deforestation in developing countries: approaches to stimulate action, 3 December 2007. 310 X, “Who takes the credit?: REDD+ in a post-2020 UN climate agreement”, Fern, June 2015. To consult through: https://www.fern.org/fileadmin/uploads/fern/Documents/Who%20takes%20the%20credit%3F.pdf 311 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p295. 312 X, “Conference of the Parties (COP)”, UNFCCC, 2019. To consult through: https://unfccc.int/process/bodies/supreme-bodies/conference-of-the-parties-cop 313 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p400. 314 X, “UNFCCC Negotiations”, UNFCCC REDD+ Web Platform, 2019. To consult through: https://redd.unfccc.int/fact-sheets/unfccc-negotiations.html 315 UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011, p12. 316 Paragraph 70 UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011, p12. 317 UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011, p12. 318 UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011. 319 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p395.

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in REDD+ activities.320 The success depends on the implementation of the REDD+ mechanism, which is neither going to be quick or easy.321 129. The Warsaw Framework of 2014 consists out of 7 decisions pertaining to REDD+. Some of the decisions taken include the following. It confirms that the result-based payments can come from anywhere.322 They also establish an information hub on the REDD web platform. Here information will be published on the results and the accompanying payments.323 There are many decisions concerning the national forest monitoring system, such as which guidelines to use and the need for transparency.324 The developing countries are asked to provide a summary of how the safeguards are implemented.325 They also decided that the forest reference emission levels and/or forest reference levels shall be subjected to a technical assessment.326 130. The latest COP decisions relating to the REDD+ program are from COP21 in 2015. This is the same COP that produced the Paris Agreement. One of the decisions pertains further guidance on the transparency of the implemented safeguards.327

4.3.2 Is it binding? 131. Both the UNFCCC and the CBD are binding to the Parties. This means that the parties need to fulfill their commitments under these treaties in good faith, based on the principle pacta

320 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p396. 321 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p397. 322 UNFCCC COP Decision 9/CP.19, Work programme on results-based finance to progress the full implementation of the activities referred to in decision 1/CP.16, paragraph 70, 22 November 2013. 323 UNFCCC COP Decision 9/CP.19, Work programme on results-based finance to progress the full implementation of the activities referred to in decision 1/CP.16, paragraph 70, 22 November 2013. 324 UNFCCC COP Decisions 11/CP.19, “Modalities for national forest monitoring systems”, 22 November 2013. 325 UNFCCC COP Decision 12/CP.19, “The timing and the frequency of presentations of the summary of information on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected”, 22 November 2013. 326 UNFCCC COP Decision 13/CP.19, Guidelines and procedures for the technical assessment of submissions from Parties on proposed forest reference emission levels and/or forest reference levels”, 22 November 2013. 327 UNFCCC COP Decision 17/CP.21, Further guidance on ensuring transparency, consistency, comprehensiveness and effectiveness when informing on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected, 10 December 2015.

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sunt servanda.328 Both conventions also prohibit the creation of specific reservations to their provisions by the Parties.329 132. UNFCCC initially adopted indicative guidance concerning REDD+ in the Annex of their decision 2/CP13.330 This mentions that they “should be consistent with sustainable forest management”331 noting relevant provisions, of the UN Forum on Forests, the United Nations Convention to Combat Desertification (UNCCD)332 and the CBD.333 These references show the willingness of the Parties to take the guidance provided in other international instruments. 133. The CBD COP in 2008 called upon its Parties to ensure that REDD+ activities “do not run counter to the objectives of the Convention on Biological Diversity”, but “to support the implementation” and “provide benefits”.334 The CBD COP in 2010 further decided that the Parties needed to consider “the guidance on ways to conserve, sustainably use and restore biodiversity and ecosystem services while contributing to climate change mitigation and adaptation”.335 134. In accordance to the Cancun Agreements in 2011 REDD+ activities need to be “consistent with the conservation of natural forests and biological diversity” and “not used for the conversion of natural forests, but are instead used to incentivize protection and conservation of natural forests and their ecosystem services, and to enhance other social and environmental benefits”.336 One of the safeguards in Appendix 1 is that REDD+ should complement and is consistent with national forest codes and international conventions and agreements.337 135. The REDD+ program was for the first time explicitly put in a legally binding treaty, the Paris Agreement, in 2015. Reducing deforestation is essential to reach the goal of the Paris Agreement. According to article 5 of the Paris Agreement, parties should conserve and enhance 328 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p402-403. 329 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p403. 330 UNFCCC COP Decision 2/CP.13, Reducing emissions from deforestation in developing countries: approaches to stimulate action, 3 December 2007. 331 Annex (8), UNFCCC COP Decision 2/CP.13, Reducing emissions from deforestation in developing countries: approaches to stimulate action, 3 December 2007. 332 United Nations Convention to Combat Desertification, Paris, 17 June 1994. 333 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p403. 334 para 2 (a) CBD COP Decision IX/5, Forest biodiversity, UN doc. UNEP/CBD/COP/DEC/IX/5, 9 October 2008. 335 Para 8 CBD COP Decision X/33, Biodiversity and Climate Change, UN doc. UNEP/CBD/COP/DEC/X/33, 29 October 2010. 336 Appendix I, 2 (e) Cancun Agreements, Decision 1/CP.16, 15 March 2011. 337 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p400.

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GHG sinks and reservoirs.338 This in accordance with article 4 UNFCCC, which obliges parties to conserve and enhance GHG sinks and reservoirs.339 The Paris Agreement asks all parties to set their own NDC’s. These have to be in line with the goal of the Paris Agreement. Most tropical countries are including the emissions from deforestation and forest degradation into their calculations.340

4.3.3 Payment to conserve forests 136. The REDD+ mechanism tries to exchange payment for reducing carbon emission caused by deforestation.341 REDD+ is a performance-based mechanism, according to the Warsaw Framework. This means that payments will only be made when there is verified evidence that emissions from forest loss have been reduced.342 137. To get the payment, they will need to sell their extra carbon (carbon held within the forests) on the UN carbon market.343 The payments can come from everywhere. Some REDD+ projects get funding from the World Bank. This funding allows investors to purchase carbon credits from developing countries with forest stock.344 Brazil, for example, gets paid by Norway and Germany through the Amazon Fund345 and by the World Bank through the Green Climate Fund.346 Both of these have specific rules that need to be fulfilled before any payment is made. 138. Some scientists have shown their concern that the selling and buying of extra carbon can lead to double-counting. This means that both the selling and the buying country will reduce this

338 Art 5 (1) Paris Agreement, Paris, 12 December 2015. 339 Art 4, 1 (d) United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. 340 Kill Juta, “From REDD+ projects to ‘jurisdictional REDD+’: more bad news for the climate and communities”, World Rainforest Movement, 10 July 2010. To consult through: https://wrm.org.uy/articles-from-the-wrm-bulletin/section2/from-redd-projects-to-jurisdictional-redd-more-bad-news-for-the-climate-and-communities/ 341 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p151. 342 UNFCCC COP Decision 9/CP.19, Work programme on results-based finance to progress the full implementation of the activities referred to in decision 1/CP.16, paragraph 70, 22 November 2013. 343 Kill Juta, “From REDD+ projects to ‘jurisdictional REDD+’: more bad news for the climate and communities”, World Rainforest Movement, 10 July 2010. 344 Crippa Leonardo A., “REDD+: its potential to melt the glacial resistance to recognize human rights and indigenous peoples’ rights at the world bank” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p123. 345 X, “The Amazon Fund”, REDD+ Brasil: Ministério do meio ambiente, 16 October 2018. To consult through: http://redd.mma.gov.br/en/finance/the-amazon-fund 346 Sax Sarah, “Brazil to receive first-ever results-based REDD+ payment, but concerns remain”, Mongabay Series: Global Forests, 1 March 2019. To consult through: https://news.mongabay.com/2019/03/brazil-to-receive-first-ever-results-based-redd-payment-but-concerns-remain/

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extra ‘stored’ carbon from their emissions.347 In other words, countries will be reaching their NDCs, while the carbon in the atmosphere is not reduced.

4.3.4 The human aspect 139. While the following chapters will more explicitly address human and indigenous rights, I found it necessary also to address it under REDD+. 140. The REDD+ safeguards are the minimum requirements that need to be respected and addressed by everyone who funds or implements REDD+.348 These safeguards can be found within the Cancun Agreements. Two of the seven safeguards pertain to human rights. The first safeguard says, “actions complement or are consistent with the objectives of national forest programmes and relevant international conventions and agreements”.349 The second safeguard asks to respect indigenous rights. This includes the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)350, international obligations and national laws and circumstances.351 Paragraph 8 of the Cancun Agreements emphasizes that “Parties should, in all climate change related actions, fully respect human rights”.352 The preamble also takes note of Resolution 10/4353 of the United Nations Human Rights Council (UNHCR) on human rights and climate change.354 141. This means that governments are obliged to follow their own national laws and to comply with international human rights. This includes filling in the gaps in their laws and policies.355 Many different international instruments are relevant to REDD+. These include, but are not limited to, the UNDRIP, International Labour Organization (ILO) Convention 169356, Universal Declaration of Human Rights (UDHR)357, International Covenant on Civil and Political Rights (ICCPR),358 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)359. Basically, all the developing countries, which are parties to the UNFCCC and are eligible for the REDD+ programs, have ratified these final two founding human rights treaties.360 347 “Who takes the credit?: REDD+ in a post-2020 UN climate agreement”, Fern, June 2015. 348 Silverman Allison, “Know your rights related to REDD+”, Center for International Environmental Law, May 2014, p6. To consult through: https://redd.unfccc.int/uploads/2_79_redd_guide_may2014.pdf 349 Appendix I, 2 (a), UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011. 350 United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007. 351 Appendix I, 2 (c), UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011. 352 Para 8 Cancun Agreements, Decision 1/CP.16, 15 March 2011. 353 Resolution 10/4. Human rights and climate change, 25 March 2009. 354 preamble 7 Cancun Agreements, Decision 1/CP.16, 15 March 2011. 355 Silverman Allison, “Know your rights related to REDD+”, Center for International Environmental Law, May 2014, p9. 356 Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 5 September 1991. 357 Universal Declaration of Human Rights, Paris, 10 December 1948. 358 International Covenant on Civil and Political Rights, 16 December 1966. 359 International Covenant on Economic, Social and Cultural Rights, 16 December 1966. 360 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p409.

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142. Within the Cancun Agreements, the UNFCCC COP has placed great importance on respecting human rights. Besides the need to engage “a broad range of stakeholders at the global, regional, national and local levels” they also add that “effective participation of women and indigenous peoples are important for effective action on all aspects of climate change”.361 To be more specific the Agreements request that the developing countries, when implementing REDD+ national strategies and action plans to address: “the drivers of deforestation and forest degradation, land tenure issues, forest governance issues, gender considerations and the safeguards”. This is to ensure “the full and effective participation of relevant stakeholders, indigenous peoples and local communities”362 143. The REDD+ safeguards protect rights such as the right to self-determination, rights to land Lands, Territories, and Natural Resources, the right to participation, and access to information.363 While human rights are universal, they focus on the people living in or around the forests or who depend on its resources.364 It is important to ensure that REDD+ activities do not affect the human rights of the indigenous people or the forest-dependent communities.365 144. In COP 17, the developing countries agreed to provide a summary of information on how the safeguards are being addressed and respected. This summary of information concerns the implementation of REDD+ activities. Furthermore, it should be submitted periodically.366 This information should be transparent and consistent. It should be regularly updated, and all relevant stakeholders should have access.367 145. The land targeted by REDD+ often belongs to the indigenous peoples.368 But still they often feel left out by the REDD+ program. One of the reasons is that the national and subnational governments often exclude the indigenous people on the matters of forest policy.369 Another 361 Para 7 Cancun Agreements, Decision 1/CP.16, 15 March 2011. 362 Para 72 Cancun Agreements, Decision 1/CP.16, 15 March 2011. 363 Silverman Allison, “Know your rights related to REDD+”, Center for International Environmental Law, May 2014, p13. 364 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p411. 365 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p408. 366 Para 3-4 Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16, Decision 12/CP. 17, 15 March 2012, p16. 367 Para 2 (b) Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16, Decision 12/CP. 17, 15 March 2012, p16. 368 Crippa Leonardo A., “REDD+: its potential to melt the glacial resistance to recognize human rights and indigenous peoples’ rights at the world bank” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p123. 369 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p162.

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reason is that indigenous peoples do not have a globally unified position on REDD+.370 Each indigenous tribe has its own view with regard to REDD+. These views are formed by their differences in circumstances and in interests such as culture and history.371 It can be argued that the actors funding REDD+ or buying REDD-generated offsets could be held liable, indirectly or directly.372 The impact on human rights depends on how REDD+ is implemented by the government. Even though, the main impact will be on the use and access to land and resources.373

4.3.5 Brazil 146. As mentioned in the introduction, the Brazilian Amazon rainforest encompasses a total of one third of the world’s remaining forest. The Amazon is important for the REDD+ program as the Amazon holds approximately 9 to 14 billion tons of carbon. Brazil is the world’s thirteenth largest carbon dioxide emitter.374 In 2017 46% of the greenhouse gasses is the result of deforestation.375 Brazil is the leader among developing countries within the REDD+ program.376 147. Brazil’s REDD+ program works with result-based payments. This means that Brazil receives money based on the amount of extra carbon it keeps within its forests. This extra carbon is to the actions taken by the REDD+ program. The country paying Brazil can reduce its own carbon emissions with the amount of extra carbon from Brazil. This system is called ‘market based’. In other words, developed countries are buying carbon from developing countries.377 148. Brazil is receiving money for the REDD+ program through both the Green Climate Fund and the Amazon Fund. Between 2006 and 2015 Norway has paid, through the Amazon fund, for Brazil;s REDD+ program. In 2013 the Norwegian government signed a new donation agreement

370 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p163. 371 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p163. 372 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, p411. 373 Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer,, p411. 374 X, “CO2 emissions: ranking top 20”, Global Carbon Atlas, 2017. To consult through: http://www.globalcarbonatlas.org/en/CO2-emissions 375 Phillips Dom, “Brazil records worst annual deforestation for a decade”, The Guardian, 24 November 2018. To consult through: https://www.theguardian.com/environment/2018/nov/24/brazil-records-worst-annual-deforestation-for-a-decade 376 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p159. 377 Zwick Steve, “How Markets And Mother Earth Each Found A Home In The Paris Climate Accord”, Ecosystem marketplace, 15 December 2015. To consult through: https://www.ecosystemmarketplace.com/articles/redd-paris/

