“Conflicting areas”: Brazilian energy planning at odds with the protection of Indigenous Peoples and the Amazon Rainforest

Fernanda Frizzo Bragato*

Lara Santos Zangerolame Taroco*


Amazon is the largest tropical rainforest globally, and Brazil is home of 60% of its full extension. Although the Amazon rainforest is an essential global repository of carbon, mitigating climate change,[i] it also awakens deep economic interests, given its potential in untapped natural resources and rich biodiversity. 

The advancement of deforestation in the region backs to the 1960s, when the military took power and adopted economic plans to develop and integrate the Amazon into the rest of the country.[ii] In that period, the government boosted the opening of roads, the discovery of minerals, and the beginning of agricultural colonization in region.[iii] For instance, the herd grew from just 2 million in 1970 to around 80 million heads in 2010. Until 1975, deforestation affected less than 1% of the forest, reaching almost 19% in 2013. Social conflicts caused by violent land tenure disputes also intensified in the late 20th century due to the increasing availability of lands through recently opened roads and the intensification of land grabbing. [iv]   

In the civil-military dictatorship, studies discovered “the existence of an immense hydraulic potential in the Amazon region, mainly on the Tocantins and Xingu rivers.” [v]  The government then initiated the construction of hydroelectric power plants in the region, marked by environmental impacts and violation of the indigenous rights.

Since then, Brazil has been largely relying on hydropower as the main source of electricity generation.[vi] According to the National Energy Plan – 2050 (thereinafter PNE 2050), [vii] which came out in 2020, hydroelectricity supplied almost 2/3 of the electricity demand in October 2019.[viii]

In 1988, the new Constitution restricted the exploitation of hydroelectric resources in Indigenous lands, and environmental legislation established protected biodiversity zones. Convention no. 169 of the ILO, ratified by Brazil in 2002,[ix] reinforced this restriction by providing the FPIC with indigenous peoples before undertaking, or authorizing, any resources’ exploitation within their lands.

Brazil also ratified, in 1998, the Convention on Biological Diversity,[x] and created the National System of Nature Conservation Units in 2000, which established several Conservation Units. In 2004, Brazil reserved more than 500 thousand square kilometers for new Conservation Units. This effort resulted in an expressive reduction in deforestation, which fell from almost 28 thousand square kilometers in 2004 to around 5.8 thousand square kilometers in 2013.[xi]

Nonetheless, the electricity plans continued to prescribe hydroelectricity as the primary energy source, including its exploitation in protected areas, such as Amazonian Indigenous lands and conservation units.

The 2030 National Energy Plan (thereinafter PNE 2030), published in 2007,[xii] identified hydroelectric energy as the main source of energy generation, contributing for 79% of total generation, and 70% of the Brazilian energy potential in the Amazon and Tocantins/Araguaia basins. The document mentioned the existence of “issues” to be solved by the National Congress, citing as an example the possibility of “exploitation of energy potential in Indigenous lands”. [xiii]

In addition, the Decennial Energy Expansion Plan 2006-2015 (thereinafter PDEE 2006-2015)[xiv] pointed out that 41% of the Amazon Biome’s total area comprises “conflicting areas.” This expression refers to legally protected areas that make it impossible or difficult to expand energy production. Of the 41% mentioned, 16% are Conservation Units, and 25% are Indigenous lands. Moreover, neither the PDEE 2006-2015 nor the PNE 2030 mentioned Indigenous demands for more land demarcations in the Amazon. The non-demarcation of Indigenous lands leads the main claims and conflicts involving Indigenous Peoples in Brazil.[xv]

The Growth Acceleration Program (thereinafter PAC),[xvi] formulated by the Federal Government in 2007, provided energy infrastructure as one of its four pillars. The PAC maintained the creation of the Belo Monte HPP, and planned to build another 31 plants in the country’s northern region. Recently, the PNE 2050 also predicted the high participation of hydroelectricity as the country’s primary energy source.

Unlike the previous plans, the PNE 2050 mentions the “socio-environmental complexity for hydroelectric expansion,” [xvii] given that the hydroelectric potential is located predominantly in “areas of high socio-environmental sensitivity, especially in the Amazon region, which has half of its extension covered by legally protected areas.”[xviii]

According to the PNE 2050, 77% of the identified hydroelectric potential overlap with legally protected areas in the national territory, such as Indigenous lands or conservation units. Only 23% of the potential capacity of hydroelectric plants does not overlap with protected areas, which makes it difficult to reconcile “the purposes of a Conservation Unit with the expansion of energy supply.” [xix]  However, the PNE 2050 does not propose any alternative for the overlaps.

