Law and Policy in Brazil: Protecting the Forest and Enhancing Communities. João M. S. V. da Fonseca - PDF

Law and Policy in Brazil: Protecting the Forest and Enhancing Communities João M. S. V. da Fonseca An Honors Thesis Submitted for partial fulfillment of the requirements for graduation with honors in Political

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Law and Policy in Brazil: Protecting the Forest and Enhancing Communities João M. S. V. da Fonseca An Honors Thesis Submitted for partial fulfillment of the requirements for graduation with honors in Political Science and Legal Studies from Hamline University April 25, 2008 Dedications and Acknowledgments: Special thanks to Karen for her unconditional mentoring and guidance throughout this research process. Jeanne, Chen Pao Chou, Mary C. Ellison, Meg Hobday, and Earl Schwartz for serving on the honors defense board. Special thanks to Hamline University students, staff, and faculty, and community for making Hamline an amazing learning environment, and a home. Special thanks to my families in the US: Deckers and Butlers for having me in their family. Also, I am thankful for my mother and all the people who are taking on the challenges to make this world better. They inspired me to this research. Finally, I want to express my greatest sense of respect and admiration to all those who are struggling in the rainforest, and other parts of the world. It is my dream, to the best my ability, learn with them and work with them toward a better world for everyone and our earth. Abstract A continuing problem in dealing with issues of global environmental protection is striking a balance among conservation and citizens rights and quality of life. This research focuses on whether policies and practices of international and domestic law in Brazil can serve as a model for other areas in addressing the dilemmas of environmental sustainability and the betterment of citizen s livelihood. Applying qualitative methodologies, we examine laws and policies from the 1990s to the present, such as Brazil s federal and state laws, U.N. major documents and treaties, and speeches from important political figures. Using the Amazon region in Brazil as a case study, we argue that one approach to this problem is to have both domestic and international law working in strengthening local communities quality of life at the same time that it seeks environmental preservation by giving more independence to local communities and promoting their environmental friendly practices. Table of Contents Chapter One: Introduction 5 Overview and Significance of Topic... 5 Key Terms and Definitions... 7 Chapter Previews Chapter Two: Communities, Political Power, and the Brazilian Rainforest. 11 First Peoples Groups.. 11 Traditional Peoples Urban Population, Cattle Ranchers, and Soy Bean Producers...15 Summary Chapter Three: Literature Reviews on Sustainable Development, Policies, Laws, and the Rainforest Sustainable Development Laws, Policies, and Politics Summary Chapter Four: A Closer Look at the Intersections of Brazilian and International Law and Institutions Brazilian Law International Law The Great Need for Realistic Laws Summary Chapter V: Institutions, NGOs, and Global Civil Society: Solving the Dilemma. 40 Institutions. 40 NGOs and Civil Society Summary Chapter Six: Observations, Conclusions, and Future Research References... 49 Chapter One: Introduction Overview and Significance of Topic The value of the Brazilian Amazon is astounding and immeasurable. It is the largest single reserve of biological organisms in the world. Scientists estimate that there are between five to thirty million different plants and something in between 800,000 and five million species (Romano 1999, 68) in Brazil s rainforest. Many animal and tree species may no yet have been discovered. The scientific community sees the rainforest as a great asset. The cure for incurable diseases may be in the forest s vast biodiversity. Furthermore, the rainforest acts as a carbon sink and cleanses the world s atmosphere from carbon dioxide and decelerates the unwanted climate change. The rainforest, in spite of its importance, is being deforested at alarming rates, approximately 8,000 square miles a year between the years of 1995 and 2005 (Ministry of the Environment Data). Highly profitable, non-environmental-friendly economic practices, such as cattle ranching, crop-growing (Romano 1999, 68), mining, lumbering and government-developing programs are responsible for the deforestation of the Brazilian Amazon. For instance, government construction of hydroelectric dams and highways require clearing of forest land which in turn encourage urbanization of the region that leads to direct or indirect deforestation of Brazil s rainforest (CIFOR Annual Report 2006). Global warming and the loss of the Amazon s rich biodiversity are often cited in the news as consequences of deforestation (Browder, and Godfrey 1997). What we seldom (Capuzzo 2007; Rohter 2007) hear in the literature is the violation of human rights occurring in the Brazilian