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for REDD+ projects until the end of 2020.378 Germany also bought extra carbon through the Amazon Fund for the period 2008-2010. This was paid in the period 2010 till 2017.379 149. The Amazon Fund uses the following calculation to decide the reduced emissions of deforestation in tons of carbon. They subtract the Annual Deforestation Rate to the period considered from the Average of Deforestation Rate and then multiply this by the Emission factor. The emission factor used to be 100 tC/ha, but was increased in 2012 to 132.2 tC/ha. For the period 2006 to 2010, the average deforestation rate was calculated from the period 1996 to 2005. The period 2011 to 2015, the average deforestation rate was calculated from the period 2001 to 2010 and so on.380 150. The Amazon biome in Brazil is the first REDD+ result-based payment approved. The payment is for the results derived from reducing emissions from deforestation in the period 2014 and 2015.381 Questions have been asked concerning the Forest reference level 1996-2010. In that period, deforestation was exceptionally high. This means that the current deforestation could double and Brazil would still get paid.382 Between 2014 and 2015 the deforestation in the Amazon even increased by almost 25%.383 One of the problems is that once Brazil receives its funding, there are no commitments to keep this carbon locked up.384 151. Brazil has also included its REDD+ program within their NDCs.385 This is important as that now makes it part of a legally binding treaty, the Paris Agreement. Brazil has made REDD+ a key instrument to reaching its commitments under the UNFCCC.386 Besides its NDCs, Brazil also voluntarily set a national goal to reduce emissions. Brazil has agreed to reduce GHG emissions between 36.1% and 38.9% of projected emissions by 2020.387 There are further no national laws specifically for REDD+. 378 X, “Donations”, Amazon Fund, 2019. To consult through: http://www.fundoamazonia.gov.br/en/donations/ 379 X, “Donations”, Amazon Fund, 2019. 380 X, “Amazon Fund”, Norwegian Government, 28 February 2013, p14-17. To consult through: https://www.regjeringen.no/contentassets/2ecbe3693ac04a85bf4d8ddb5d78d858/20130303_amazon_fund_project_document_mma.pdf 381 X, “REDD+ results-based payments for results achieved by Brazil in the Amazon biome in 2014 and 2015”, Green Climate Fund, 11 March 2019. To consult through: https://www.greenclimate.fund/projects/fp100 382 Kill Jutta, “Misguided funding: Green Climate Fund support for REDD+”, World Rainforest Movement, 14 May 2019. To consult through: https://wrm.org.uy/articles-from-the-wrm-bulletin/section1/misguided-funding-green-climate-fund-support-for-redd/ 383 Sax Sarah, “Fears of a dire precedent as Brazil seeks results-based REDD+ payment”, Mongabay Series: Global Forests, 25 February 2019. To consult through: https://news.mongabay.com/2019/02/fears-of-a-dire-precedent-as-brazil-seeks-results-based-redd-payment/ 384 Kill Jutta, “Misguided funding: Green Climate Fund support for REDD+”, World Rainforest Movement, 14 May 2019. 385 X, “REDD+ and Brazil’s Nationally Determined Contribution”, REDD+ Brasil: Ministério do meio ambiente, 16 October 2018. To consult through: http://redd.mma.gov.br/en/redd-and-brazil-s-ndc 386 X, “REDD+ and Brazil’s Nationally Determined Contribution”, REDD+ Brasil: Ministério do meio ambiente, 16 October 2018. 387 Art 12 Law No. 12187 Brazilian National Policy on Climate Change, 29 December 2009.

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152. Almost 23% of the Amazon consists out of Indigenous Territories.388 This means that hundreds of thousands of indigenous people live within the Amazon. The REDD+ program directly affects all these people. This is why I will also shortly be addressing them under REDD+, and more broadly later on. 153. Indigenous people have historically been the protectors of the forest as they depend on it for survival. The main problem within Brazil is the landownership of indigenous territories. Usually, the REDD+ payments go to the indigenous tribe, for their restricted use of the land. But in Brazil, the State owns the indigenous land. This means that the government could challenge the indigenous tribes for the REDD+ benefits.389 154. The first question the indigenous tribe should decide is if they want a REDD+ program.390 This choice is a trade-off between the maintenance of traditional lifestyles and possibly generating income.391 On the one hand, they can receive financial and other resources necessary for improving the indigenous communities.392 On the other hand, their traditional land use will be limited. 155. Sometimes the indigenous tribes are not offered an actual choice. Since only the indigenous lands that are demarcated (registered with the government) are protected against exclusion.393 This means that the government can implement limited access and restrictions. This can limit their access to necessary resources and as a result damage the indigenous way of life.394

4.3.6 Conclusion 156. There are multiple angels to be considered when talking about holding Brazil responsible based on REDD+. 157. While the deforestation of the Brazilian Amazon has increased, they are still receiving REDD+ payments. Brazil is complying with all the safeguards, frameworks, laws put in place to receive their result-based payment. I personally do not like the way the ‘extra carbon’ is calculated, but it does comply with all the rules.

388 Brazil, “Brazil REDD+ Results Based Payments Use of Proceeds towards Floresta+ Pilot Program and ENREDD+ Implementation: Draft Environmental and Social Management Framework”, Green Climate Fund Funding Proposal for REDD+ RBP Pilot Program, 13 september 2018, p24. 389 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p173. 390 Silverman Allison, “Know your rights related to REDD+”, Center for International Environmental Law, May 2014, p24. 391 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p170. 392 Ibid, p170. 393 Ibid, p172. 394 Ibid, p172.

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158. When in 2015 REDD+ was added to the Paris Agreement this changed some of the rules. Now the REDD+ program needs to comply with the goal of the Paris Agreement. Since deforestation within the Amazon is increasing again, it is unlikely that Brazil will reach its NDC target. While we can hold Brazil accountable, it is better to do this for the whole Paris Agreement and not just for REDD+. Under the Paris Agreement chapter, I explained how it would be possible to hold Brazil accountable. 159. The most likely way to hold Brazil accountable is through human rights violations. People and indigenous people have the option to either go to an international court or to a national court. Some international courts are only available after exhausting national remedies. It is possible to take Brazil to a national court for not following its international human rights commitments. The multiple land invasions and not informing or taking into account the indigenous people are enough reasons. 160. There are only a few international platforms available. These include the Inter-American Commission on Human Rights, The UN Human Rights Council, Dispute resolution processes within UN-REDD, the Forest Carbon Partnership Facility (FCPF) and the World Bank Inspection Panel. 161. So far, there have been no Brazilian cases concerning the REDD+ program.

5 DESIGNATED AREAS 5.1 RAMSAR site

5.1.1 Ramsar convention 162. The Ramsar convention is also known as the convention on Wetlands. This convention provides a framework for the conservation and wise use of wetlands and its resources.395 It was the first treaty that took an ecosystem approach to conservation instead of focusing on a single species.396 The Ramsar Convention was signed in 1971 in the city of Ramsar. 170 member states of the UN are Parties to Ramsar, including Brazil.397 The Ramsar convention has three pillars. Parties need to wisely use all of their wetlands, designate wetlands for the Ramsar list, and cooperate internationally.398

395 X, “About the Ramsar convention”, ramsar, 2019. To consult through: https://www.ramsar.org/about-the-ramsar-convention 396 Griffin Pamela, Ali Saleem, “Wetland Diplomacy: Transboundary Conservation and Ramsar”, Our World: United Nations University, May 2012. To consult through: https://ourworld.unu.edu/en/wetland-diplomacy-transboundary-conservation-and-ramsar 397 X, “Contracting Parties to the Ramsar Convention”, Ramsar, 14 June 2019. To consult through: https://www.ramsar.org/sites/default/files/documents/library/annotated_contracting_parties_list_e.pdf 398 Ramsar Secretariat, “Introducing the Convention on Wetlands”, Ramsar, 2014. To consult through: https://www.ramsar.org/sites/default/files/documents/library/introducing_ramsar_web_eng.pdf

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163. The Ramsar convention is considered a legally binding convention. This can also be derived from the language used within the articles.399 When signing the treaty, the parties have to designate at least one site within their territory.400 These areas will be put together on the List of Wetlands of International Importance (Ramsar List). The criteria for what can be considered a wetland is explained within the convention401 and within its guidelines. The Parties have obligations that pertain firstly to all Ramsar sites and secondly to all wetlands, including those not found on the Ramsar List. 164. Parties are obliged to implement and formulate their planning in a way that promotes the conservation of all the wetlands on the list, even those abroad.402 Parties have an obligation to at all times monitor their wetlands, and the areas included within the Ramsar list. They will need to notify if there is any change in the ecological character of the site.403 When a change has occurred, the site will be added to the Montreux Record.404 The Montreux Record is also called the Record of Ramsar sites where changes in ecological character have occurred, are occurring, or are likely to occur.405 The purpose of the Montreux Record is to identify the sites that are in need of positive national and international conservation attention.406 It will also guide the implementation of the Monitoring Procedure and the allocation of financial resources.407 When requested by a Party, a Ramsar Advisory mission can be established, which can provide expert guidance.408 165. Parties are allowed, for an urgent national interest, to delete or restrict the boundaries of an area of the list. When doing so, they should compensate for this loss. Creating additional nature reserves can do this. These should be an adequate portion of the original habitat.409 Till August 2019 no Ramsar site has ever been deleted, and only exceptionally rarely have sites been restricted.410 399 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 400 Art 2 (4) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 401 Art 2 (2) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 402 Art 3 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 403 Art 3 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 404 X, “Change in ecological character”, Ramsar, 2019. To consult through: https://www.ramsar.org/sites-countries/change-in-ecological-character 405 Annex Ramsar COP Resolution 5.4, The Record of Ramsar sites where changes in ecological character have occurred, are occurring, or are likely to occur (Montreux Record), June 1993. 406 Ramsar COP Resolution 5.4, The Record of Ramsar sites where changes in ecological character have occurred, are occurring, or are likely to occur (Montreux Record), June 1993. 407 Ramsar COP Resolution 5.4, The Record of Ramsar sites where changes in ecological character have occurred, are occurring, or are likely to occur (Montreux Record), June 1993. 408 X, “Change in ecological character”, Ramsar, 2019. 409 Art 4 (2) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 410 X, “Change in ecological character”, Ramsar, 2019.

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166. The Parties have the obligation to promote, as far as possible, the wise use of their wetlands. This concerns both the wetlands on the Ramsar List, but also those that are not included.411 Parties also have the obligation to the conservation of wetlands and waterfowls by establishing nature reserves, even for wetlands not on the Ramsar List. The Parties shall, through management endeavor to increase the waterfowl populations. They shall also promote the training of personnel competent in the fields of management, wardening, and wetland research.412 167. The International Union for Conservation of Nature and Natural Resources (The Secretariat) is the bureau that shall keep track of the Ramsar list. They will be informed of any changes, deletions, or restrictions concerning the wetlands on the list.413 They also need to be notified of any changes to the ecological character of the sites.414 168. Within the Ramsar convention, no mention can be found on how parties need to settle disputes. The responsibility to enforce the treaty lies with the individual countries.415 But there have been cases before the ICJ, were States have asked to judge if there was a breach of the Ramsar convention. These always pertained a trans-boundary dispute. As such the ICJ accepted this but decided there were no breaches.416 Countries are asked to report their progress in implementing the convention to the Secretariat. This often happens too late or inadequately.417

5.1.2 Ramsar sites in Brazil 169. Brazil currently has a total of 27 Ramsar sites.418 With a total of 26,794,454 hectares (ha) Brazil has the largest area protected under Ramsar.419 10 Ramsar sites are located within the Amazon region; Rio Juruá, Rio Negro, Amazon Estuary and its Mangroves, Viruá National Park, Anavilhanas National Park, Cobo Orange National Park, Guaporé Biological Reserve, Ilha do Banal, Baixada Maranhense Environmental Protection Area, and Reentrancias Maranhenses. The first three Ramsar sites were all designated in 2018.420 411 Art 3 (1) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 412 Art 4 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 413 Art 8 (2) (b) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 414 Art 8 (2) (c) Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. 415 Van Dam Anne, “Wetlands: important for nature and for people”, IHE Delft, 31 January 2019. To consult through: https://www.un-ihe.org/stories/world-wetlands-day-2019-ramsar-convention-wetlands-remains-important 416 ICJ, Case Nicaragua v. Costa Rica (construction of a road along San Juan River), judgment 16 December 2015, para 47. 417 Van Dam Anne, “Wetlands: important for nature and for people”, IHE Delft, 31 January 2019. 418 X, “Brazil”, Ramsar, 2019. To consult through: https://www.ramsar.org/wetland/brazil 419 X, “Country Profiles”, Ramsar, August 2019. To consult through: https://www.ramsar.org/country-profiles 420 X, “Ramsar sites: Brazil”, Ramsar sites information service, 2019. To consult through: https://rsis.ramsar.org/ris-

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170. The Rio Negro is the world’s largest Ramsar site, covering over 12 million ha.421 This site composes out more than 20 conservation unites. Its designation as such will greatly increase the connectivity of Brazil’s protected areas.422 The Amazon Estuary and its Mangroves consist out of a corridor for 23 conservation units. It is also important for connectivity, as it is adjacent to 4 existing Ramsar sites.423 424 171. At the moment, none of these sites have experienced a change in ecological character. As such they are not on the Montreux list. No Ramsar site has been deleted, or its area restricted, and President Bolsonaro has no intention to change this. 172. Apparently, the deforestation is not happening in internationally recognized areas. There is also no deforestation in areas that are attracting lots of tourists.425 The question can be asked if there is no punishment for illegal logging if it will also start happening in the Ramsar sites. 173. All Ramsar sites are supposed to be protected by national laws and regulations. In it’s National Report on the implementation of the Ramsar convention on wetlands (National Report) Brazil states that one of its most successful aspects of the implementation of the Ramsar convention is that more considerable attention has been given to the implementation in 2016 and 2017 by the Ministry of environment.426 They also find it a priority to implement a Ramsar strategy in Brazil.427 It is sad to say that we cannot be so sure anymore if these things will happen. The budget for the Ministry of Environment has been cut by 95% for climate change related issues.428 Knowing that the general budget for the Ministry of Environment has already been cut by 50%.429

search/brazil?solrsort=designationdate_dt%20desc&language=en&pagetab=1&f%5B0%5D=regionCountry_en_ss%3ALatin%20America%20and%20the%20Caribbean&f%5B1%5D=regionCountry_en_ss%3ABrazil 421 X, “Brazil designates some of the world´s largest wetlands, from the Amazon basin to the island reefs”, Ramsar, 13 June 2018. To consult through: https://www.ramsar.org/news/brazil-designates-some-of-the-worlds-largest-wetlands-from-the-amazon-basin-to-the-island-reefs 422 X, “Rio Negro”, Ramsar sites information service, 2019. To consult through: https://rsis.ramsar.org/ris/2335 423 Cobo Orange National Park, Baixada Maranhense Environmental Protection Area, Reentrancias Maranhenses, and Parque Estadual Marinho do Parcel Manoel Luís. 424 X, “Brazil designates some of the world´s largest wetlands, from the Amazon basin to the island reefs”, Ramsar, 13 June 2018. 425 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 426 Brazil, “National Report on the implementation of the Ramsar convention on wetlands”, Ramsar COP13, 1 March 2018, p10. To consult through: https://www.ramsar.org/sites/default/files/documents/importftp/COP13NR_Brazil_e.pdf 427 Brazil, “National Report on the implementation of the Ramsar convention on wetlands”, Ramsar COP13, 1 March 2018, p 10. 428 X, “Brazil: country summary”, Climate change tracker, 17 June 2019. 429 X, “Brazil: country summary”, Climate change tracker, 4 December 2018.