Considering the 204 conservation units in the Brazilian Amazon, which comprises around 104 thousand hectares,[xx] the energetic Brazilian plans look inconsistent with the urgent need to curb deforestation.  Likewise, deforestation within Amazonian conservation units jumped from 441km2 in 2018 to 953km2 in 2019, increasing more than 110%.[xxi]  In 2019, the Amazon was the Brazilian biome most affected by deforestation, amounting to 63.2% of the country’s deforested area (totaling 770,148 hectares). [xxii] The total deforested area increases every year. It is estimated that  20% of the rainforest has already been deforested, close to the tipping point, rated between 20-25%,[xxiii] in which ecosystemic changes would cause an irreversible cascade effect.

Also, the impacts of the electricity sector in Indigenous lands are severe and irreversible. Among them, the following stand out: the relocation of communities to other regions, often accompanied by disruptions in their livelihood; the flooding of large land parcels, including sacred areas, such as traditional burial sites, and rich biodiversity; the invasion of traditional lands; the decrease of hunting, fishing and the reduction of arable areas; and the proliferation of insect populations, including arthropods and mollusks, leading to increased incidences of malaria and other infectious diseases.[xxiv]

Considering the Brazilian history and the horizon of 2050, the incompatibility between what is defined by the government’s planning and protected areas – called inappropriately “conflicting areas”-  seems extremely clear. Therefore, state planning for the energy sector predicts conflict situations that tend to escalate in the following years, leading to more human rights violations against Brazilian indigenous peoples and increasing deforestation of the Amazon rainforest.


* Professor at UNISINOS Law Graduate Program. CNPQ Researcher. Coordinator of UNISINOS Human Rights Center. E-mail: fbragato@unisinos.br.

* Law PhD Candidate at UNISINOS. Law Master Degree from Vitoria Law School  – FDV. Member of Unisinos Human Rights Center. E-mail: larasantosz@hotmail.com.

[i] HUMAN RIGHTS WATCH. Rainforest Mafias. How violence and impunity fuel deforestation in Brazil’s Amazon. 2019. Available at: https://www.hrw.org/sites/default/files/report_pdf/brazil0919_web.pdf . Access on: Nov 09, 2021.

[ii] PRATES, Rodolfo Coelho, Carlos José Caetano BACHA. Os processos de desenvolvimento e desmatamento da Amazônia. Economia e Sociedade, dez. 2011, v. 20, n. 3 (43), pp. 601-636. Available at: < https://www.scielo.br/pdf/ecos/v20n3/a06v20n3.pdf. Access on Nov 9, 2021.

[iii] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[iv] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[v] MINISTÉRIO DE MINAS E ENERGIA. Centro da memória da eletricidade no Brasil. Disponível em: http://memoriadaeletricidade.com.br . Access on Nov 9, 2021.

[vi] BRASIL. Presidência da República. II Plano Nacional de Desenvolvimento (1975-1979). Brasília, 1974. Available at: http://www.planalto.gov.br/ccivil_03/leis/1970-1979/anexo/ANL6151-74.PDF . Access on Nov 9, 2021, p.65.

[vii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.75.

[viii] U.S. Energy Information Administration. Hydropower made up 66% of Brazil’s electricity generation in 2020. Sep 7, 2021. Avaliable at: https://www.eia.gov/todayinenergy/detail.php?id=49436. Access on Nov 9, 2021.

[ix] BRASIL. Decreto n. 10.088/2019. Anexo LXXII. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D10088.htm#anexo72. Access on Nov 9, 2021.

[x] BRASIL. Decreto n.2.519/1998. Available at: http://www.planalto.gov.br/ccivil_03/decreto/d2519.htm. Access on Nov 9, 2021.

[xi] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021

[xii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiv] MINISTÉRIO DE MINAS E ENERGIA. Plano Decenal de Expansão Elétrica: 2006-2015. Brasília: EPE, 2006. Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Decenal-de-Expansao-de-Energia-2015. Access on Nov 9, 2021.

[xv] CAVALCANTE, Thiago Leandro Vieira. “Terra Indígena”: aspectos históricos da construção e aplicação de um conceito jurídico. Revista História. Franca, v.35, 2016. Available at:http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0101-90742016000100501&lng=en&nrm=is. Access on Nov 9, 2021.

[xvi] MINISTÉRIO DO PLANEJAMENTO. Sobre o PAC. Available at:http://www.pac.gov.br/sobre-o-pac  Access on Nov 9, 2021.

[xvii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xviii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xix] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xx] ISA. Instituto Socioambiental. Placar de Unidades de Conservação. Pará – Belém do Pará. 2020. Available at: https://widgets.socioambiental.org/placar/ucs/674  Access on Nov 9, 2021.