Amazon region in the name of development and profit. Communities of first peoples and traditional peoples are being displaced along with their environmentally-friendly way of life. While certain groups are struggling, others are flourishing, from an economic and political standpoint, by using the rainforest lands as a means to profit (Rohter 2003). This prosperity, however, only enriches a few (Hecht, and Cockburn 1989). Hence, it is highly relevant to understand the political power of groups involved in this dilemma and the role of institutions in enforcing these laws. In spite of continuing deforestation, groups within and outside Brazil are fighting against the destruction of the forest. One example is the Brazilian government and international governmental institutions. The rule of law in Brazil and the international rule of law protect the environment and the human rights of the people living there. Government agencies in Brazil such as the FUNAI (National Foundation of the Indian) and the IBAMA (Brazilian Institute of the Environment and of the Renewable Natural Resources) are domestic and international institutions, respectively, charged with the implementation of these laws. Institutions, however, have not achieved the desirable levels of success in enforcing these laws. Deforestation and violation of human rights continue and these are issues that need to be addressed immediately. Although these institutions may be slowly evolving they are not addressing immediate issues as quickly as needed. We argue for laws that take into account the lack of institutional effectiveness and urgency to solve this problem. These new laws should promote environmentally-friendly economic practices while restricting the commercialization of non-environmentally-friendly products. To implement these laws, new institution would have to be created. Although we do not address the specifics of these new institutions we argue that they can be created and successfully perform their functions with realistically attainable amounts of funding or staff. For this project, we applied qualitative research methods. We gathered information from newspapers, academic journals, speeches of governmental figures, and books. This project synthesizes current statistics, laws, and speeches of important governmental figures in respect to the rainforest dilemma. The main goals of this project are to add current information and present new ideas to the greater literature on deforestation in the Brazilian Amazon. This project also summarizes major studies on the international rule of law as well as Brazilian policies. This paper presents ideas which must be seriously considered by politicians from within Brazil and outside. We also discuss the importance of civil societies, I/NGOs, and IGOs in contributing toward a better society. It is our hope that this research contributes to a fair and just solution to these dilemmas. The following section provides the reader with key terms and definitions, and then we move on to discuss these critical issues. Key Terms and Definitions The Amazonia rainforest is the equivalent of the Amazon Biomass (below). The Amazon Biomass is an ecosystem located in the South American states of French Guiana, Guiana, Suriname, Colombia, Bolivia, Ecuador, Venezuela and Brazil. Brazil hosts 63% of the total Amazon biomass. Currently, 20% of Brazil s rainforest has disappeared (Guardian, January 25, 2008), and the number continues to go up. Amazônia Legal was created by Law No of December 6 of The law established the region comprised of seven full states and parts of other two states. By creating the region, the law seeks economic development but also takes the needs of the local community and the environment as limiting factors to economic development. The Amazônia Legal region represents 59% of the Brazilian (more than half of the continental United States) and it encompasses 63% of the rainforest total biomass. In 2004, it was 60% covered with forest (Original area was 74%) billion dollars or 6.1% of Brazil s GDP (2002). Land distribution: 24% Private, 33 % Indigenous reserves, 10 % Special Areas (Military, Protected Ecosystems), and 33% Disputed Lands or Lands with no ownership Accession is, according to the Black s Law Dictionary, the act of acceding or agreeing. Civil Society is a term that is broadly used in this research. It refers to citizens in general, from Brazil and abroad and/or their associations. Convention is, according to the Black s Law Dictionary, An agreement or compact, especially one among nations; a multilateral treaty. Covenant is, according to the Black s Law Dictionary, A formal agreement or promise, usu. in a contract. Environmentally-Friendly Economic Practices: Economic practices that preserve or promote the sustainability of the environment. IBAMA: Brazilian Environment and Renewable Natural Resources Institute. International Community is used similarly to civil society. It encompasses civil society, international organizations, institutions, government, association, and NGOs. International Law