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174. There is a massive lack of protection of conservations sites. It is mainly the parks that have tourists that will have rangers. One of the main problems with rangers is a practical and organizational problem. The Ramsar sites are extremely big, and some areas are in a very remote location. Therefore it is though to maintain rangers. As mentioned before, most areas only have one manager, 2 to 3 employees, and about three rangers.430 175. In their National Report, they mentioned that one of their greatest issues was financial and human resources.431 When we add this problem to the already cut budget of the Ministry of Environment and the shortage of rangers, it is hard to imagine that Brazil is reaching its commitments under the Ramsar convention. So while it is great that they are designating more areas, they probably won’t be able to conserve them. 176. The main problem here is that there are no articles or guidelines within the Ramsar convention that pertain to dispute settlements. Because of this, Parties are free to decide how to settle their disputes. As mentioned before, there have been some cases before the ICJ, but they pertain trans-boundary disputes. The people of Brazil have the option of calling upon a violation of the Ramsar convention before a national court. 177. For the most part, Brazil is fulfilling its obligations under the Ramsar convention. But we can also detect certain violations. For these, it is possible to hold Brazil accountable. We will first focus on possible accountability for the Ramsar sites. Brazil can be held accountable for violating its obligations under article 3 of the Ramsar convention. With the limited resources available, it is hard to imagine that Brazil will be informed as early as possible of any changes in the ecological character of the Ramsar sites. With the relaxing of the national laws and the existing environmental protection laws not being enforced conservation of the Ramsar sites are difficult to maintain. 178. Brazil can mainly be held accountable for its policy for the wetlands that are not in the Ramsar list. Most areas in the Amazon, excluding the areas that are internationally protected, have little to no government protection. With multiple areas being completely logged (sometimes illegally) and opened up for mining, they are not using their wetland territory wisely. Since there are already not enough rangers and now the budget has been cut, the shortage is not likely to improve. This is a violation of article 4 of the Ramsar convention, which asks to promote the training of personnel. 179. We can conclude that while new Ramsar sites are being allocated and none of them are on the Montreux List or have been deleted or restricted, Brazil is not fulfilling all its commitments. As such, they can be held accountable for these violations.

430 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 431 Brazil, “National Report on the implementation of the Ramsar convention on wetlands”, Ramsar COP13, 1 March 2018, p10.

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5.2 UNESCO

5.2.1 World Heritage Convention 180. The Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage convention) aims at both the preservation of cultural sites and the conservation of nature. It recognizes the interaction of people with nature and the fundamental need to preserve the balance between the two.432 The idea to combine cultural and natural sites originally comes from the United States of America. The World Heritage convention was signed in 1972 in Paris and operates under the umbrella of UNESCO.433 181. The World Heritage convention is a binding convention to its Parties. The punishment for violating (not adequately conserving a site) is limited. The World Heritage convention only provides for the deletion of sites from its list. Also, no provisions were made that pertain to possible dispute settlements. As such, this falls under general international law. 182. One of the benefits of ratifying the World Heritage convention is access to the World Heritage Fund. Every year about US$ 4 million is made available for identifying, preserving, and promoting World Heritage sites.434 An added bonus is that the World Heritage concept today is a magnet for international cooperation and as such receives funding from a multitude of sources.435 183. The most significant bonus of the inscription of a site on the World Heritage list is that it increases public awareness of the site. This then increases touristic activities, increasing the funds of the site and the local economy.436 184. The Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value (the World Heritage Committee) is composed out of 21 States Parties. These Parties are chosen by the General Assembly of States Parties to the World Heritage Convention.437 185. As this thesis concerns the Amazon rainforest, I will not go into detail about the cultural heritage sites. I will restrict my focus to natural heritage sites. Natural heritage is defined in the World Heritage convention as:

• “natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

• geological and physiographical formations and precisely delineated areas which 432 X, “The World Heritage convention”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/convention/ 433 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 434 X, “The World Heritage convention”, UNESCO, 2019. 435 X, “The World Heritage convention”, UNESCO, 2019. 436 X, “The World Heritage convention”, UNESCO, 2019. 437 Art 8 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972.

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constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

• natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”438

186. Parties have to submit a list to the World Heritage committee with all the possible sites that are within their territory and suitable for inclusion on the list of world heritage. The World Heritage committee will then decide which sites shall be placed on the ‘World Heritage list’.439 The sites on the list undergo Reactive Monitoring by different actors on the state of conservation of the site, which is reported to the World Heritage committee.440 When a site is threatened by serious and specific damages (such as natural disaster, war, and human development) they will be added to the List of World Heritage in Danger.441 187. The World Heritage list includes a total of 1121 sites in 167 countries. Most of the protected sites are cultural heritage sites. The list includes 869 cultural sites and 213 natural sites, and 39 are a mix of both sites. The List of World Heritage in Danger consists out of 53 sites.442 188. Parties have the obligation to do all they can to identify, protect, conserve, present, and transmit the sites to future generations.443 To do this, they are obliged, where such services do not exist, to set up services for protection, conservation, and presentation. This needs to be done with the appropriate staff.444 Taking the appropriate legal and financial measures to protect and conserve a site is also the obligation of a Party.445 Parties have committed not to undertake any deliberate measures that might directly or indirectly damage the heritage sites.446 189. When the World Heritage committee finds that a site has deteriorated to a point were it has irretrievably lost those characteristics, which determined its inscription on the World Heritage list, it will consider the deletion of the site from the World Heritage list.447 So far this has only been

438 Art 2 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 439 Art 11 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 440 Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, 12 July 2017, p 47. 441 Art 11 (4) Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 442 X, “World Heritage List”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/list/ 443 Art 4 Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 444 Art 5 (b) Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 445 Art 5 (d) Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 446 Art 6 (3) Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. 447 Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, 12 July 2017, p49.

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done twice, the Dresden Elbe Valley (cultural site) in 2009 and the Arabian Oryx Sanctuary (natural site) in 2007.

5.2.2 World Heritage sites in Brazil 190. Brazil has a total of 22 sites on the World Heritage list. Of these 7 are natural sites, 14 are cultural sites, and 1 is a combination of the two.448 Only the Central Amazon Conservation Complex is located within the Amazon rainforest.449 191. The Central Amazon Conservation Complex is the largest protected area in the Amazon. It covers over 6 million ha and has one of the richest biodiversities in the world. This site used to be 4 separate sites, the Jaú National Park, Anavilhanas National Park, Amanã Sustainable Development Reserve, and Mamairauá Sustainable Development Reserve.450 One of the sites the Anavilhanas National Park is also protected under the Ramsar convention.451 192. Rivers mainly naturally define the boundaries of the site. The national parks are under the management of the Ministry of Environment and the Sustainable Development reserves under the Amazonas State Conservation Units Centre (CEUC). Except for the Amanã reserve, each of the sites have a management plan. Jaú National Park and Mamairauá Sustainable Development Reserve have needs related to international tourism, which requires them to have well-defined public use plans.452 193. One of the high generals of Brazil made an interesting statement in May 2019. He said that he did not accept the idea that the Amazon is world heritage and that this idea is nonsense. The Amazon is Brazilian, its heritage is Brazilian, and it should be dealt with by Brazil for its own benefit.453 The government has also cut the funds, as mentioned above, for the Ministry of Environment. 194. Out of the national reports and interview, it has become clear that the natural sites within the Amazon are in no imminent threat. These sites attract a considerable amount of tourists each year, which comes with international attention. The government is not touching these areas and trying to show that it is protecting the Amazon rainforest.454

448 X, “Interactive Map: Brazil”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/interactive-map/?search=&id_states=br 449 X, “Central Amazon Conservation Complex”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/list/998 450 X, “Central Amazon Conservation Complex”, UNESCO, 2019. 451 X, “Ramsar sites: Brazil”, Ramsar sites information service, 2019. 452 X, “Central Amazon Conservation Complex”, UNESCO, 2019. 453 Adghirni Samy, “Brazil Tells the World: The Amazon Rainforest Is Ours, Not Yours”, Bloomberg, 10 May 2019. To consult through: https://www.bloomberg.com/news/articles/2019-05-10/amazon-rainforest-is-ours-and-not-yours-brazil-tells-the-world 454 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019.

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195. So at this time, I can state that there has been no violation of the World Heritage convention, focused on the Amazon. But with the way the politics are going, there is a high likelihood that in the future there will be a violation. 196. If a violation does happen, there are a few things that we can do to hold Brazil responsible. As mentioned before the only thing the World Heritage committee can do is deleting a site from its list. By the time this happens, it is already too late and the site is irretrievably lost. There has recently been a case in Bulgaria where they were able to stop the government’s plan to open a nature site to constructions.455 In international courts, there have also been some World Heritage related cases. The International Criminal Court (ICC) has convicted a person for destroying one of the cultural heritage sites.456 There was also an ICJ case between Thailand and Cambodia about the World Heritage site the temple of Preah Vihear.457 While these cases pertain to cultural sites, the obligations of the States or persons remain the same for natural sites. As such you the ICC and the ICJ can also apply the same rules to natural sites.

5.3 Conclusion: Ramsar & UNESCO 197. At this point on time, there are no problems with either the Ramsar sites or the World Heritage sites. Neither of these sites has been put on its danger list. Of course we need to remember that most of the information about the conservation and management of these sites is provided by the government of Brazil. While some information is gathered by the International Union for the Conservation of Nature (IUCN) and UNESCO, the Secretariat and the World Heritage committee respectively mainly take into account the reports of the individual States. 198. At the moment no violations can be found by Brazil to the World Heritage convention. The Ramsar convention is another question. This convention also protects wetlands outside the Ramsar list. And it is in those wetland areas that violations can be seen. There are violations to articles 3 and 4. 199. While we have heard that Brazil tries to protect the areas with international value and which are common tourist destinations, the question is how long they can keep this up. With huge budget cuts and already a shortage of staff, it is likely that Brazil will violate both the World Heritage convention and the Ramsar convention in the near future. 200. If there are violations, making Brazil accountable, there is the option to either go to an international court or a national court. Both conventions do not state how to settle disputes, so it falls under international law. In most cases, only the national courts of Brazil will be available for dispute settlement. The ICJ will only deal with trans-boundary disputes between Brazil and

455 Konstantin Ivanov, “Final court decision stops attempt to open up Pirin World Heritage site for construction”, WWF, 17 January 2019. To consult through: http://www.wwf.eu/campaigns/living_land/?uNewsID=341532 456 ICC, Case The Prosecutor v. Ahmad Al Faqi Al Mahdi, judgement, 27 September 2016. 457 ICJ, Case Cambodia v. Thailand (Temple of Preah Vihear), judgement 11 November 2013.

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another country. For violations to the World Heritage convention the ICC is also a possibility, but only in case of war crimes by individuals.

5.4 Indigenous Lands

5.4.1 Indigenous people in Brazil 201. Throughout the Amazon rainforest, there are several indigenous tribes. The indigenous tribes are very diverse. Some tribes are fully integrated, while other tribes live closed off from the world. 458 The closed off tribes consist out of less than a 1000 people.459 One of the most important things about these tribes is that they do not come into contact with people, as there is a risk for spreading diseases.460 These non-contacted tribes therefore also protect the forest they live in, as people are not allowed to go near them.461 202. The people living in the Amazon rainforest have proven to be its best guardians. The fact that the ecosystem within the Amazon is still so rich today proves that they have found a balance between their lifestyle and nature.462 While indigenous peoples only cover less than 5% of the human population, they hold 25% of the world’s land surface and over 80% of the global biodiversity.463 203. Climate change and environmental protection are crucial for the survival of the indigenous tribes. Their culture depends on an intact ecosystem and the services it provides.464 For example, the most severe scenario within the Brazilian Amazon is the risk that extreme drought will

458 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p153. 459 I bought a rainforest (Peru 2014) 460 I bought a rainforest (Peru 2014) 461 Tim Boekhout van Solinge, Deforestation Crimes and Conflicts in the Amazon, 17 September 2010, Springer Science+Business Media B.V. 2010. 462 Raygorodetsky Gleb, “Indigenous peoples defend Earth's biodiversity—but they're in danger”, National Geographic, 16 November 2018. To consult through: https://www.nationalgeographic.com/environment/2018/11/can-indigenous-land-stewardship-protect-biodiversity-/ 463 Raygorodetsky Gleb, “Indigenous peoples defend Earth's biodiversity—but they're in danger”, National Geographic, 16 November 2018. 464 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p159.

Picture 7: Indigenous lands Source: RAIG

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permanently transform the Amazon into Savannah.465 This could cause enormous problems for the indigenous people. 204. In the minds of the Bolsonaro government, the indigenous peoples and their territories are the main things in the way of developing the Amazon region. Most indigenous territories are rich in natural resources such as gold. While this land is the property of the Brazilian State, more than one fifth of the Brazilian Amazon indigenous people, have the legal right to manage them.

5.4.2 International 205. On the 27th of June 1989, the ILO adopted Convention 169 on indigenous and tribal peoples. This convention was a revision of the previous Convention 107, adopted in 1957.466 The main goal of Convention 169 is to protect the human rights of the indigenous people and to recognize their aspirations to exercise control over their own institutions, ways of life, and economic development.467 Till today only 23 countries that have signed the Convention 169, with Brazil only ratifying it in July of 2002.468 The ILO Conventions 169 is legally binding.469 206. The government is not allowed to use any force or coercion that will violate the human rights and fundamental freedom of the indigenous peoples.470 The social, cultural, religious, and spiritual values and practices of these peoples shall also be recognized and protected. Furthermore, the integrity of the values, practices, and institutions of the indigenous peoples shall be respected.471 The culture and practices of the indigenous peoples are in danger. There are multiple reports on illegal intruders who are cutting new parts in the forest and invading the territories. If this continues, it will threaten the way of life of the indigenous peoples.472 207. Governments are obliged to consult the indigenous peoples when administrative or legislative measures may directly affect them. The aim of this consultation is to reach an

465 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p159. 466 Swartz Chris, “After 30 years, only 23 countries have ratified indigenous and tribal peoples Convention ILO 169”, cultural survival, 5 June 2019. To consult through: https://www.culturalsurvival.org/news/after-30-years-only-23-countries-have-ratified-indigenous-and-tribal-peoples-convention-ilo 467 Preamble, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 468 Swartz Chris, “After 30 years, only 23 countries have ratified indigenous and tribal peoples Convention ILO 169”, cultural survival, 5 June 2019. 469 Art 38, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 470 Art 3 (2), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 471 Art 5, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 472 X, “Brazil: Risk of bloodshed in the Amazon unless government protects Indigenous peoples from illegal land seizures and logging”, Amnesty International, 7 May 2019. To consult through: https://www.amnesty.org/en/latest/news/2019/05/brazil-risk-of-bloodshed-in-the-amazon-unless-government-protects-indigenous-peoples-from-illegal-land-seizures-and-logging/

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agreement or consent to the proposed measures.473 A recent proclamation of the Minister of mines and energy goes directly in against this obligation. The Bolsonaro government has stated that it would open up the indigenous lands to mining, without the consent of the indigenous people. They do say that the indigenous peoples will get a voice, but there is no possibility to veto the decision.474 The question that can be asked is, what is the voice worth if you cannot say ‘no’? 208. The indigenous peoples have the right to participate in the formulation, implementation, and evaluation of plans and programs that may affect them directly.475 The government is obliged to ensure that studies are carried out to assess the social, spiritual, cultural, and environmental impact. The result is considered a fundamental criterion for the implementation of the planned development activities.476 209. The government has an obligation to protect and preserve the environment of the territories.477 The fact that environmental protection of the territories is explicitly stated within the ILO Convention 169 shows the importance of this. 210. The government has to safeguard the rights of the indigenous peoples to the natural resources found on their land. This includes that they have the right to participate in the use, management, and conservation of these resources.478 The government is planning on violating this right and start mining on the indigenous territories for natural resources.479 211. It is not allowed to remove the indigenous peoples from their lands.480 President Bolsonaro had stated that not one centimeter of land would be demarcated for indigenous reserves. This means that he wants to get rid of the indigenous lands within Brazil. He does not want the designation of indigenous land to stop him from developing the region.481

473 Art 6, Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 474 Branford Sue, Torres Maurício, “Brazil's Bolsonaro government wants to circumvent the constitution to allow mining on indigenous lands”, Pacific Standard, 15 March 2019. To consult through: https://psmag.com/environment/bolsonaro-government-wants-to-open-indigenous-land-to-mining 475 Art 7 (1), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 476 Art 7 (3), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 477 Art 7 (4), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 478 Art 15 (1), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 479 Branford Sue, Torres Maurício, “Brazil's Bolsonaro government wants to circumvent the constitution to allow mining on indigenous lands”, Pacific Standard, 15 March 2019. 480 Art 16 (1), Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. 481 Swartz Chris, “After 30 years, only 23 countries have ratified indigenous and tribal peoples Convention ILO 169”, cultural survival, 5 June 2019.