[xxi]  NOTÍCIAS MPF. Ação do MPF requer atuação imediata do governo federal para combater desmatamento na Amazônia. 2020 Available at: http://www.mpf.mp.br/am/sala-de-imprensa/noticias-am/acao-do-mpf-requer-atuacao-imediata-do-governo-federal-para-combater-desmatamento-na-amazonia . Access on Nov 9, 2021.

[xxii] MAPBIOMAS. Relatório Anual do Desmatamento no Brasil – 2019. Available at: https://mapbiomas.org/relatorio-anual-do-desmatamento-do-brasil-aponta-perda-de-12-milhao-de-hectares-de-vegetacao-nativa-no-pais-em-2019 Access on Nov 9, 2021.

[xxiii] LOVEJOY, Thomas and Carlos NOBRE. AMAZON TIPPING POINT. Science Advances, Feb. 2018, Vol. 4, No. 2. Available at: https://advances.sciencemag.org/content/4/2/eaat2340  Access on Nov 9, 2021.

[xxiv] TADEI, W. P., 1994. Proliferação de mosquitos na Hidrelétrica de Tucuruí, Pará. In: A Questão Energética na Amazônia. Avaliação e Perspectivas Sócio Ambientais. Anais do Seminário Internacional, pp. 2-13, Belém: Núcleo de Altos Estudos na Amazônia, Universidade Federal do Pará/Museu Paraense Emílio Goeldi; ARRUDA, M. E., 1985. Presença de plasmódio brasilianum em macacos capturados na área de enchimento do reservatório da usina hidroelétrica de Tucuruí, Pará. Memórias do Instituto Oswaldo Cruz, 80:367-369; BULCÃO, J. A. P., 1994. Proposta de um Modelo para Avaliação do Impacto dos Empreendimentos Hidroelétricos sobre as Doenças Transmitidas por Vetores com Especial Referência à Malária. Dissertação de Mestrado, Rio de Janeiro: Instituto Oswaldo Cruz, Fundação Oswaldo Cruz.; COUTO, R. C. S., 1996. Hidrelétricas e Saúde na Amazônia: Um Estudo sobre a Tendência da Malária na Área do lago da Hidrelétrica de Tucuruí, Pará. Tese de Doutorado, Rio de Janeiro: Escola Nacional de Saúde Pública, Fundação Instituto Oswaldo Cruz.

Go On! Climate Change and Cultural Extinction: A Human Rights Crisis

Photo credit: UNICEF/Akash

The negative impacts of climate change on the enjoyment of cultural rights — along with the positive potential of cultures to serve as critical tools in responding to the climate emergency — must be placed on the international agenda. A cultural rights perspective is a critical component of the holistic approach needed to respond to catastrophic climate change.

To address these issues, an inter-disciplinary panel will convene in a side event / webinar via Zoom on 21 October co-hosted by UN Special Rapporteur in the field of cultural rights Karima Bennoune and the Human Rights Program of the Roosevelt House Public Policy Institute at Hunter College in New York. The following day, the Special Rapporteur will present her pathbreaking new report on climate change and cultural rights to the UN General Assembly.

Date: 21 October 2020 Time: 1:15pm – 2:45pm EDT / 5:15pm – 6:45pm GMT

Advance registration required. Click here to register.

Panelists:

Mary Robinson, Chief of The Elders; Former President of Ireland, Former UN High Commissioner for Human Rights, and Former Special Envoy of the UN Secretary-General for Climate Change

Karima Bennoune, UN Special Rapporteur in the field of cultural rights

David Boyd, UN Special Rapporteur on human rights and the environment

Joshua Castellino, Executive Director, Minority Rights Group International

Noa Petueli Tapumanaia, Chief Librarian & Archivist, Tuvalu National Library and Archives Department; Tuvalu national librarian

Mohamed Hizyam, youth activist, Maldives (video message)

Moderated by Stephanie Farrior, Distinguished Lecturer, Human Rights Program, Hunter College

ICC Assembly of States Parties Symposium – The ICC: A potential avenue for accountability for ecocide?

During the December 2-7 meeting of the ICC Assembly of States Parties (ASP), IntLawGrrls is featuring blog posts by members of the Canadian Partnership for International Justice as part of its ICC ASP Symposium. Today we welcome Ania Kwadrans, who sends us this post from the Assembly.Ania Kwadrans

Ania Kwadrans is a Senior Policy Advisor at University of Ottawa Refugee Hub, providing strategic and policy guidance on local, national, and global issues affecting refugee rights. Before joining the Refugee Hub, Ania worked with Amnesty International, engaging in strategic litigation on human rights cases before courts of all levels, including the Supreme Court of Canada, and advocacy before Canadian Parliamentary Committees as well as United Nations treaty bodies. Ania holds a J.D. degree from Osgoode Hall Law School, is called to the Ontario bar, and is currently undertaking graduate studies in International Human Rights Law at the University of Oxford.