refers to rules of conduct that are binding on international actors in relations, transactions, and problems that transcend national frontiers. In its initial phase international states were regarded as the only legitimate international actors. In the 20th Century, states ceased to be the sole subjects of international legal rules. This makes possible the application of norms of conduct to a wide range of individuals, and institutions. Sources of International law as established by the International Court of Justice include: International Conventions, International Custom, General Principles of Law, Judicial decisions, and teachings of the most highly qualified publicists of the various nations. Nongovernmental Organization is, according to the Black s law Dictionary, any scientific, professional, business, or public-interest that is neither affiliated with nor under the direction of a government; an international organization that is not the creation of an agreement among countries, but rather is composed of private individuals or organization. Examples of nongovernmental organization, which are often granted consultative status with the United Nations, include Amnesty International, Greenpeace, and the International Committee of the Red Cross. Ratification is, according to the Black s Law Dictionary, the adoption or enactment, where the act is the last in a series of necessary steps or consents. Treaty is according to the Black s Law Dictionary, an agreement formally signed, ratified, or adhered to between two nations or sovereigns; an international agreement concluded between two or more states in written form and governed by international law. United Nations is, according to the Black s Law Dictionary, an international organization established in 1945 to promote and ensure international peace and security, to promote friendly relations between nations, and to contribute to resolving international problems related to economic, social, cultural, and humanitarian condition. World Trade Organization is, according to the Black s Law Dictionary, the body charged with enforcing intellectual-property provisions of the GATT treaty. WTO comprises the signatories of the Uruguay Round of GATT negotiations. Chapters Preview The rest of this paper contains six sections. Chapter Three presents a literature review of the major literature pieces written on deforestation in the rainforest and the distribution of political power in the Brazilian Amazon region. Chapter Four presents the thesis statement of this project and will explain where this paper situates in respect to other research in the field. The fifth chapter supports the thesis statement. The sixth and final chapter summarizes the main points of this paper, notes possible future research, and suggests ideas for future policies and political action. The following chapter provides the reader a broad overview of the situation of the Brazilian rainforest vis-à-vis the communities and interests in the Amazônia Legal, in Brazil as a whole, and the International Community. Chapter Two: Communities, Political Power, and the Brazilian Rainforest To better comprehend rainforest issues, it can be helpful to understand the groups from the region and their interests. Some of these groups are the first peoples, the traditional peoples, people that live in the rainforest cities, cattle-ranchers, and soy producers. This section describes these groups with a focus on their political power. Political power refers to a group s ability to meet its needs and wants. First Peoples The Amazon rainforest is vital to the first peoples for it is their home. Environmentalists hold the first peoples in high-esteem because of their ability to live in communion with the rainforest. Lutzenberger, an ecologist and former Brazilian Environmental Minister under the Collor administration of 1992, once said: the rainforest Indian is a true ecologist. He knows the forest as no modern ecologist can possibly know it (2001). Nowhere in the literature used for this project was a deep and thoughtful discussion on the use of the term indigenous found. In school in Brazil, just like we learned that Columbus discovered America, we also learned that the Indians were named after the people from the country of India, in Southeast Asia. The literature provided no discussions on the inaccurate use of the term and the implications of misusing this term. The Oxford English Dictionary fails to critically analyze the word Indian and describes it simply as belonging or relating to the race of original inhabitants of America and the West Indies (Moran 1993). The problem with this definition is that it is not only a disservice to both groups of people in that they are being treated as if they are the same, but also because it fails to recognize that the term was used by those who discovered the Americas. Besides inaccurately defining a group of people, what further exacerbates the problem is that the term still is used today. The lack of discussion available reveals the inertia of the academics to subvert negative