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212. There also exists a UN Declaration on the Rights of indigenous peoples, adopted by the General Assembly on the 13th of September 2007. I will not further expand on this UN Declaration, as it is not legally binding.482

5.4.3 National laws 213. Brazil was one of the first countries in the Amazon Basin to start recognizing indigenous rights. It was the 1988 Constitution, which established very strong legal protections offered to the indigenous peoples. 214. The Brazilian government has the obligation to recognize the original rights of the indigenous peoples to their traditionally owned land. It is incumbent of the government to demarcate and protect these lands.483 This means that the government officially recognizes the territories belonging to each tribe. Since most of the characteristics of indigenous people are closely linked with their territory, they form the foundation of the offered protection.484 The Presidential Degree 1.775 in 1993 decreased indigenous rights. Anyone that had an interest in the land could challenge the demarcation. This caused a total of eight indigenous lands being adjusted or eliminated.485 215. The Indigenous Affairs Department (FUNAI) (Fundação Nacional do Índio), is tasked with the demarcation and regulation of the indigenous lands and the protection of the rights of indigenous peoples. Over the years, FUNAI has been plagued by a lack of funds and personnel.486 On the first day in office, president Bolsonaro transferred the responsibility of the demarcation and regulation of the indigenous lands from FUNAI to the Ministry of Agriculture.487 But the Brazils National Congress has overturned this change, which has by many been considered a huge victory.488 216. But while they are officially recognized, the Brazilian State still owns the land of the indigenous peoples.489 The indigenous peoples only have the exclusive usufruct490 of the riches of

482 United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007. 483 Art 231, Constitution of the Federative Republic of Brazil, 5 October 1988. 484 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p155-156. 485 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p157. 486 Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, p156. 487 Watson Fiona, “In just 100 days, Jair Bolsonaro has destroyed the lives of Brazil's indigenous people”, Independent, 10 April 2019. To consult through: https://www.independent.co.uk/voices/jair-bolsonaro-brazil-indigenous-people-president-100-days-a8863161.html 488 Mendes Karla, “Brazil’s Congress reverses Bolsonaro, restores Funai’s land demarcation powers”, Mongabay: Amazon Illegal Deforestation, 5 June 2019. To consult through: https://news.mongabay.com/2019/06/brazils-congress-reverses-bolsonaro-restores-funais-land-demarcation-powers/ 489 Art 20, XI, Constitution of the Federative Republic of Brazil, 5 October 1988. 490 Dutch = vruchtgebruik

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the soil, the lakes, and the rivers within their territories.491 The indigenous lands are also inalienable and indisposable.492 It is forbidden to remove the indigenous peoples from their lands, except in an emergency situation that is a threat to them.493 217. The many statements of the Brazilian government have resulted in an increase of violence, land invasions, and attacks in the indigenous territories. Recent numbers state that at least 14 indigenous territories are under attack. The indigenous people speak of a general abandonment of state protection, as this is all happening with apparent impunity.494 There has already been a multitude of indigenous people killed, captured, and tortured who are trying to protect their land.495 218. Only the National Congress has the competence to authorize the exploitation and use of hydric resources and to prospect the mineral resources on indigenous land.496 Only after hearing the involved communities and the insurance that they will participate in the results of such mining.497 President Bolsonaro has stated that he wants to change this right. He believes that the natural resources found in the indigenous reserves can change the economy of Brazil.498 219. The main guiding policy for addressing and respecting safeguards relevant to indigenous peoples is national Decree No 7747, June 5 2012.499 With a coalition of 150 indigenous groups and other organizations, it established the National Policy on Land Management and Environmental Indigenous Lands (PNGATI). This endorses indigenous-led conservation, natural resource management, and environmental restoration.500

5.4.4 Conclusion: Is Brazil violating the law? 220. At the moment, the Brazilian government has only issued statements concerning ideas that will violate both the Constitution and the ILO Convention 169. In a legal system, no one can be 491 Art 231, para 2, Constitution of the Federative Republic of Brazil, 5 October 1988. 492 Art 231, para 4, Constitution of the Federative Republic of Brazil, 5 October 1988. 493 Art 231, para 5, Constitution of the Federative Republic of Brazil, 5 October 1988. 494 Poirier Christian, “Brazil's Indigenous Peoples Suffer Wave of Invasions and Attacks”, Amazon Watch, 20 February 2019. To consult through: https://amazonwatch.org/news/2019/0220-brazils-indigenous-peoples-suffer-wave-of-invasions-and-attacks 495 Poirier Christian, “Brazil's Indigenous Peoples Suffer Wave of Invasions and Attacks”, Amazon Watch, 20 February 2019. 496 Art 49, XVI, Constitution of the Federative Republic of Brazil, 5 October 1988. 497 Art 231, para 3, Constitution of the Federative Republic of Brazil, 5 October 1988. 498 Phillips Dom, “‘We are fighting': Brazil's indigenous groups unite to protect their land”, The Guardian, 4 March 2019. To consult through: https://www.theguardian.com/world/2019/mar/04/we-are-fighting-brazils-indigenous-groups-unite-to-protect-their-land 499 Brazil, “Brazil REDD+ Results Based Payments Use of Proceeds towards Floresta+ Pilot Program and ENREDD+ Implementation: Draft Environmental and Social Management Framework”, Green Climate Fund Funding Proposal for REDD+ RBP Pilot Program, 13 September 2018, p24. 500 Brazil, “Brazil REDD+ Results Based Payments Use of Proceeds towards Floresta+ Pilot Program and ENREDD+ Implementation: Draft Environmental and Social Management Framework”, Green Climate Fund Funding Proposal for REDD+ RBP Pilot Program, 13 September 2018, p24.

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held accountable for something they might do. However, these statements did open the door for individuals and organizations to invade the indigenous territories illegally. This is often done with violence and leads to illegal logging and illegal mining. 221. Brazil can be held accountable for not sufficiently protecting the indigenous peoples and their territories. This is a violation of articles 5, 15, and 18 of the ILO Convention 169 and article 231 of the Constitution. Indigenous peoples, NGO’s and federal prosecutors have already stated that if the government goes forward with their plans, they will take legal action.501 Since it is also a constitutional violation, the most likely legal way is the National court of Brazil. It is even stated in the Constitution that disputes concerning indigenous rights are the competence of the federal judges.502 The Public Prosecutor has to defend judicially the rights and interests of the indigenous peoples.503

6 NATIONAL LAW 6.1 Brazilian Constitution

222. The environment has its own clause within the Brazilian constitution. Article 225 gives everyone the right to an ecologically, balanced environment.504 Both the government of Brazil and its community have the duty to defend and protect it for present and future generations. An ecologically balanced environment is essential for a healthy quality of life. These three rights make up the basis of article 225 of the Constitution. 223. The right to a healthy environment can be found in many Constitutions around the world. About 150 countries have environmental provisions within their Constitution. These provisions can be expressed in a variety of ways.505 88 countries protect the right to a healthy environment constitutionally. 62 countries have constitutional provisions pertaining to a healthy environment. 506 This right is important as it serves multiple purposes. It encourages stronger environmental

501 X, “Brazil: Risk of bloodshed in the Amazon unless government protects Indigenous peoples from illegal land seizures and logging”, Amnesty International, 7 May 2019. 502 Art 109, XI, Constitution of the Federative Republic of Brazil, 5 October 1988. 503 Art 129, V, Constitution of the Federative Republic of Brazil, 5 October 1988. 504 Constitution of the Federative Republic of Brazil, 5 October 1988. 505 Kumar Justice Swatanter, Ugirashebuja Emmanuel, Lord Carnwath of Notting Hill, Tamminen Terry, Boyd David, “Environmental Rule of Law: First global report”, United Nations Environmental Program, January 2019, p156. 506 Kumar Justice Swatanter, Ugirashebuja Emmanuel, Lord Carnwath of Notting Hill, Tamminen Terry, Boyd David, “Environmental Rule of Law: First global report”, United Nations Environmental Program, January 2019, p159. − To consult through: https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental_rule_of_law.pdf?sequence=1&isAllowed=y

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statues, provides procedural protection, encourages filling in the gaps in existing law, and highlights the importance of environmental law.507 224. In dozens of countries, the courts have upheld that the constitutional right to a healthy environment is binding. The courts have ruled that the governments have duties as a result of this right. They cannot act to infringe upon the right; they must protect it from infringement by third parties and take actions to fulfill the rights.508 225. The positive thing about the right to a healthy environment being in the Constitution is that it trumps any national or sub-national laws. It also means that no national law, in the present or future, can be contradictory to this right. The human right to a healthy environment is also recognized in a multitude of international treaties and organizations. 226. In Brazil, this right gave the NGOs and the public access to the independent Ministério Público (Federal Public Ministry). There they could report and ask for action on environmental violations.509 One of the most important innovations in Brazil as a result of the right to a healthy environment is the reversal of the burden of proof. The Brazilian courts now find that the defendants must prove that their actions were not harmful to the environment.510 To go over all the precedents would be impossible work. In the State of Sao Paulo alone, there are more than 4000 public civil actions in environmental cases in the period 1984 to 2004.511 The Ministério Público initiated all of these cases. The Federal prosecutors successfully relied on the right to a healthy environment to delay the construction of the proposed Belo Monte dam on the Xingu River, located in the Amazon.512 227. The right to a healthy environment being solidified within the constitution provided a degree of legal fidelity and sanctioning power that the environmental regulatory agencies lacked. Prosecutions due to environmental laws dispelled the long-standing notion of impunity for environmental harm. While the legal basis is there, Brazil is still behind on the implementation of these laws.513

507 Kumar Justice Swatanter, Ugirashebuja Emmanuel, Lord Carnwath of Notting Hill, Tamminen Terry, Boyd David, “Environmental Rule of Law: First global report”, United Nations Environmental Program, January 2019, p156. 508 Kumar Justice Swatanter, Ugirashebuja Emmanuel, Lord Carnwath of Notting Hill, Tamminen Terry, Boyd David, “Environmental Rule of Law: First global report”, United Nations Environmental Program, January 2019, p157. 509 Ibid, p160. 510 Boyd David, “The Environmental Rights revolution”, UBC Press, 2012, p132. To consult through: https://books.google.be/books?id=iEYzN4bNQ3MC&pg=PA132&lpg=PA132&dq=brazil+court+healthy+environment&source=bl&ots=O5mppyV29C&sig=ACfU3U0kz6JrQaL8Lvcc3FUhMMhkPXxSFw&hl=nl&sa=X&ved=2ahUKEwjeoo6x3OvjAhWQDewKHYmGCrcQ6AEwFHoECAgQAQ#v=onepage&q=brazil%20court%20healthy%20environment&f=false 511 Boyd David, “The Environmental Rights revolution”, UBC Press, 2012, p132-133. 512 Ibid, p132. 513 Ibid, p133.

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228. Article 225 of the Constitution goes on to state the mandatory things the Brazilian government has to do to ensure this right. They need to preserve and restore the essential ecological processes.514 This can be interpreted as needing conservation measures, but also restore the essential areas that have been lost due to a multitude of reasons. The government needs to preserve the diversity and the integrity of the genetic patrimonial. As such, they need to control the entities doing research and wishing to manipulate genetic material.515 229. They need to define, across the country, the territorial spaces, and their components, which need to receive special protection. Only the law may allow suppressions or alterations to these areas. Any harm being done to the reason of why these areas receive special protection is forbidden.516 Around 18% of Brazil’s land consists of protected areas. Of this, 70% can be found in the Amazon rainforest.517 The protected areas of land within the Amazon cover around 43%. These areas are essential for maintaining the biodiversity and storing carbon dioxide.518 230. Environmental impact studies, which are public, are mandatory for the installation of works, and activities, which may potentially cause significant degradation of the environment.519 The first question to be posed is if environmental impact assessments are being done. Many small projects will not undergo the environmental impact assessment. Only big projects need to do one.520 The environmental impact assessments that are being done are questionable. For example, the government did an environmental impact assessment for the highway across the Amazon rainforest. This assessment concluded that there would be no net increase of deforestation as a result of the highway. In comparison, independent scientists say that by 2050, this highway will lead to deforestation of 39 million hectares.521 231. The government is obliged to protect the fauna and flora. This means that all practices that either represents a risk to their ecological function, cause the extinction of species or subject animals to cruelty are prohibited.522 When the Amazon is deforested, no attention is given to the animals living there. The idea is that the Amazon is big enough that the animals will find a new home.

514 Art 225, para 1, I Constitution of the Federative Republic of Brazil, 5 October 1988. 515 Art 225, para. 1, II Constitution of the Federative Republic of Brazil, 5 October 1988. 516 Art 225, para 1, III, Constitution of the Federative Republic of Brazil, 5 October 1988. 517 Vieira Raísa, Pressey Robert, Loyola Rafael, “The residual nature of protected areas in Brazil”, Biological Conservation, May 2019. 518 Walker Robert, “Amazon deforestation, already rising, may spike under Bolsonaro”, The conversation, 28 January 2019. To consult through: https://theconversation.com/amazon-deforestation-already-rising-may-spike-under-bolsonaro-109940 519 Art 225, para 1, IV, Constitution of the Federative Republic of Brazil, 5 October 1988. 520 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 521 Laurance William, Salt David, “Opinion: Environmental impact assessments aren’t protecting the environment”, Ensia, 13 December 2018. To consult through: https://medium.com/ensia/opinion-environmental-impact-assessments-arent-protecting-the-environment-14cd975230a8 522 Art 225, para 1, VII, Constitution of the Federative Republic of Brazil, 5 October 1988.

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232. Article 225 of the Constitution also provides obligations to both citizens and the government in its final paragraphs. When mineral resources are exploited, you are obliged to restore the degraded environment.523 At the moment, there is an increasing presence of illegal miners, who operate and poison the waterways without any consequences.524 Their presence increased after the announcement of the president that the Amazon will be opened up.525 Even indigenous lands are being invaded. The government has the plan to open up indigenous lands to mining, as there is a lot of gold and silver in those areas.526 233. When activities or procedures are considered harmful to the environment, penal and administrative sanctions are given to the infractors. These sanctions will be without prejudice to the obligation to repair the damages caused. These infractors can be either legal entities or individuals.527 The government is sending a clear signal to the people that illegal logging is no longer being punished.528 The environment Minister has moved to inhibit the enforcement agency IBAMA from cracking down on environmental crime. They say that fines for past crimes could be expunged.529 As will be mentioned in the next chapter, the new forest code of 2012 will pardon illegal deforestation that occurred before 2008.530 Since 2017, 56 Brazilian companies have been fined for environmental crimes in the Amazon.531 If these companies actually had to pay their fines, is another question. Even with these fines, the companies are still exporting their goods to the EU, China, and the USA.532 234. The Brazilian Amazon rainforest is part of the national patrimony. It shall be used in a way, which ensures the preservation of the environment. This includes the use of its mineral

523 Art 225, para 2, Constitution of the Federative Republic of Brazil, 5 October 1988. 524 Poirier Christian, “Brazil's Indigenous Peoples Suffer Wave of Invasions and Attacks”, Amazon Watch, 20 February 2019. 525 Mendes Karla, “China, EU, US trading with Brazilian firms fined for Amazon deforestation: report”, Mongabay, 6 May 2019. To consult through: https://news.mongabay.com/2019/05/china-eu-us-trading-with-brazilian-firms-fined-for-amazon-deforestation-report/ 526 Wernick Adam, “Brazil's Bolsonaro wants to mine on Indigenous lands — illegally”, PRI: Living on Earth, 10 April 2019. To consult through: https://www.pri.org/stories/2019-04-10/brazils-bolsonaro-wants-mine-indigenous-lands-illegally 527 Art 225, para 3, Constitution of the Federative Republic of Brazil, 5 October 1988. 528 Wallace Scott, “Brazil's new leader promised to exploit the Amazon—but can he?”, National Geographic – Environment, 31 October 2018. 529 Amazon Watch, “Complicity in Destruction II: How northern consumers and financiers enable Bolsonaro’s assault on the brazilian amazon”, Amazon Watch, April 2019, p9. To consult through: https://amazonwatch.org/assets/files/2019-complicity-in-destruction-2.pdf?utm_source=Guardians+of+the+Forest+Newsletter&utm_campaign=4eff32c81d-EMAIL_CAMPAIGN_2019_04_09_08_13_COPY_01&utm_medium=email&utm_term=0_5b79f00d24-4eff32c81d-294521297 530 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 531 Amazon Watch, “Complicity in Destruction II: How northern consumers and financiers enable Bolsonaro’s assault on the brazilian amazon”, Amazon Watch, April 2019, p5. 532 Mendes Karla, “China, EU, US trading with Brazilian firms fined for Amazon deforestation: report”, Mongabay, 6 May 2019.