“For many decades the human species has been at war with the planet. And the planet is fighting back. … Our war against nature must stop. And we know that this is possible.”

These evocative words of the UN Secretary General Antonio Guterres delivered at a pre-COP25 press conference, 1 December 2019, suggest a connective line between environmental destruction and the very types of crimes that “threaten the peace, security and well-being of the world” falling within the ambit of the Rome Statute of the International Criminal Court (Rome Statute).

Indeed, it is now widely understood that the activities of resource extraction industries shaping and feeding humanity’s culture of overconsumption have not only been destructive to the immediate environments in which they take place, but they have also set the world on a path toward devastating climate change. Despite the recognition in the Paris Agreement, in 2015, by a majority of States, that “climate change is a common concern of humankind” and that as a result global temperature rises need to be limited to 1.5 degrees above pre-industrial levels to “significantly reduce the risks and impacts of climate change”, the world had already reached temperatures approximately 1 degree Celsius above pre-industrial levels, according to the 2018 Intergovernmental Panel on Climate Change’s Special Report. The Special Report warned that this is putting Earth on a path to reach the critical 1.5 degree threshold by 2040, unless profound societal changes are implemented to eliminate our reliance on greenhouse gas emissions. It comes as no surprise, therefore, that in her 9 September 2019 address to the Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet called climate change “a rapidly growing and global threat to human rights”, the human implications of which are “catastrophic.” She noted: “We are burning up our future – literally.”

Within this context, on the first day of the 18th Assembly of the States Parties (ASP18) to the International Criminal Court, the State of Vanuatu, Ecological Defence Integrity, Green Transparency, the Heinrich Boll Foundation, and the Institute for Environmental Security hosted a side event entitled “Investigating & Prosecuting Ecocide: The Current and Future Role of the ICC.” The event explored current and future opportunities for the International Criminal Court (ICC) to address the climate crisis and rapid environmental degradation we are seeing around the globe.

The type of environmental destruction and its impacts on the sustainability of living beings on Earth was referred to during the event by the term “ecocide.” Polly Higgins, a British lawyer who dedicated her life’s efforts to the recognition of ecocide, defined the term as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”[1] When, however, human activities are at the root of such extensive destruction to our world’s ecosystems, Higgins argued that such actions can attract international criminal responsibility. Higgins argued that this can be the case when:

[a]cts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.[2]

Further, such impacts must be “widespread and long-term or severe” in order to meet the requisite gravity threshold.[3]

In 2016, the ICC Office of the Prosecutor published a Policy paper on case selection and prioritisation, in which the Prosecutor set as policy giving “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” (para. 41). The side event explored what impact this policy has had on the ICC’s functioning since 2016, and what opportunities it and the Rome Statute might present to bring perpetrators of ecocide to justice and taking actions to reverse course and save our dying ecosystems.

At the side event, the audience was first welcomed by John H. Licht, Ambassador of Vanuatu to the United Kingdom and European Union. He was then followed by Natan Brechtefeld Teewe, former Minister of Justice for Kiribati. He emphasized how Kiribati, a small island nation extremely vulnerable to climate change, and the newest State Party to the ICC, could benefit from the ICC’s assistance in investigating and prosecuting environmental offences. The following speaker to provide preliminary remarks was Losaline Teo, Crown Counsel of Tuvalu, who similarly described the effects of climate change her own small island state was already feeling: rising air temperature, more intense and frequent storm surges, declining rain falls, soil salination destroying root crops, and loss of fish stock, the country’s main source of revenue. Like Mr. Teewe, she argued that Tuvalu needed international assistance in order to have the capacity to fight impunity for actions that cause climate change. These three sets of introductory remarks effectively reminded the audience of the real and imminent threats to existing human populations caused by human-induced climate change.

After these introductory remarks, Valérie Cabanes of the Global Alliance for the Rights of Nature noted that multinational resource extraction companies should have been aware of the impacts of their activities since the late 1980s, when the Intergovernmental Panel on Climate Change was established to examine the consequences of climate change. Yet, these companies have only intensified their research and exploitation activities, which are heavily subsidized to the tune of $5.2 trillion (in 2017). This amount represents approximately 6.5 percent of the global GDP. Ms. Cabanes noted that a draft Ecocide Convention has been in consideration in various forms since 1973 which envisages the establishment of an international environmental court, but argued that a much simpler and quicker avenue to achieve the same objectives of recognizing ecocide as an international crime would be to amend the Rome Statute to extend its jurisdiction over this as the fifth atrocity crime.