trends that have for long been engrained in our formal education and culture. Although many Brazilians may identify themselves as Indians, this should not be considered as an indicator that the use of the term is acceptable. This also raises the good question of whether I, a western and privileged Brazilian, should question Brazil s first peoples choice to define themselves as Indians. Part of the issue with my challenging their use of such term is loaded with my own privilege of being part of the dominant culture that imposes its will on Brazil s first peoples without asking them whether they are in agreement with the idea. In spite of the uncertainty of what is the right definition and the right thing to do, we are going to take a risk and refer to the indigenous peoples as Brazil s first peoples. We do concede that the use of this term may still be problematic. However, this term seems to come closer to describing these groups and as problematic as labeling them as Indians. In Brazil, 170 groups of Brazil s first peoples exist (Oxford English Dictionary Online) totaling roughly 300,000. This data, however, varies in the literature (Ramos 1998). Some of these first peoples are the Xavantes, Suruí, and Yanonamo (Lutzenberger 2001). The population of first peoples was much larger prior to the arrival of the Portuguese in the 1500s (Moran 1993). The rainforest is important to the first peoples because their survival depends on it. In this context, survival refers to the first peoples ability to obtain food in the forest, to have a safe home, to have access to natural medicines, and to teach their culture and way of living to their newborns. With continuing deforestation, groups of first peoples are increasingly concerned with the current and yet to come generations for their ways of life and their exposure to the dominant western Brazilian culture. Corporations, cattle ranchers, government development programs, and lumbering companies continue to advance their non-environmental friendly economic practices in the rainforest. Because they have little political power in Brazil, there s little hope that any politicians or authorities will stand up for their cause. The first peoples discarded even Lula, Brazil s populist President, as a potential political ally because of Lula s lack of political support in a land conflict dispute between the first peoples and western Brazilians (New York Times October 15, 2004). Brazil s first peoples and their way of life will continue to decimate if these economic activities continue. Another example of this lack of political power is a couple of letters written by the Kayapó Indians of Paraná. The letters were sent to Mato Grosso s governor, the World Bank and to Brazil s Attorney General. In these letters they spoke of governmental projects that are in violation of Brazil s law (Moran 1993) because the government failed to consult Brazil s first peoples in respect to their stance on these projects. Traditional Peoples The traditional peoples are not nearly as ecologically sophisticated as the first peoples. Much like the first peoples, however, they depend on the rainforest to survive. Many of the traditional peoples are seringueiros and ribeirinhos (Rubber tappers and people from the riverbank communities, respectively) (Heyck 2002). The traditional peoples when facing difficulties to make a living, will work for cattle ranchers (Barbosa 2000) and lumbering companies, unlike the first peoples (Heyck 2002). Much like the first peoples, the traditional peoples have little political power in Brazilian. The story of the seringueiros illustrates why. The seringueiros, who are originally from Northeast Brazil, worked in a system of semi-slavery (Barbosa 2000). They migrated to the North region of Brazil in the first migration wave of 1870 and in the second migration wave of 1941(Heyck 2002). In the second wave, they migrated because of the government s policies encouraging the people to go to the North so they could find new opportunities. These policies were publicized as a Brazilian dream type of campaign promoting a better life. Once arriving to their new destination they encountered several difficulties such as malaria, inhumane working conditions (Heyck 2002) and lack of basic governmental services (Moran 1993). The promises of the Brazilian Dream were hollow. Most likely, the real motivations of the government s Dream policies were twofold: to alleviate the land battles in Northeast Brazil and to colonize the Brazilian rainforest. They did not seek the welfare of the people from the Northeast. Examples of the government s mendacity toward the seringueiros and the traditional peoples are abundant. However, the seringueiros, the first peoples, and other groups have been able to organize and contest the dominant forces that are taking control of their destiny. The seringueiros have been classified as the most engaged in the grassroots movement to save Amazônia, and thus their livelihood (Barbosa 2000). Former seringueiro Chico M
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