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resources.533 Scientists have warned that if 25% of the Amazon rainforest is deforested, it will spark a progress, which will turn the Amazon into a savannah. At this time, already 22% has been felled, and the deforestation is again increasing.534 235. President Bolsonaro’s plans, those already in place or in the future, are a violation of the constitution. As such, Brazil is accountable on a national level. The only legal option is going to the national court. Many prosecutors have already spoken out that they will fight Bolsonaro in court. Also, the Ministério Público has said that they will do everything to stop the plans of the president.535

6.2 The Forest Code 236. In 1965 Brazil introduced its first Forest Code. This was a law that required landowners in the Amazon to maintain 35 to 80 percent of their property in the native vegetation. This means that rural farmers can buy land in the Amazon, but they can only farm 20 percent of this area.536 The Forest Code was revised in 2012 implementing new measures. Most of these reduced the protection granted to the environment. 237. The new Forest Code of 2012, including the changes made by the Supreme Court, can result in major deforestation within the Amazon rainforest. About 15 million hectares stand to lose their protected status as a result of these changes.537 238. There are many problems with enforcing the Forest Code. The first is the size of the Amazon rainforest. It is hard for federal and local governments to implement this legislation when they have few resources. Then there is the problem that there used to exist only records of ownership of 10% of the private land in the Amazon. In 2010 the registration and mapping of rural areas became mandatory. This was done by the system called CAR (Cadastro Ambiental Rural).538 239. According to the Forest Code, Permanent Preservation Area (Área de Preservação Permanente) (APP) are protected areas, which have the environmental function of preserving water resources, the landscape, geological stability, and biodiversity, facilitating the gene flow of fauna and flora, protecting the soil and ensure the well-being of human populations.539

533 Art 225, para 3, Constitution of the Federative Republic of Brazil, 5 October 1988. 534 Wernick Adam, “Brazil's Bolsonaro wants to mine on Indigenous lands — illegally”, PRI: Living on Earth, 10 April 2019. 535 Wernick Adam, “Brazil's Bolsonaro wants to mine on Indigenous lands — illegally”, PRI: Living on Earth, 10 April 2019. 536 X, “Brazilian Amazon: The Forest Code: Using Law to Protect the Amazon”, The Nature Conservancy, 2019. 537 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 538 X, “Brazilian Amazon: The Forest Code: Using Law to Protect the Amazon”, The Nature Conservancy, 2019. 539 Art 3, II, Law No. 12,651 Forest Code, 25 May 2012.

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240. Article 7 of the Forest code states that the owner of an APP shall maintain the vegetation located within it, in any capacity. When the vegetation in this area has been reduced, the owner is obliged to promote the restoration of it except when the law states differently. When the vegetation is reduced unauthorized, new reductions are forbidden until the previous reduction has been restored.540 241. The reduction of vegetation is allowed in cases of public utility, social interest, or when there is a low environmental impact.541 People and animals are allowed access to the APPs when they want to obtain water or to perform activities with a low environmental impact.542 242. Every rural property must maintain an area with native vegetation, called the legal reserve. For the Amazon region, the general rule is that properties situated in the forest area must maintain 80% in legal reserve.543 The government is allowed to reduce the legal reserve to 50% for rural private properties. This is allowed when the state (like a province) has already protected at least 65% of the total territory as conservation units or indigenous reserves.544 This rule can reduce the total amount of protected forest areas nationwide.545 This means that when a state increases its amount of protected areas, once it crosses the threshold of 65% it will decrease the protected land. Passing the threshold will more than double the area of unprotected land on private property. 243. At the moment, around 80 million hectares are undesignated and can as such become protected, which will allow states to reach the threshold of 65%. Researcher Freitas is for making these undesignated areas protected. He believes that when about 97% of this area becomes conservation units or indigenous land, this will result in removing protection from around 5 million hectares of forests held in private properties. He finds this better than risking private owners to buy this undesignated land that could later possibly fall under this new 50% rule when the threshold of 65% is met.546 244. This scenario is highly unlikely; the Bolsonaro government policies and promises show that they are not planning on expanding the conservation units or indigenous lands. This will leave this undesignated land open to illegal logging and violent land grabbing.547 This reduction of the native vegetation and new areas of forest, outside the legal reserve, is only authorized when the property is registered548 in the Rural Environmental Registry (CAR).549

540 Art 7 Law No. 12,651 Forest Code, 25 May 2012. 541 Art 8 Law No. 12,651 Forest Code, 25 May 2012. 542 Art 9 Law No. 12,651 Forest Code, 25 May 2012. 543 Art 12, I, Law No. 12,651 Forest Code, 25 May 2012. 544 Art 12, para 5, Law No. 12,651 Forest Code, 25 May 2012. 545 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 546 Freitas Flavio, Sparovek Gerd, Berndes Göran, Persson Martin, Englund Oskar, Barretto Alberto, Mörtberg Ulla, “Potential increase of legal deforestation in Brazilian Amazon after Forest Act revision”, Nature Sustainability, 13 November 2018. 547 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 548 Art 12, para 3, Law No. 12,651 Forest Code, 25 May 2012. 549 Art 4, para 6, Law No. 12,651 Forest Code, 25 May 2012.

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245. The government is planning on reissuing a decree that will remove the deadline given to farmers to register their properties in the CAR. The first deadline passed in June, but the Congress did not approve in time.550 This registry was designed to detect illegal deforestation. It tells you how much legal reserve someone has and how much has been protected. With satellite images, they will be able to detect if illegal deforestation is happening in the legal reserve.551 246. The economic exploitation of the legal reserve is allowed through sustainable development when it has been approved.552 247. The government has put into place a licensing system. A Forest Origin Document must accompany all the forest products. It will state the material specifications, the volume, and the data on the origin and destination of the product.553 The license system itself is a good idea, but there is a lot of abuse and fraud with this license. There are two major ways in which fraud occurs. Either the company stops at an illegal logging site and adds the illegal wood to the legal wood.554 Alternatively, they create fake trees. This means that according to the registry, they own more trees than in reality. These extra trees, when logged, come from illegal logging.555 248. When illegal deforestation is happening the competent environmental agency will place an embargo on the work or activity. This will make sure that the work or activity is stopped and will prevent further environmental damage.556 249. The 2012 Forest Code extended amnesties to the illegal deforestation that happened before the 22nd of July 2008.557 It forgave the fines558 given and reduced the restoration requirements.559 There are three possible restoration requirements that can be followed or combined. You can allow natural regeneration of vegetation in the legal reserve; you can restore the legal reserve, or compensate for the loss in the legal reserve.560 Most scientists do not respond favorably to the

550 Paraguassú Lisandra, “Brazil's Bolsonaro to extend environmental land registry indefinitely”, Reuters, 6 June 2019. To consult through: https://www.reuters.com/article/us-brazil-environment/brazils-bolsonaro-to-extend-environmental-land-registry-indefinitely-idUSKCN1T72JS 551 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 552 Art 17 Law No. 12,651 Forest Code, 25 May 2012. 553 Art 35-37 Law No. 12,651 Forest Code, 25 May 2012. 554 Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), 2019. 555 Greenpeace European Unit, “Greenpeace investigation: EU imports of Amazon timber tainted by widespread fraud in Brazil”, Greenpeace, 20 March 2018. 556 Art 51 Law No. 12,651 Forest Code, 25 May 2012. 557 “Brazil Forest Code”, WWF, 2019. 558 Art 42 Law No. 12,651 Forest Code, 25 May 2012. 559 Azevedo Andrea, Rajão Raoni, Costa Marcelo, Stabile Marcelo, Macedo Marcia, dos Reis Tiago, Alencar Ane, Soares-Filho Britaldo, Pacheco Rayane, “Limits of Brazil’s Forest Code as a means to end illegal deforestation”, PNAS, 18 July 2017. To consult through: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5530639/ 560 Art 66 Law No. 12,651 Forest Code, 25 May 2012.

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amnesty granted. They fear that there will be a new deforestation pardon, for violations against the 2012 version of the Forest Code.561 250. Many of these changes made to the Forest code were under review by the Federal Supreme Court. There were a total of four Direct Actions of Unconstitutionality (ADIs) introduced.562 The case was introduced in 2013, but the final votes were cast in 2018. In the end, the Supreme Court rejected 18 of the 23 charges of unconstitutionality.563 This brought legal certainty to the implementation of the Forest Code. 251. The Supreme Court, by a majority, recognizes the constitutionality of the new paragraphs under article 12.564 This means that the reduction of the legal reserve to 50% when a State is already protecting 65% of its territory is conservation units or indigenous land.565 252. Article 8, allowed by the Supreme Court, declared a reduction of vegetation in cases of public utility, social interest or when there is a low environmental impact constitutionally.566 Also, article 7 that oblige owners to promote the restoration of their vegetation when that has been reduced.567 568 253. The Supreme Court has endorsed the amnesty granted to landowners who illegally cleared their legal reserve before 22 of July 2008. They find it unnecessary that these landowners pay their fines.569 They also approved the constitutionality of article 66, which reduced the restoration requirements for the legal reserve before 22 of July 2008.570 254. The Supreme Court also made it possible for farmers who illegally cleared APPs to get authorization to clear even more land. Farming activities are now also allowed on steep slopes (over 45 degrees angle) and on hilltops.571 561 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 562 Chiavari Joana, Lopes Cristina, “Amendments to a provisional measure threaten the implementation of Brazil’s new Forest Code”, Climate Policy Initiative, March 2019. To consult through: https://climatepolicyinitiative.org/publication/amendments-of-a-provisional-measure-threaten-the-implementation-of-brazils-new-forest-code/ 563 Branford Sue, “Brazil high court Forest Code ruling largely bad for environment, Amazon: NGOs”, Mongabay, 1 March 2018. To consult through: https://news.mongabay.com/2018/03/brazil-high-court-forest-code-ruling-largely-bad-for-environment-amazon-ngos/ 564 Supreme Court, Direct Unconstitutional Action (ADI) 4901, judgement 28 February 2018. 565 Supreme Court, ADC 42, Judgement 28 January 2018. 566 Supreme Court, Direct Unconstitutional Action (ADI) 4903, judgement 28 February 2018. 567 Supreme Court, Direct Unconstitutional Action (ADI) 4937, judgement 28 February 2018. 568 Supreme Court, ADC 42, Judgement 28 January 2018. 569 Spring Jake, “Brazil court upholds forestry law changes in blow to environmentalists”, Reuters, 28 February 2018. To consult through: https://www.reuters.com/article/brazil-environment/brazil-court-upholds-forestry-law-changes-in-blow-to-environmentalists-idUSL4N1LV5BF 570 Supreme Court, Direct Unconstitutional Action (ADI) 4901, judgement 28 February 2018. 571 Branford Sue, “Brazil high court Forest Code ruling largely bad for environment, Amazon: NGOs”, Mongabay, 1 March 2018.

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255. Many environmentalists and researchers believe that the new Forest Code of 2012 is one of the reasons for the overall uptick in deforestation in Brazil in the last few years.572 The hardest thing is that even though the protection provided by the Forest Code has been reduced, there is still much illegal deforestation. Around 70% of the deforestation in the Amazon occurs illegally.573 Environmentalists find the hardest part that the Supreme Court approved of the amnesty provided to illegal deforestation before the 22nd of July 2008. This rewards those who deforested illegally and punishes those who did not.574 256. The Forest Code is still an important legal document, which protects the Amazon rainforest in Brazil on a national level. Trying to change the Forest Code itself is no longer possible, as you can see from the judgment of the Federal Supreme Court. Only violations to the Forest Code can be brought before the national court. Sadly enough, the current Forest Code is very lax and has reduced deforestation protections. This means that it is hard to deforest the Amazon rainforest illegally. Environmentalists find that the clause, removing the fine for illegal deforestation before 2008, sends the message that illegal deforestation is allowed. However, the government states that while the fine is gone, they need to reforest the area that is gone.575 The government is no longer inspecting and handing out fines for illegal deforestation.576 257. Holding Brazil itself accountable for any Forest Code violations is very unlikely. The only option would be to prosecute individuals who violate the Forest Code. But with the lack of enforcement of the law from the government this also seems unlikely. The question only is what would a court decide if illegal deforestation is brought before it.

572 Branford Sue, “Brazil high court Forest Code ruling largely bad for environment, Amazon: NGOs”, Mongabay, 1 March 2018. 573 Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. 574 Branford Sue, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 575 Branford Sue, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. 576 Georgiou Aristos, “Brazil's Bolsonaro blamed as illegal deforestation pushes amazon rainforest to 'tipping point,' expert warns”, Newsweek, 26 July 2019. To consult through: https://www.newsweek.com/brazil-bolsonaro-illegal-deforestation-amazon-rainforest-tipping-point-1451270

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7 CONCLUSION 258. The Amazon rainforest is very important, and its protection is crucial. While President Bolsonaro wants to exploit the Amazon rainforest, there are several international and national obligations blocking this path. The Amazon rainforest is classified under the sovereignty of Brazil. But sovereignty over natural resources is not unlimited. Multiple international obligations found in the CBD, Paris Agreement, and UNFCCC have limited this sovereignty. As such Brazil falls under State responsibility. 259. Brazil can be held accountable for violating their international obligations under the Paris Agreement, the REDD+ program, and the CBD. Deforestation rates in Brazil have increased, and they are not likely to reach their goals. They are violating multiple articles of the CBD. Brazil has violated the CBDs main objectives, to conserve biodiversity and sustainably use its biodiverse components. Brazil has also either not been doing the EIAs or has created a positive EIA for its projects. As the government is planning to reduce the number of protected areas, they will not reach their committed amount under CBD. Brazil’s new policies are against the goal of the Paris Agreement to limit global temperature rise to 2oC. Since the REDD+ program is linked with the Paris Agreement, the same violations are made. But with REDD+, there are also human rights violations. 260. While it is possible to hold Brazil internationally responsible, it is unlikely that this will happen. Sadly enough, Brazil is not the only country that is violating its international commitments. As such, other countries will not be willing to go to court as they risk being incriminated themselves. So far, we have only seen international court cases for violating these agreements when there is transboundary harm. 261. We can also hold Brazil accountable on a national level. We have seen many national court cases around the world were citizens are suing their own government. In many cases, this has led to a conviction of that government. Also, for the human rights violations, Brazil can be held accountable. 262. At the moment, Brazil is not touching the protected areas that are watched by the entire world, such as the World Heritage sites and the Ramsar sites. However, the indigenous territories do have to worry. The Brazilian government has made it clear that they will start exploiting these regions, without care for the indigenous peoples living there. I find it incredibly courageous that the indigenous peoples are protecting the Amazon rainforest, even with their lives. 263. The Brazilian Constitution guarantees the right to an ecologically balanced environment. This right needs to be protected for present and future generations. The Constitution sets forward a list of duties for the Brazilian government. The government has the duty to preserve and restore the essential ecological processes. There is also an obligation to perform environmental impact assessments. When mineral resources are exploited, the degraded environment needs to be restored. The Amazon rainforest shall be used in a way that ensures the preservation of the environment. Regretfully, the current and future policies of the Brazilian government are almost violating all these commitments. It is possible for the Brazilian citizens to hold its government accountable before a national court.