The following speaker, Richard Rogers of Global Diligence, argued that while States Parties should pursue an amendment to the Rome Statute to introduce a new crime of ecocide, there are meaningful actions that can also be taken within the bounds of the current treaty provisions. He noted that the case of land grabs in Cambodia are exemplary of actions that cause significant damage to the environment, including through widespread deforestation, that also are realized through the perpetration of potential crimes against humanity such as forcible transfer (Rome Statute, art. 7(1)(d)). Human rights defenders are often detained or even killed when attempting to defend their lands. While it is an indirect route to address environmental crimes, he noted that it is nevertheless a start, given that some of the worst environmental degradation flows from illegal land grabs, particularly on indigenous lands. In October 2014, Mr. Rogers filed a case at the ICC on behalf of Cambodian victims evicted from their lands. Despite the OTP’s 2016 policy note, this case has not been prioritised, leading Mr. Rogers to challenge the ICC and the Prosecutor to follow her office’s own policy and to prioritise this situation because of the significant environmental damages involved.

Mr. Rogers was followed by Rodrigo Liedó, of FIBGAR, who focused his remarks on the 2016 OTP policy paper, and argued that on the one hand, it only has a potential impact on the assessment of the gravity of the crime in question. The fact that this policy guidance has not been relied upon since the issuance of the policy paper indicates that its value might be overestimated. However, he ultimately concluded that it should be seen as a promising step toward a more complete assessment of environmental harms as components of international crimes. The ICC is in a process of revision and reform, an opportune timing according to Mr. Liedó, to consider the codification of a new crime of ecocide.

The final speaker for the session was Jojo Mehta, from Ecological Defence Integrity. Ms. Mehta described her organization’s global campaign: “Stop Ecocide: Change the Law”. The mission of the campaign is the introduction of the crime of ecocide into international criminal law. She argued that the ICC is an advantageous arena for such action because, victims have equal voices to states within it. Moreover, in her perspective, only a 2/3 majority is needed to put ecocide on the agenda for potential discussion of an amendment to the Rome Statute and this is feasible in 2020 if key States are willing to step forward. Ms. Mehta emphasized that recognizing ecocide as a Rome Statute crime would give civil society political leverage around which to mobilize, and it would also create moral leverage by drawing a red line between actions affecting our environment that are acceptable and actions which are not. According to her, even initiating the conversation will begin to shift the discussion and start putting a timeline in place toward full recognition.

The speakers concluded with reflections that a two-pronged approach should be followed: leveraging the OTP’s 2016 report and existing crimes within the jurisdiction of the Rome Statute to seek accountability for environmental crimes to the extent possible; while pursuing the introduction of a new crime of ecocide via amendment to the Rome Statute. As the former Secretary-General Ban Ki-moon appealed to UN Member States to “defend the science that shows we are destabilizing our climate and stretching planetary boundaries to a perilous degree”, could the international criminal mechanisms established by the Rome Statute provide one possible way of mounting this defense?

[1] As cited in Anastacia Greene, “The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?” (2019) 30:3 Fordham Law Review 1 at 2.

[2] Ibid at 2-3.

[3] Ibid at 3.

The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

CPIJSSHRC

 

 

Go On! Rule of Law for Oceans, 4-5 November 2019

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Brazilian NGO addressing environment and human rights receives inaugural Human Rights & Business Award

Justica nos Trilhos - logo

The Brazilian NGO Justiça nos Trilhos will receive the inaugural award from the Human Rights and Business Award Foundation, the recently-formed foundation announced today.  The award, which is accompanied by a $50,000 grant, is made in recognition of “outstanding work by human rights defenders in the Global South or former Soviet Union addressing the human rights impacts of business in those regions”.

As the foundation states in its press release:

Justiça nos Trilhos is an organization working closely with local communities in remote parts of Brazil – including indigenous peoples, peasants, and Afro-descendants – to address human rights and environmental abuses by mining and steel companies, in particular the multinational Vale.

Mining and steel companies have polluted the rivers on which these people depend for drinking water and their livelihoods, polluted the air causing respiratory and eyesight problems, contaminated the soil with industrial waste, displaced communities, and decimated the cultures and lives of indigenous peoples.

The foundation notes:

The human rights defenders of Justiça nos Trilhos, and the local communities they work with, have been subjected to surveillance and retaliatory lawsuits by Vale.