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264. Sadly enough, the Forest Code has recently been weakened. While people have tried to fight this in court as unconstitutional, it has not worked. While some security measures against deforestation are still in place, they are not very effective. The main problem is that the rules say one thing and the government says another. From the evidence, we have to conclude that most people are following what the government is saying, as there is a sense of impunity. It is doubtful that the individuals violating the Forest Code will be convicted. 265. The worst thing we can do now is thinking that everything is lost. It is true that for the next four years, President Bolsonaro will remain the president. I can only hope that both the national people of Brazil and the international community can come together. Only together can we stop the deforestation and the destruction of the Amazon rainforest. Because while the Amazon rainforest is thousands of kilometers away, your way of life also depends on it. 266. Recently Norway has stopped their donations to the Amazon Fund. I am glad to see that countries realize that supporting Brazil is destroying the Amazon rainforest. Everyone should encourage his or her country not to support Brazil. International pressure from around the world can help Brazil realize they need to change their policy. The national citizens of Brazil are already making a stance. Indigenous peoples, with risk to their lives, are protecting the Amazon rainforest. Many have also stated that they will take legal action to stop the plans of the government. 267. Moreover, you can also do something. Do not buy any beef or soya products coming from the Amazon. Be careful when buying wood originating from the Amazon and check if it was cut down legally. Together we can save the Amazon rainforest.

***

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8 BIBLIOGRAPHY 8.1 Law

8.1.1 International Law

− Charter of the United Nations, San Francisco, 26 June 1945. To consult through: http://www.un.org/en/sections/un-charter/un-charter-full-text/

− Universal Declaration of Human Rights, Paris, 10 December 1948. To consult through: https://www.un.org/en/universal-declaration-human-rights/

− International Covenant on Civil and Political Rights, 16 December 1966. To consult through: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

− International Covenant on Economic, Social and Cultural Rights, 16 December 1966. To consult through: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

− Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. To consult through: https://treaties.un.org/doc/Treaties/1980/01/19800127%2000-52%20AM/Ch_XXIII_01.pdf

− Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2 February 1971. To consult through: https://www.ramsar.org/sites/default/files/documents/library/scan_certified_e.pdf

− Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972. To consult through: https://whc.unesco.org/archive/convention-en.pdf

− Treaty for Amazonian Cooperation, Brazil, 3 July 1978. To consult through: https://www.oas.org/dsd/Events/english/PastEvents/Salvador_Bahia/Documents/Amazonannexes.pdf

− Convention on Biological Diversity, 5 June 1982. To consult through: https://www.cbd.int/doc/legal/cbd-en.pdf

− United Nations Convention on the Law of the Sea, 10 December 1982. To consult through: http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf

− Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), Bonn, 1 November 1983. To consult through: https://www.cms.int/en/convention-text

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− Montreal Protocol on Substances that Deplete the Ozone Layer, 1 January 1989. To consult through: https://ozone.unep.org/sites/default/files/Montreal-Protocol-English_0.pdf

− Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989. To consult through: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312314:NO

− Convention concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 5 September 1991. To consult through: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169

− United Nations Framework Convention on Climate Change, Ch_XXVII_7, New York, 9 May 1992. To consult through: https://treaties.un.org/doc/Treaties/1994/03/19940321%2004-56%20AM/Ch_XXVII_07p.pdf

− United Nations Convention to Combat Desertification, Paris, 17 June 1994. To consult through: https://www.unccd.int/sites/default/files/relevant-links/2017-01/UNCCD_Convention_ENG_0.pdf

− Kyoto Protocol, Kyoto, 11 December 1997. To consult through: https://unfccc.int/resource/docs/convkp/kpeng.pdf

− International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001. To consult through: http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf

− International Tropical Timber Agreement, Geneva, 27 January 2006. To consult through: https://treaties.un.org/doc/Treaties/2006/02/20060215%2004-26%20PM/Ch_XIX_46p.pdf

− United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007. To consult through: https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

− Paris Agreement, Paris, 12 December 2015. To consult through: https://unfccc.int/sites/default/files/english_paris_agreement.pdf

8.1.2 National Law

− Constitution of the Federative Republic of Brazil, 5 October 1988. To consult through: http://english.tse.jus.br/arquivos/federal-constitution

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− Law No. 12,187 Brazilian National Policy on Climate Change, 29 December 2009. To consult through: http://www.braziliannr.com/brazilian-environmental-legislation/law-no-12187-brazilian-national-policy-on-climate-change/

− Law No. 12,651 Forest Code, 25 May 2012. To consult through: http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2012/Lei/L12651.htm

8.2 COP Decisions − CBD COP Decision IX/5, forest biodiversity, UN doc. UNEP/CBD/COP/DEC/IX/5, 9

October 2008, 2 (a). To consult through: https://www.cbd.int/decision/cop/?id=11648

− CBD COP Decision X/33, Biodiversity and Climate Change, UN doc. UNEP/CBD/COP/DEC/X/33, 29 October 2010, para 8. To consult through: https://www.cbd.int/decision/cop/?id=12299

− UNFCCC COP 11, Item 6 of the provisional agenda, 15 November 2005. To consult through: https://unfccc.int/resource/docs/2005/cop11/eng/misc01.pdf

− UNFCCC COP Decision 2/CP.13, Reducing emissions from deforestation in developing countries: approaches to stimulate action, 3 December 2007. To consult through: https://unfccc.int/sites/default/files/resource/docs/2007/cop13/eng/06a01.pdf

− UNFCCC COP Decision 2/CP15, Copenhagen Accord, 18 December 2009. To consult through: https://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf

− UNFCCC COP Decision 1/CP.16, Cancun Agreements, 15 March 2011. To consult through: https://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf

− UNFCCC COP Decision 12/CP.17, Guidance on systems for providing information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16, 15 March 2012. To consult through: https://unfccc.int/sites/default/files/resource/docs/2011/cop17/eng/09a02.pdf

− UNFCCC COP Decision 9/CP.19, Work programme on results-based finance to progress the full implementation of the activities referred to in decision 1/CP.16, paragraph 70, 22 November 2013. To consult through: https://unfccc.int/resource/docs/2013/cop19/eng/10a01.pdf

− UNFCCC COP Decisions 11/CP.19, “Modalities for national forest monitoring systems”,

22 November 2013. To consult through: https://unfccc.int/resource/docs/2013/cop19/eng/10a01.pdf#page=28

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− UNFCCC COP Decision 12/CP.19, “The timing and the frequency of presentations of the summary of information on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected”, 22 November 2013. To consult through: https://unfccc.int/resource/docs/2013/cop19/eng/10a01.pdf#page=28

− UNFCCC COP Decision 13/CP.19, Guidelines and procedures for the technical assessment of submissions from Parties on proposed forest reference emission levels and/or forest reference levels”, 22 November 2013. To consult through: https://unfccc.int/resource/docs/2013/cop19/eng/10a01.pdf#page=28

− UNFCCC COP Decision17/CP.21, Further guidance on ensuring transparency, consistency, comprehensiveness and effectiveness when informing on how all the safeguards referred to in decision 1/CP.16, appendix I, are being addressed and respected, 10 December 2015. To consult through: https://unfccc.int/resource/docs/2015/cop21/eng/10a03.pdf#page=13

− Ramsar COP Resolution 5.4, The Record of Ramsar sites where changes in ecological character have occurred, are occurring, or are likely to occur (Montreux Record), June 1993. To consult through: https://www.ramsar.org/sites/default/files/documents/pdf/res/key_res_5.4e.pdf

8.3 Official Documents

8.3.1 UN Resolutions

− UN General Assembly resolution 1515 (XV), 15 December 1960.

− UN General Assembly resolution 1803 (XVII), 14 December 1962.

− UN General Assembly resolution 2158 (XXI), 25 November 1966.

− UN General Assembly resolution 2692 (XXV), 11 December 1970.

− UN General Assembly resolution 3281 (XXIX), 12 December 1974, Charter of Economic Rights and Duties of States. To consult through: http://www.un-documents.net/a29r3281.htm

− UN General Assembly resolution 37/7, 28 October 1982, World Charter of Nature. To consult through: http://www.un.org/documents/ga/res/37/a37r007.htm

− HRC, Resolution 10/4. Human rights and climate change, 25 March 2009. To consult through: https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf

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8.3.2 Guidelines

− Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO, 12 July 2017. To consult through: file:///Users/delphinebeun/Downloads/document-57-11.pdf

8.3.3 UN Reports

− Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, General Assembly, UN Doc. A/HCR/10/61, 15 January 2009, para 70. To consult through: https://undocs.org/A/HRC/10/61

− Kumar Justice Swatanter, Ugirashebuja Emmanuel, Lord Carnwath of Notting Hill,

Tamminen Terry, Boyd David, “Environmental Rule of Law: First global report”, United Nations Environmental Program, January 2019. To consult through: https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental_rule_of_law.pdf?sequence=1&isAllowed=y

8.3.4 Principles

− OECD: Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, OECD/Legal/0102, 26 May 1972. To consult through: https://legalinstruments.oecd.org/en/instruments/4

− Declaration of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972. (Stockholm Declaration). To consult through: http://www.un-documents.net/unchedec.htm

− The Rio Declaration on environment and development, Rio de Janeiro, 3-14 June 1992. To consult through: http://www.unesco.org/education/pdf/RIO_E.PDF

− The Earth Charter, The Hague Peace Palace, 29 June 2000. To consult through: http://www.unesco.org/education/tlsf/mods/theme_a/img/02_earthcharter.pdf

− IMAFLORA (ed.), “REDD+ Social and Environmental Principles and Criteria: For development and implementation of programs and projects in the Brazilian Amazon”, July 2010.

8.3.5 Documents submitted by Brazil

− Brazil, “Brazil REDD+ Results Based Payments Use of Proceeds towards Floresta+ Pilot Program and ENREDD+ Implementation: Draft Environmental and Social Management

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Framework”, Green Climate Fund Funding Proposal for REDD+ RBP Pilot Program, 13 September 2018, 173p.

− Federative Republic of Brazil, “Additional information on the iNDC for clarification purposes only”. To consult through: https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20FINAL.pdf

− Federative Republic of Brazil, “Intended Nationally Determined Contribution” To consult through: https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20FINAL.pdf

− United Nations Framework Convention on Climate Change, “Emission summary for Brazil”. To consult through: http://di.unfccc.int/ghg_profiles/nonAnnexOne/BRA/BRA_ghg_profile.pdf

8.4 Case Law

8.4.1 International Cases

− ICJ, Case United Kingdom v. Iceland (Fisheries Jurisdiction), judgement 2 February 1973. To consult through: https://www.icj-cij.org/en/case/55

− ICJ, Case Cambodia v. Thailand (Temple of Preah Vihear), judgement 11 November 2013. To consult through: https://www.icj-cij.org/files/case-related/151/151-20131111-JUD-01-00-EN.pdf

− ICJ, Case Nicaragua v. Costa Rica (construction of a road along San Juan River), judgment 16 December 2015. To consult through: https://www.icj-cij.org/files/case-related/152/152-20151216-JUD-01-00-EN.pdf

− Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, Reports 226. To consult through: https://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf

− Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, 1950, I.C.J. Reports, p 228.

− Hague District Court, Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396, 24 June 2015.

− Trail Smelter case, United States v. Canada, Reports of international arbitral awards, 16 April 1938 and 11 March 1941, Vol. III p 1905-1982. To consult through: http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf

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− Inter-American Court of Human rights, Saramaka case, the Saramaka people v. Suriname, 28 November 2007. To consult through: http://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf

− ICC, Case The Prosecutor v. Ahmad Al Faqi Al Mahdi, judgement, 27 September 2016. To consult through: https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF

− Arbitral Tribunal, France v. Spain (Lake Lanoux), 16 November 1957. To consult through: https://www.informea.org/sites/default/files/court-decisions/COU-143747E.pdf

8.4.2 National court cases

− Supreme Court, Direct Unconstitutional Action (ADI) 4901, judgement 28 February 2018. To consult through: http://www.stf.jus.br/portal/peticaoInicial/verPeticaoInicial.asp?base=ADIN&s1=4901&processo=4901




− Supreme Court, ADC 42, Judgement 28 January 2018. To consult through: http://www.stf.jus.br/portal/peticaoInicial/verPeticaoInicial.asp?base=ADCN&s1=42&processo=42

8.5 Jurisprudence − Andrade João, May Peter, “The Potential of REDD and legal reserve compensation in

Matto Grosso, Brazil” in Healy Hali, Martíez-Alier Joan, Temper Leah, Walter Mariana and Gerber Julien-François (eds.), Ecological Economics from the ground up, 2013, Routledge, 403-429.

− Azevedo Andrea, Rajão Raoni, Costa Marcelo, Stabile Marcelo, Macedo Marcia, dos Reis Tiago, Alencar Ane, Soares-Filho Britaldo, Pacheco Rayane, “Limits of Brazil’s Forest

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Code as a means to end illegal deforestation”, PNAS, 18 July 2017. To consult through: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5530639/

− Barrera-Hernández Lila, “Sovereignty over Natural Resources under Examination: The Inter-American System for Human Rights and Natural Resource Allocation”, Annual Survey of international and comparitive law, Vol. 12, 2006. To consult through: https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1101&context=annlsurvey

− Boekhout van Solinge Tim, “Deforestation Crimes and Conflicts in the Amazon”, American society of Criminology, 17 September 2010, p15.

− Boyd David, “The Environmental Rights revolution”, UBC Press, 2012. To consult through: https://books.google.be/books?id=iEYzN4bNQ3MC&pg=PA132&lpg=PA132&dq=brazil+court+healthy+environment&source=bl&ots=O5mppyV29C&sig=ACfU3U0kz6JrQaL8Lvcc3FUhMMhkPXxSFw&hl=nl&sa=X&ved=2ahUKEwjeoo6x3OvjAhWQDewKHYmGCrcQ6AEwFHoECAgQAQ#v=onepage&q=brazil%20court%20healthy%20environment&f=false

− Boyle Alan, “Human Rights and the Environment: Where Next?”, EJIL, 2012.

− Brilman Marina, “Environmental rights and the legal personality of the Amazon Region”, EJIL:Talk!, 24 April 2018. To consult through: https://www.ejiltalk.org/environmental-rights-and-the-legal-personality-of-the-amazon-region/

− Cameron James and Abouchar Juli, “The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment” Boston college International and Comperative Law Review, Vol. 14, 1991. To consult through: https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1335&context=iclr

− Crawford James, “The International Law Commission’s Articles on State responsibility”, Cambridge University Press, 2002, 387p.

− Crawford James, “State Responsibility”, Oxford Public International Law, September 2006. To consult through: https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1093

− Crippa Leonardo A., “REDD+: its potential to melt the glacial resistance to recognize human rights and indigenous peoples’ rights at the world bank” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, 616p.