Information about the Vale mining company is available here.  Two stories about the work of Justiça nos Trilhos, the first of which includes Vale’s responses:

Session on Tuesday at UN Forum on Business and Human Rights

BHR ForumDanilo Chammas, a lawyer at Justiça nos Trilhos, will accept the award on behalf of the organization at a session being held at the United Nations Forum on Business and Human Rights in Geneva on Tuesday 27 November. The session “will be an interactive learning and discussion opportunity, linking the particular experiences of the award recipient and the lessons learned through those experiences to the Forum’s priority issues including human rights due diligence, sector-focused challenges, and the UN Guiding Principles [on Business and Human Rights]”.

Human Rights & Business Award – Human rights defenders in the Global South
– Tuesday 27 Nov, 18:15-19:45, Room XX, Palais des Nations, Geneva
– The session’s objectives, key discussion questions, and discussants:  here

The Business and Human Rights Award Foundation was established by the founder of the award-winning Business and Human Rights Resource Centre, Chris Avery.  The foundation website was launched today in eight languages.

Press release announcing the 2018 Business and Human Rights Award:

 

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

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A Constitution for Mars: A Call For Founding Feminists

Constitutions. Hamilton. Founding Fathers. Fathers. Father. Patriarchy.

purple and brown colored planet

In July scientists found a lake in Mars, raising hope that life on Mars, or a ‘colony’ on Mars, may become possible. Elon Musk has been telling us it is possible. Blue Origin tells us that ‘our dramatic next step will take us closer to the potential space holds for us all’. Space exploration has become the sport and object of the super rich and of transhumanists who are convinced that the Event is coming upon us.  Beyond the bunkers in New Zealand built by the capitalist uber elite, space, planets, and terrain beyond ‘the Earth, our home’ is destined for exploration. And if they achieve their goals, then what?  When the first to arrive are the super elite and the wealthy will they do anything other than impose the capitalist extractivist patriarchy under which we live here and now?  What type of rules would these founding fathers desire to regulate their affairs in Mars? Who will the ‘founding fathers’ be?  Bezos, Musk, Zuckerberg, Trump?

It is time that international feminist lawyers start talking about founding space feminism (For an excellent doctrinal overview of the laws on outer space including environmental protection and appropriation see Gerardine Goh Escolar here).  If space exploration is to happen (and it is happening), we must ensure that life in other spaces and times are not subject to the oppression, poverty, racism, sexism, and inequality to which most people on this planet are subjected to. It is up to us to become what Giaconda Belli termed the portadores de sueños (in her poem) and to write the treaties, covenants, and other instruments that provide for an alternative and better future. We must ensure that our ‘space’ constitution is binding and that it binds those who wish us to be bound.

The idea of a Bill of Rights in Mars or a Constitution for Mars is not new. CS Cockell has argued in an Essay on Extraterrestrial Liberty that ‘the most profound irony of the settlement of space is that the endless and apparently free expanses of interplanetary and interstellar space will in fact allow for, and nurture, some of the most appalling tyrannies that human society can contrive  Thwarting this tyranny will be the greatest social challenge in the successful establishment of extraterrestrial settlements’. He and others have previously gathered to discuss what a bill of rights for Mars would look like.  Astrobiologists, it seems, may be ahead of us critically minded lawyers.

The race for space exploration is undoubtedly influenced by the destruction of the planet, and fears over climate security. The UN has recently held debates on water, peace and security. The Rio Declaration on Environment and Development, principle 25 make it clear that ‘Peace, development and environmental protection are interdependent and indivisible’. Environmental peacebuilding recognises that conflict can be caused by or exacerbated by resource scarcity or resource abundance (for example, the war in Sierra Leone and its links to ‘blood diamonds’). More recently, General Recommendation No 35 (updating General Recommendation No 19 on violence against women) of the CEDAW Committee specifically recognises that:

Gender based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among others, in the contexts of displacement, migration, increased globalization of economic activities including global supply chains, extractive and offshoring industry, militarisation, foreign occupation, armed conflict, violent extremism and terrorism.

As GR35 recognises, extractive industries exacerbate violence against women and girls. It is deadly. GR35 also recognises the role that corporations play when they operate extraterritorially. And what about when they operate extra-terrestrially?

So what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution?  Around the world, the brave, the portadores de sueños work on the ground against systematic violence.  Activists and academics work together on feminismos territoriales, and the rights of  women, forests, trees, and rivers.  Who will protect their rights in Mars?

The feminists.

 

Keina Yoshida is a research fellow at the Centre for Women, Peace and Security.  She is currently working on the AHRC funded project a Feminist International Law of Peace and Security.

Law as a Method of Destruction: Dismantling Indigenous Land Rights and Protective Institutions in Brazil

Reporting on her 2016 official visit to Brazil, Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz declared that “[t]oday, indigenous peoples face more profound risks than at any time since the adoption of the Constitution in 1988.”[1] Brazil’s largest indigenous group, the Guaraní-Kaiowá, have and continue to suffer large-scale displacement and dispossession from their ancestral lands in the state of Mato Grosso do Sul. Encroaching large-scale agribusinesses and private landowners grab lands, transform forests into farms, and reap huge profits from agriculture exports produced on Guaraní lands. At the same time, farmers entangle indigenous representatives in decades-long legal battles over the land’s title to stave off official demarcation of lands as indigenous. Some demarcation disputes have resulted in violent clashes between private farmers, public officials and indigenous peoples.

The Guaraní-Kaiowá communities experience devastating consequences as a result of the land grabs and the ongoing violence of state-sponsored settler colonialism. To the Guaraní-Kaiowá, “land is life;” without the land, communities lack access to adequate food, water, shelter, healthcare, education and other necessities. In addition to skyrocketing suicide and childhood starvation rates, Guaraní communities are targets of violent attacks, forced removals, and dozens of assassinations of leadership. Alarmingly, the Guaraní-Kaiowá’s population has dropped from 400,000 to only 50,000 people, motivating community leaders to call this protracted conflict a “silent genocide.”[2]

As in many unfolding processes of mass atrocity, the law has played an integral role in facilitating the systematic destruction of the Guaraní-Kaiowá. Although article 231 of Brazil’s Constitution guarantees indigenous groups the collective rights of return to—and occupation and use of—their traditional lands in line with international obligations, public and private sector interests have prevented the Guaraní-Kaiowá from realizing these rights. According to Tauli-Corpuz, the law has been used to obstruct, rather than to guarantee, indigenous peoples rights in Brazil.[3] The agribusiness sector wields enormous political power in Brazil, and the ruralista caucus (“Agricultural Parliamentary Group,” or “FPA”) has used its influence to roll back not only environmental and food production regulations, but also constitutional guarantees of indigenous peoples to original lands. Indeed, the FPA supports President Michel Temer’s government while funding a massive campaign to all but eliminate indigenous land rights. In direct contravention of its international human rights treaty obligations, the state has enacted laws, passed executive decrees and issued judgments to dismantle protections of ancestral lands and indigenous peoples.

For instance, on July 20, 2017, the President approved Union Attorney General’s Opinion 001/2017, which binds all federal public administrative agencies to limit indigenous rights to demarcation in ways that do not adhere to international treaty obligations or regional human rights jurisprudence. One limitation is the application of the “temporal framework” doctrine (“tese do marco temporal”), a judicial thesis that denies indigenous peoples the right to ancestral lands if the community did not occupy and control those lands at the time the 1988 Brazilian Constitution was promulgated. Given that prior to 1988 most indigenous communities were forcibly removed from their lands in a period of military dictatorship in which the state denied legal capacity to indigenous peoples, such a doctrine severely curtails the constitutional guarantees of indigenous peoples to their original lands. Application of the temporal framework doctrine would affect 748 administrative demarcation processes presently in progress across the country.

Additionally, several proposed bills in Congress further threaten to undo protections of indigenous rights in Brazil. One of the most precarious legislative proposals is Constitutional Amendment Bill 215 (“PEC 215/2000”). If passed, PEC 215/2000 effectively would stop indigenous land demarcations, and would permit new economic and “development” activities, as well as rural settlements, on indigenous lands without free, prior and informed consent of indigenous communities as required under international law.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) includes the clearest and most advanced articulations of the FPIC requirement under international law.[4] Although UNDRIP is non-binding, the Declaration serves as a strong, interpretive guide to determine the content and scope of indigenous rights in international law.[5] Located under several articles of the UNDRIP, FPIC again is derived from and grounded in the rights to self-determination, culture and the use of traditional lands, territories and resources.[6] Brazil also is obligated inter alia as state party to the International Labour Organization’s Convention No. 169 (“ILO No. 169”) to uphold these rights.

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Un petit part de la part de la planète

Do Your Part,” Allied posters proclaimed during World War II. Women were urged to join the U.S. Army Auxiliary to work at defense plants, families were pressed to keep farms producing, and all were advised to keep their mouths shut. This coming-together defeated Axis enemies and gave rise to unprecedented postwar intergovernmental cooperation.

That 72-year-old global infrastructure is under threat. Last week saw fractious meetings at NATO headquarters (where I’m due to bring students later this month) and Taormina (just 75 miles north of the Siracusa summer school where I was then teaching). Today it’s the President’s invocation of the provision permitting U.S. withdrawal, in about 4 years, from the 2015 Paris Agreement on climate change, to which 195 – nearly all – the countries in the world have agreed.