− Elian G., “The Principle of Sovereignty over Natural Resources”, Springer Netherlands, 1979.

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− Hutchison Cameron, “The Duty to Negotiate International Environmental Disputes in Good Faith”, McGill International Journal of Sustainable Development Law and Policy, December 2006. To consult through: https://www.mcgill.ca/mjsdl/files/mjsdl/2-2_the_duty_to_negotiate_international_environmental_disputes_in_good_faith.pdf

− Khalatbari Y, Bavand D., Zare A, Poorhashemi S.A., “Development of the concept of “Environmental Damage” in International environmental law”, CJES, October 2016. To consult through: https://cjes.guilan.ac.ir/article_2076.html

− Koivurova Tim, “Due Diligence”, Oxford Public International Law, February 2010. To consult through: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1034

− Kolb Robert, “The international law of state responsibility: Introduction”, MA: Edward Elgar Pub., 2017, 233p.

− Long Andrew, “REDD+ and indigenous peoples in Brazil” in Abate Randall S. and Warner Elizabeth A. Kronk (eds.), Climate Change and Indigenous people, 2013, Edward Elgar, 616p.

− McGee Henry and Zimmerman Kurt, “The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation”, Seattle University School of Law Digital Commons, 1990. To consult through: https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1534&context=faculty

− Ritter Camila D., McCrate Gabriel, Nilsson R. Hendrik, Fearnside Philip M., Palme Ulrika and Antonelli Alexandre, “Environmental impact assessment in Brazilian Amazonia: Challenges and prospects to assess biodiversity”, Science direct: Biological conversation, 8 January 2017, p161-167. To consult through: https://www.sciencedirect.com/science/article/pii/S0006320716311223

− Savaresi Annalisa, “The Role of REDD in the harmonization of overlapping international obligations” in Hollo Erkki J., Kulovesi Kati and Mehling Michael (eds.), Climate Change and Law, 2013, Springer, 678p.

− Schrijver Nico, “Sovereignty Over Natural Resources: Balancing Rights and Duties”, Cambridge University Press, 1997.

− Shaw Malcom Nathan, International law, 8th edition, Cambridge University Press, 2017, 1033p.

− Silverman Allison, “Know your rights related to REDD+”, Center for International Environmental Law, May 2014. To consult through: https://redd.unfccc.int/uploads/2_79_redd_guide_may2014.pdf

− Simpson Brett, “International Involvement in Preservation of the Brazilian Amazon Rainforest: Context, Constraints and Scope”, Asia Pacific Journal of Environmental Law,

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vol. 13, ISS I, 2010. To consult through: https://www.illegal-logging.info/sites/files/chlogging/uploads/1_BrazilianAmazon.pdf

− Snape III William J., “Joining The Convention On Biological Diversity: A Legal and Scientific Overview of Why the United States Must Wake Up”, Sustainable Development Law and Policy, Vol. 10, Issue 3, 2010. To consult through: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1043&context=sdlp

− Soto Max Valverde, “General principles of international Environmental law”, ILSA Journal of Int’l & Comparative law, 1996. To consult through: https://core.ac.uk/download/pdf/51089370.pdf

− Vieira Raísa, Pressey Robert, Loyola Rafael, “The residual nature of protected areas in Brazil”, Biological Conservation, May 2019.

− Voigt Christina, “On the Paris Agreement’s Imminent Entry into Force (Part II of II)”, EJIL: Talk!, 12 October 2016. To consult through: https://www.ejiltalk.org/on-the-paris-agreements-imminent-entering-into-force-what-are-the-consequences-of-the-paris-agreements-entering-into-force-part-ii/

− X, “Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, Yearbook of the International law Commission, vol. II, Part Two, 2001, p30 – 143. To consult through: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

− X, “Failure on a subject’s part to comply with the standard—often termed negligence—describes the blameworthiness of the subject as one element of ascribing legal responsibility to it.”, Oxford Public International Law, February 2010.

8.6 Other scientific sources

8.6.1 Other media sources (documentaries, interviews, TED talk)

− I bought a rainforest (Peru 2014), Documentary

− TED talk: Tasso Azevedo. To consult through: https://www.ted.com/talks/tasso_azevedo_hopeful_lessons_from_the_battle_to_save_rainforests?language=nl

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− Interview with Paulo Moutinho: Ph. D in Ecology, co-founder of IPAM (Amazon Environmental Research Institute), contributed to developing the mechanism REDD, participated in the establishment of the Amazon Fund and the National Policy on Climate Change. More information: http://ipam.org.br/post_diretoria/paulo-moutinho-2/

− The Climate Group, “Understanding the UNFCCC Negotiations”, 2012. To consult through: https://www.theclimategroup.org/sites/default/files/archive/files/UNFCCC_timeline.pdf

8.6.2 Official websites UN and treaties

− Brazil, “National Report on the implementation of the Ramsar convention on wetlands”, Ramsar COP13, 1 March 2018. To consult through: https://www.ramsar.org/sites/default/files/documents/importftp/COP13NR_Brazil_e.pdf

− Ministry of Environment, secretariat of Biodiversity, “National Biodiversity Strategy and Action Plan”, Secretariat of Biodiversity, 264p. To consult through: https://www.cbd.int/doc/world/br/br-nbsap-v3-en.pdf

− Pisupati Balakrishna, Obrecht Andreas and Mobegi Tomkeen, “Law and National Biodiversity Strategies and Action Plans”, the Law Division for the United Nations Environment Programme, 2018, 73p. To consult through: https://wedocs.unep.org/bitstream/handle/20.500.11822/25655/LawBiodiversity_Strategies.pdf?sequence=1&isAllowed=y

− Ramsar Secretariat, “Introducing the Convention on Wetlands”, Ramsar, 2014. To consult through: https://www.ramsar.org/sites/default/files/documents/library/introducing_ramsar_web_eng.pdf

− Sakiyama Melina and Schwarer Christian, “CBD in a nutshell”, Global Youth Biodiversity Network, 2016, 200p. To consult through: https://www.cbd.int/youth/doc/cbd_in_a_nutshell.pdf

− X, “About the Ramsar convention”, ramsar, 2019. To consult through: https://www.ramsar.org/about-the-ramsar-convention

− X, “Brazil designates some of the world´s largest wetlands, from the Amazon basin to the island reefs”, Ramsar, 13 June 2018. To consult through: https://www.ramsar.org/news/brazil-designates-some-of-the-worlds-largest-wetlands-from-the-amazon-basin-to-the-island-reefs

− X, “Brazil”, Earth Charter Initiative. To consult through: http://earthcharter.org/countries/brazil/

− X, “Brazil”, Ramsar, 2019. To consult through: https://www.ramsar.org/wetland/brazil − X, “Central Amazon Conservation Complex”, UNESCO, 2019. To consult through:

https://whc.unesco.org/en/list/998

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− X, “Change in ecological character”, Ramsar, 2019. To consult through: https://www.ramsar.org/sites-countries/change-in-ecological-character

− X, “Conference of the Parties (COP)”, UNFCCC. To consult through: https://unfccc.int/process/bodies/supreme-bodies/conference-of-the-parties-cop

− X, “Contracting Parties to the Ramsar Convention”, Ramsar, 14 June 2019. To consult through: https://www.ramsar.org/sites/default/files/documents/library/annotated_contracting_parties_list_e.pdf

− X, “Country Profiles”, Ramsar, August 2019. To consult through: https://www.ramsar.org/country-profiles

− X, “Interactive Map: Brazil”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/interactive-map/?search=&id_states=br

− X, “International Law Commission”, United Nations, 2019. To consult through: http://legal.un.org/ilc/

− X, “Introduction”, Convention on Biological Diversity: Safeguarding life on Earth. To consult through: https://www.cbd.int/intro/

− X, “Latest NBSAP submitted”, National Biodiversity Strategies and Action Plans (NBSAPs). To consult through: https://www.cbd.int/nbsap/about/latest/default.shtml#br

− X, “List of Parties”, Convention on Biological Diversity: Safeguarding life on Earth. To consult through: https://www.cbd.int/information/parties.shtml

− X, “Ramsar sites: Brazil”, Ramsar sites information service, 2019. To consult through: https://rsis.ramsar.org/ris-search/brazil?solrsort=designationdate_dt%20desc&language=en&pagetab=1&f%5B0%5D=regionCountry_en_ss%3ALatin%20America%20and%20the%20Caribbean&f%5B1%5D=regionCountry_en_ss%3ABrazil

− X, “REDD+ results-based payments for results achieved by Brazil in the Amazon biome in 2014 and 2015”, Green Climate Fund, 11 March 2019. To consult through: https://www.greenclimate.fund/projects/fp100

− X, “Rio Negro”, Ramsar sites information service, 2019. To consult through: https://rsis.ramsar.org/ris/2335

− X, “Summary of the Kyoto Protocol”, United Nations Framework Convention on Climate Change, 2019. To consult through: https://unfccc.int/resource/bigpicture/

− X, “The World Heritage convention”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/convention/

− X, “Understanding the UN Climate change regime”, United Nations Framework Convention on Climate Change, 2019. To consult through: https://unfccc.int/resource/bigpicture/

− X, “UNFCCC Negotiations”, UNFCCC REDD+ Web Platform, to consult through: https://redd.unfccc.int/fact-sheets/unfccc-negotiations.html

− X, “World Heritage List”, UNESCO, 2019. To consult through: https://whc.unesco.org/en/list/

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8.6.3 Official website government Brazil − Chico Mendes Institute of Biodiversity conservation, “Conservation Units: categories”,

Ministry of Environment, 2019. To consult through: http://www.icmbio.gov.br/portal/unidadesdeconservacao/categorias

− REDD+ Brazil, “REDD+ and Brazil’s Nationally Determined Contribution”, Ministério Do Meio Ambiente, 16 October 2018.

− X, “Donations”, Amazon Fund. To consult through: http://www.fundoamazonia.gov.br/en/donations/

− X, “Panel of Conservation Unites in Brazil”, Ministry of Environment, 2019. To consult through: https://app.powerbi.com/view?r=eyJrIjoiMDNmZTA5Y2ItNmFkMy00Njk2LWI4YjYtZDJlNzFkOGM5NWQ4IiwidCI6IjJiMjY2ZmE5LTNmOTMtNGJiMS05ODMwLTYzNDY3NTJmMDNlNCIsImMiOjF9

− X, “REDD+ and Brazil’s Nationally Determined Contribution”, REDD+ Brasil: Ministério do meio ambiente, 16 October 2018. To consult through: http://redd.mma.gov.br/en/redd-and-brazil-s-ndc

− X, “The Amazon Fund”, REDD+ Brasil: Ministério do meio ambiente, 16 October 2018. To consult through: http://redd.mma.gov.br/en/finance/the-amazon-fund

8.6.4 Important NGO websites

− Greenpeace European Unit, “Greenpeace investigation: EU imports of Amazon timber tainted by widespread fraud in Brazil”, Greenpeace, 20 March 2018. To consult through: https://www.greenpeace.org/eu-unit/issues/nature-food/1170/greenpeace-investigation-eu-imports-of-amazon-timber-tainted-by-widespread-fraud-in-brazil/

− Konstantin Ivanov, “Final court decision stops attempt to open up Pirin World Heritage site for construction”, WWF, 17 January 2019. To consult through: http://www.wwf.eu/campaigns/living_land/?uNewsID=341532

− Raygorodetsky Gleb, “Indigenous peoples defend Earth's biodiversity—but they're in danger”, National Geographic, 16 November 2018. To consult through: https://www.nationalgeographic.com/environment/2018/11/can-indigenous-land-stewardship-protect-biodiversity-/

− Sims Shannon, “Brazil slashes funding to scientists. The planet may suffer.”, National Geographic – Environment, 19 April 2019. To consult through: https://www.nationalgeographic.com/environment/2019/04/brazil-cuts-funding-scientists-grad-students-environment-suffers/

− Wallace Scott, “Brazil's new leader promised to exploit the Amazon—but can he?”, National Geographic – Environment, 31 October 2018. To consult through: https://www.nationalgeographic.com/environment/2018/10/brazil-president-jair-bolsonaro-promises-exploit-amazon-rain-forest/

− Welch Craig, “How Amazon forest loss may affect water – and climate- far away”, National Geographic, 19 November 2018. To consult through: https://www.nationalgeographic.com/environment/2018/11/how-cutting-the-amazon-forest-could-affect-weather/

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− X, “About the Amazon”, WWF. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/about_the_amazon/

− X, “Amazonia”, Conservation international. To consult through: https://www.conservation.org/where/Pages/amazonia.aspx

− X, “Brazil Forest Code”, WWF, 2019. To consult through: http://wwf.panda.org/wwf_news/brazil_forest_code_law.cfm

− X, “Brazil: Risk of bloodshed in the Amazon unless government protects Indigenous peoples from illegal land seizures and logging”, Amnesty International, 7 May 2019. To consult through: https://www.amnesty.org/en/latest/news/2019/05/brazil-risk-of-bloodshed-in-the-amazon-unless-government-protects-indigenous-peoples-from-illegal-land-seizures-and-logging/

− X, “Brazilian Amazon: The Forest Code: Using Law to Protect the Amazon”, The Nature Conservancy, 2019. To consult through: https://www.nature.org/en-us/about-us/where-we-work/latin-america/brazil/stories-in-brazil/brazils-forest-code/

− X, “The Amazon”, WWF. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/

− X, “We need to safeguard our forests”, WWF. To consult through: https://wwf.panda.org/our_work/forests/importance_forests/

− X, “Why is the Amazon rainforest important?”, WWF. To consult through: http://wwf.panda.org/knowledge_hub/where_we_work/amazon/about_the_amazon/why_amazon_important/

8.6.5 News articles

− Adghirni Samy, “Brazil Tells the World: The Amazon Rainforest Is Ours, Not Yours”, Bloomberg, 10 May 2019. To consult through: https://www.bloomberg.com/news/articles/2019-05-10/amazon-rainforest-is-ours-and-not-yours-brazil-tells-the-world

− Associated Press, “Norway court clears ways for controversial Arctic drilling”, CBC, 4 January 2018. To consult through: https://www.cbc.ca/news/canada/north/norway-court-arctic-drilling-1.4472884

− Branford Sue, Torres Maurício, “Brazil's Bolsonaro government wants to circumvent the constitution to allow mining on indigenous lands”, Pacific Standard, 15 March 2019. To consult through: https://psmag.com/environment/bolsonaro-government-wants-to-open-indigenous-land-to-mining

− Editorial Board, “Without the Amazon, the planet is doomed”, Washington Post, 5 August 2019. To consult through: https://www.washingtonpost.com/opinions/global-opinions/bolsonaros-wish-to-chop-away-at-the-amazon-is-everyones-problem/2019/08/05/edab2204-b243-11e9-8f6c-7828e68cb15f_story.html?noredirect=on

− Georgiou Aristos, “Brazil's Bolsonaro blamed as illegal deforestation pushes amazon rainforest to 'tipping point,' expert warns”, Newsweek, 26 July 2019. To consult through: https://www.newsweek.com/brazil-bolsonaro-illegal-deforestation-amazon-rainforest-tipping-point-1451270

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− Laurance William and Salt David, “Environmental impact assessments aren't protecting the environment”, Cosmos Magazine. To consult through: https://cosmosmagazine.com/climate/environmental-impact-assessments-aren-t-protecting-the-environment

− Moraes Ricardo and Spring Jake, “Brazil's Amazon rainforest under siege by illegal mines”, Reuters, 11 December 2018. To consult through: https://www.reuters.com/article/us-brazil-environment-mining-widerimage/brazils-amazon-rainforest-under-siege-by-illegal-mines-idUSKBN1OA2KM

− Paraguassú Lisandra, “Brazil's Bolsonaro to extend environmental land registry indefinitely”, Reuters, 6 June 2019. To consult through: https://www.reuters.com/article/us-brazil-environment/brazils-bolsonaro-to-extend-environmental-land-registry-indefinitely-idUSKCN1T72JS

− Phillips Dom, “‘We are fighting': Brazil's indigenous groups unite to protect their land”, The Guardian, 4 March 2019. To consult through: https://www.theguardian.com/world/2019/mar/04/we-are-fighting-brazils-indigenous-groups-unite-to-protect-their-land

− Phillips Dom, “Brazil records worst annual deforestation for a decade”, The Guardian, 24 November 2018. To consult through: https://www.theguardian.com/environment/2018/nov/24/brazil-records-worst-annual-deforestation-for-a-decade

− Roberts Timmons, Arellano Angelica, “Is the Paris climate deal legally binding or not?”,” Climate Home News, 2 November 2017. To consult through: https://www.climatechangenews.com/2017/11/02/paris-climate-deal-legally-binding-not/

− Spring Jake, “Brazil court upholds forestry law changes in blow to environmentalists”, Reuters, 28 February 2018. To consult through: https://www.reuters.com/article/brazil-environment/brazil-court-upholds-forestry-law-changes-in-blow-to-environmentalists-idUSL4N1LV5BF

− Spring Jake, “Brazil seeks to privatize key stretches of Amazon highways”, Reuters, 22 January 2019. To consult through: https://www.reuters.com/article/us-brazil-infrastructure/brazil-seeks-to-privatize-key-stretches-of-amazon-highways-idUSKCN1PG2JS

− Turkewitz Julie, Trump Slashes Size of Bears Ears and Grand Staircase Monuments, NYT, 4 December 2017. To consult through: https://www.nytimes.com/2017/12/04/us/trump-bears-ears.html

− Vidal John, “How a 'typo' nearly derailed the Paris climate deal”, The Guardian, 16 December 2015. To consult through: https://www.theguardian.com/environment/blog/2015/dec/16/how-a-typo-nearly-derailed-the-paris-climate-deal

− Walker Robert, “Amazon deforestation, already rising, may spike under Bolsonaro”, The conversation, 28 January 2019. To consult through: https://theconversation.com/amazon-deforestation-already-rising-may-spike-under-bolsonaro-109940

− Watson Fiona, “In just 100 days, Jair Bolsonaro has destroyed the lives of Brazil's indigenous people”, Independent, 10 April 2019. To consult through: https://www.independent.co.uk/voices/jair-bolsonaro-brazil-indigenous-people-president-100-days-a8863161.html

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− Wernick Adam, “Brazil's Bolsonaro wants to mine on Indigenous lands — illegally”, PRI: Living on Earth, 10 April 2019. To consult through: https://www.pri.org/stories/2019-04-10/brazils-bolsonaro-wants-mine-indigenous-lands-illegally

− Ying Xiu, “Brazil could Open Vast Reserve in the Amazon Rainforest to Mining”, The Rio Times, 13 April 2019. To consult through: https://riotimesonline.com/brazil-news/rio-politics/brazil-could-open-vast-reserve-in-the-amazon-rainforest-to-mining/

8.6.6 Reports

− Freitas Flavio, Sparovek Gerd, Berndes Göran, Persson Martin, Englund Oskar, Barretto Alberto, Mörtberg Ulla, “Potential increase of legal deforestation in Brazilian Amazon after Forest Act revision”, Nature Sustainability, 13 November 2018. To consult through: https://www.nature.com/articles/s41893-018-0171-4.epdf?referrer_access_token=yIueHoe9iFDzZfP3JMulZNRgN0jAjWel9jnR3ZoTv0PE--1-6I_ySVYp7Poh9PmuqEnoeuuRT0C9zDsOArsa-8v3tgZBUQeYOpm0rj5RHg8HI8O0Y-56Lih7ZTicHGVzMs1C6RglWe3yqO0WmckfXQ454GRDLn2zUAyuQBdXUXxh-Sz_lONHcmEs1T2VmkHuNn_JF1o2fdgtPtZFaRVkKfj2C2qP0rqmoTt-LSUKYqutFzQRcoYxqz-Ia2bS-A8jzTSEimoLwu_vVQEnoMCw6hYS1K2sXD2rK2g4U9igUxy8AXitjE2tXKS9jESIlTsh&tracking_referrer=news.mongabay.com

− Taibi Fatima-Zahra and Konrad Susanne, “Pocket Guide to NDCs under the UNFCCC”, DTU Library, 2018, p1-82. To consult through: http://orbit.dtu.dk/files/149534221/NDCs_layout_web_colour.pdf.

− X, “Amazon Fund”, Norwegian Government, 28 February 2013. To consult through: https://www.regjeringen.no/contentassets/2ecbe3693ac04a85bf4d8ddb5d78d858/20130303_amazon_fund_project_document_mma.pdf

− X, “Who takes the credit?: REDD+ in a post-2020 UN climate agreement”, Fern, June 2015. To consult through: https://www.fern.org/fileadmin/uploads/fern/Documents/Who%20takes%20the%20credit%3F.pdf

8.6.7 Other websites

− Amazon Watch, “Complicity in Destruction II: How northern consumers and financiers enable bolsonaro’s assault on the brazilian amazon”, Amazon Watch, April 2019. To consult through: https://amazonwatch.org/assets/files/2019-complicity-in-destruction-2.pdf?utm_source=Guardians+of+the+Forest+Newsletter&utm_campaign=4eff32c81d-EMAIL_CAMPAIGN_2019_04_09_08_13_COPY_01&utm_medium=email&utm_term=0_5b79f00d24-4eff32c81d-294521297

− Asher Claire, “Brazil’s actual forest-related CO2 emissions could blow up the Paris pledge”, Mongabay: Amazon Agribusiness, 19 April 2018. To consult through:

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https://news.mongabay.com/2018/04/brazils-actual-forest-related-co2-emissions-could-blow-by-paris-pledge/

− Asher Claire, “Brazil’s New Forest Code puts vast areas of protected Amazon forest at risk”, Mongabay, 4 March 2019. To consult through: https://news.mongabay.com/2019/03/brazils-new-forest-code-puts-vast-areas-of-protected-amazon-forest-at-risk/

− Asher Claire, “Deforestation-linked Brazilian beef still flowing into international markets: report”, Mongabay: Amazon Agribusiness, 6 November 2018. To consult through: https://news.mongabay.com/2018/11/deforestation-linked-brazilian-beef-still-flowing-into-international-markets-report/

− Bradford Sue and Torres Maurício, “Analysis: the Brazilian Supreme Court’s New Forest Code ruling”, Mongabay: Amazon Agribusiness, 7 March 2018. To consult through: https://news.mongabay.com/2018/03/analysis-the-brazilian-supreme-courts-new-forest-code-ruling/

− Branford Sue, “Amazon at risk: Brazil plans rapid road and rail infrastructure expansion”, Mongabay: Amazon infrastructure, 12 February 2019. To consult through: https://news.mongabay.com/2019/02/amazon-at-risk-brazil-plans-rapid-road-and-rail-infrastructure-expansion/

− Branford Sue, “Brazil high court Forest Code ruling largely bad for environment, Amazon: NGOs”, Mongabay, 1 March 2018. To consult through: https://news.mongabay.com/2018/03/brazil-high-court-forest-code-ruling-largely-bad-for-environment-amazon-ngos/

− Butler Rhett A, “Deforestation in the Amazon”, Mongabay, July 2014. To consult through: https://data.mongabay.com/brazil.html

− Butler Rhett A, “The Amazon Rainforest: The World’s Largest Rainforest”, Mongabay, January 2017. To consult through: https://rainforests.mongabay.com/amazon/

− Butler Rhett A., “The importance of the Amazon rainforest”, Mongabay, 1 April 2019. To consult through: https://rainforests.mongabay.com/amazon/amazon_importance.htm

− Cannon John C., “Brazil hits emission target early, but rising deforestation risk reversal”, Mongabay: Gobal Forests, 23 August 2018. To consult trough: https://news.mongabay.com/2018/08/brazil-hits-emissions-target-early-but-rising-deforestation-risks-reversal/

− Chiavari Joana, Lopes Cristina, “Amendments to a provisional measure threaten the implementation of Brazil’s new Forest Code”, Climate Policy Initiative, March 2019. To consult through: https://climatepolicyinitiative.org/publication/amendments-of-a-provisional-measure-threaten-the-implementation-of-brazils-new-forest-code/

− Clarke Mark, Hussain Tallat, Langen Markus and Dr. Rosin Peter, “Climate change litigation: A new class of action”, White and Case: Insight, 13 November 2018. To consult through: https://www.whitecase.com/publications/insight/climate-change-litigation-new-class-action

− Gonzales Jenny, “Brazil wants to legalize agribusiness leasing of indigenous lands”, Mongabay: Amazon Agribusiness, 21 February 2019. To consult through: https://news.mongabay.com/2019/02/brazil-wants-to-legalize-agribusiness-leasing-of-indigenous-lands/

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− Griffin Pamela, Ali Saleem, “Wetland Diplomacy: Transboundary Conservation and Ramsar”, Our World: United Nations University, May 2012. To consult through: https://ourworld.unu.edu/en/wetland-diplomacy-transboundary-conservation-and-ramsar

− Kill Juta, “From REDD+ projects to ‘jurisdictional REDD+’: more bad news for the climate and communities”, World Rainforest Movement, 10 July 2010. To consult through: https://wrm.org.uy/articles-from-the-wrm-bulletin/section2/from-redd-projects-to-jurisdictional-redd-more-bad-news-for-the-climate-and-communities/

− Kill Jutta, “Misguided funding: Green Climate Fund support for REDD+”, World Rainforest Movement, 14 May 2019. To consult through: https://wrm.org.uy/articles-from-the-wrm-bulletin/section1/misguided-funding-green-climate-fund-support-for-redd/

− Laurance William, Salt David, “Opinion: Environmental impact assessments aren’t protecting the environment”, Ensia, 13 December 2018. To consult through: https://medium.com/ensia/opinion-environmental-impact-assessments-arent-protecting-the-environment-14cd975230a8

− Lawson Frances, “The litigation effect of the Paris Agreement – New Zealand and Norway take the baton”, Six Pump Court, 4 December 2017. To consult through: http://www.6pumpcourt.co.uk/2017/12/the-litigation-effect-of-the-paris-agreement-new-zealand-and-norway-take-the-baton/

− Lovejoy Tom and Nobre Carlos, “Amazon forest to savannah tipping point could be far closer than thought (commentary)”, Mongabay: Amazon Agribusiness, 5 March 2018. To consult through: https://news.mongabay.com/2018/03/amazon-forest-to-savannah-tipping-point-could-be-far-closer-than-thought-commentary/

− Martins Cássio Soares, Drummond Gláucia Moreira, do Prado Rodrigues Marina, “Brazilian Alliance for Extinction Zero (BAZE) Conservation Strategy”, Alliance for Zero Extinction, July 2018. To consult through: http://zeroextinction.org/case-studies/the-brazilian-alliance-for-extinction-zero-baze-conservation-strategy/

− Mendes Karla, “Brazil’s Congress reverses Bolsonaro, restores Funai’s land demarcation powers”, Mongabay: Amazon Illegal Deforestation, 5 June 2019. To consult through: https://news.mongabay.com/2019/06/brazils-congress-reverses-bolsonaro-restores-funais-land-demarcation-powers/

− Mendes Karla, “China, EU, US trading with Brazilian firms fined for Amazon deforestation: report”, Mongabay, 6 May 2019. To consult through: https://news.mongabay.com/2019/05/china-eu-us-trading-with-brazilian-firms-fined-for-amazon-deforestation-report/

− Poirier Christian, “Brazil's Indigenous Peoples Suffer Wave of Invasions and Attacks”, Amazon Watch, 20 February 2019. To consult through: https://amazonwatch.org/news/2019/0220-brazils-indigenous-peoples-suffer-wave-of-invasions-and-attacks

− Rocha Jan, “Bolsonaro government reveals plan to develop the ‘Unproductive Amazon” Mongabay series: Amazon infrastructure, 28 January 2019. To consult through: https://news.mongabay.com/2019/01/bolsonaro-government-reveals-plan-to-develop-the-unproductive-amazon/

− Sax Sarah, “Brazil to receive first-ever results-based REDD+ payment, but concerns remain”, Mongabay Series: Global Forests, 1 March 2019. To consult through:

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https://news.mongabay.com/2019/03/brazil-to-receive-first-ever-results-based-redd-payment-but-concerns-remain/

− Sax Sarah, “Fears of a dire precedent as Brazil seeks results-based REDD+ payment”, Mongabay Series: Global Forests, 25 February 2019. To consult through: https://news.mongabay.com/2019/02/fears-of-a-dire-precedent-as-brazil-seeks-results-based-redd-payment/

− Sleight Ken, “When the rainforest gets chopped down, so does our oxygen”, ecopedia, April 2013. To consult through: http://www.ecopedia.com/environment/when-rainforest-gets-chopped-down-so-does-our-oxygen/

− Swartz Chris, “After 30 years, only 23 countries have ratified indigenous and tribal peoples Convention ILO 169”, cultural survival, 5 June 2019. To consult through: https://www.culturalsurvival.org/news/after-30-years-only-23-countries-have-ratified-indigenous-and-tribal-peoples-convention-ilo

− Van Dam Anne, “Wetlands: important for nature and for people”, IHE Delft, 31 January 2019. To consult through: https://www.un-ihe.org/stories/world-wetlands-day-2019-ramsar-convention-wetlands-remains-important

− X, “Brazil: country summary”, Climate change tracker, 17 June 2019. To consult through: https://climateactiontracker.org/countries/brazil/

− X, “Brazil: country summary”, Climate change tracker, 4 December 2018. To consult through: https://climateactiontracker.org/countries/brazil/

− X, “CO2 emissions: ranking top 20”, Global Carbon Atlas, 2017. To consult through: http://www.globalcarbonatlas.org/en/CO2-emissions

− X, “GPA’s (Casino Group) Beef Supply Chain Exposed to Deforestation Risks”, Chain reaction Research, 15 April 2019. To consult through: https://chainreactionresearch.com/report/gpas-casino-group-beef-supply-chain-exposed-to-deforestation-risks/

− X, “Most Deforested Conservation Units in the Legal Amazon (2012-2015)”, Imazon. To consult through: https://imazon.org.br/en/most-deforested-conservation-units-in-the-legal-amazon-2012-2015/

− X, “The Global Climate Change Regime”, Council on Foreign Relations, 19 June 2013. To consult through: https://www.cfr.org/report/global-climate-change-regime

− Zwick Steve, “How Markets And Mother Earth Each Found A Home In The Paris Climate Accord”, Ecosystem marketplace, 15 December 2015. To consult through: https://www.ecosystemmarketplace.com/articles/redd-paris/

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APPENDIX

Explanation on how to read the graph577:

• Historical emissions, excl forestry: these are the emissions we generally refer to. Emissions coming from general economy (energy sector, industries, transportation).

• Historical emissions/removal from forestry: These are emissions coming from LULUCF (Land use, Land use change, Forestry). This is mainly based on the carbon stocks of each country.

• NDC targets: these exclude the emissions created by LULUCF.

577 More information: https://climateactiontracker.org/countries/cat-graphs/

Picture 4: emissions and NDC goals Brazil Source: climate change tracker