The news spurs reflection on the very small part I played in the development of the Paris Agreement.

As with most international accords, this one did not happen on the spur of the moment. Rather, countries had engaged in consultations and negotiations for years before the summit. France was especially active, eager to accomplish something significant in October-November 2015, when it would host COP21, the 21st Conference of the Parties to the 1992 U.N. Framework Convention on Climate Change.

Thus in June 2015 I joined French and American colleagues at a symposium entitled “Le Changement climatique, miroir de la globalisation (Climate Change, Mirror of Globalization),” a pre-summit preparatory meeting whose cosponsors included the Collège de France and Fondation Charles Léopold Mayer pour le Progrès de l’Homme. Our interventions aided thinking about the impending summit.

My own contribution, “Le changement climatique et la sécurité humaine,” reprised a chapter published in Regards croisés sur l’internationalisation du droit : France-États-Unis (Mireille Delmas-Marty & Stephen Breyer eds., 2009). As indicated in the English version, “Climate Change and Human Security,” the essay demonstrated that litigation would not proved a fruitful method for combatting climate change. It thus advocated a human security approach, one drawn from U.S. legal traditions like the 1941 Four Freedoms speech of President Franklin Delano Roosevelt and the 1945 Statement of Essential Human Rights of the American Law Institute.

The essay concludes:

“Emphasis on state duty carries with it an assumption that legislative and executive officials will assume their obligation to avoid harm from occurring. Such officials may not assume, as seems the wont of some who operate under a litigation model, that they may act as they wish unless and until a court steps in to order some belated and imperfect sanction for the wrongs they have committed. A state that endeavors to achieve human security, moreover, is likely to fashion comprehensive, before-the-fact remedies. That is preferable even in isolated cases; in other words, we would rather have an agent of the state eschewed torture than have to compensate a victim after she has suffered state torture. This comprehensive, before-the-fact framework is even more preferable with regard to human insecurities that have communitywide, even planetary consequences – to name one, the threat to human security posed by climate change.”

Theories like these undergird the agreement reached in fall 2015. They yet may maintain a firm hold in these next 4 years.

(Cross-posted from Diane Marie Amann)

Ogiek: The African Court of Human and Peoples’ Rights first decision on indigenous rights

This past Friday, 26 May 2017, the African Court of Human and Peoples’ Rights handed down its first judgement on the rights of indigenous peoples in the matter of African Commission of Human and Peoples’ Rights v The Republic of Kenya (the Ogiek case). The case concerns the Ogiek people, an indigenous community of about 20 000 people who live in the Mau Forest in the central Rift Valley in Kenya. In 2009, officials from the Kenyan Forest Service served an eviction notice on the community and other settlers requiring them to leave the forest within 30 days. The notice was issued on the grounds that the forest constitutes a reserve water catchment zone and that the land is state property. The Ogiek people argued that the decision to evict was taken without regard to the importance of the forest to the community and to their survival, and without any consultation with the community, in violation of the State’s obligations under the African Charter of Human and Peoples’ Rights.

Like the Endorois decision handed down by the African Commission of Human and Peoples’ Rights in 2009 (also a case about the eviction of a group by the Kenyan Forestry Service), this case turns on questions about what constitutes an indigenous group and whether Kenya’s alleged environmental concerns justify overriding obligations to these groups under the African Charter.

The Court found that Kenya had violated the Ogiek community’s rights under Article 14 (the right to property), Article 2 (the right to equality), Article 8 (the right to freedom of religion), Article 17(2) and (3) (the right to culture), Article 21 (the right to free disposal of wealth and natural resources), Article 22 (the right to economic, social and cultural development) and Article 1 (the State duty to take all legislative and other measures necessary to give effect to the Charter). The Court found no violation of Article 4 (the right to life). In this post I briefly consider some of these Articles and the Court’s findings.

The Right to Property – Article 14

The Court found that Kenya had violated the rights of the Ogiek under Article 14 of the African Charter. Article 14 secures the right to property but the Court referred to the ‘right to land’ in its reasoning, interpreting the right in light of the UN Declaration on the Rights of Indigenous Peoples. The Court found the Ogiek had occupied the land since time immemorial and that, as an indigenous community, the community was entitled to occupy its ancestral land. (A report on the Ogiek for the Forest Peoples Programme, documents a series of evictions and forced removals of the Ogiek from their land starting in 1911, and continuing after independence.)

Rights to land for indigenous communities, the Court found, did not necessarily mean rights to property (an approach that has been central to the Inter-American Court and Commission’s indigenous rights jurisprudence). Rather, the Court emphasised rights to possession and unhindered use of their territories.  Continue reading