By Emma Macfarlane*
Jair Bolsonaro and the Demise of Brazilian Environmental Protections
Jair Bolsonaro is Brazil’s right-wing president who was elected in October 2018. Bolsonaro has been labeled a strongman, is an outspoken fan of Brazil’s former military dictatorship, and has earned the nickname “The Tropical Trump.”[i] Although his term has thus far been tumultuous – he has barely governed for a week, in part due to ongoing recovery from a fatal stabbing during his campaign in September[ii] – his election promises were alarming enough to cause factions of Brazilian society to dread the upcoming term. Perhaps the most feared development was Bolsonaro’s campaign pledge to pull out of the Paris Climate Accord and to exploit the Amazon rainforest, of which 60% is the property of Brazil,[iii] for all that it’s worth. With these campaign promises and since Bolsonaro’s election, indigenous communities and environmentalists have grown increasingly uneasy.[iv] This blog explores the impact that Bolsonaro’s environmental policies will have on the Amazon Rainforest, the legal challenges that he may encounter in his efforts to carry out damaging agricultural developments, and the international legal strategies that may prove best in staving off untold environmental catastrophe. Although there are a series of potential legal obstacles facing Bolsnaro, cross-border partnerships appear to be the strongest method for protecting the Amazon during his presidency.
Impact of Bolsonaro’s Policies on the Amazon Rainforest
The impact that Jair Bolsonaro’s planned developments will have on the rainforest is twofold. First, environmental disruption of an incalculable measure will occur. The Amazon rainforest is known as the “lungs of the planet”: it takes in nearly two billion tons of carbon dioxide a year and releases twenty percent of earth’s oxygen.[v] If Bolsonaro proceeds with the conversion of vast portions of rainforest to pastureland and cropland as promised, the fragile ecosystem will face a devastating blow with dangerous repercussions for the entire planet.[vi] Second, indigenous communities will be disrupted beyond repair. Today, members of various tribes serve as volunteer “forest guardians,” which work to drive illegal loggers from their reserve.[vii] If Bolsonaro’s plans come to fruition, these small bands will not be able to keep the exploitation at bay. Further, Bolsonaro’s victory has already bolstered the renegade loggers and criminal groups that unlawfully exploit the animals and timber in the rainforest.[viii] A native leader from the Javari Valley Indigenous Land in the Amazon reported that there had been an upswing in invasions of his native territory since Bolsonaro’s election, and that criminal groups now pillage with impunity.[ix] The NGO Repórter Brasil found that at least fourteen Indigenous territories scattered throughout the Amazon are currently threatened by the invaders.[x]
Legal Challenges Facing Bolsonaro
Despite the upswing in damaging environmental practices, there are still several legal challenges that Bolsonaro must overcome to fulfill his election promises as to the wholesale exploitation of the Amazon. The first is the constitution of Brazil. Brazil’s constitution guarantees the protection of Indigenous lands, many of which are located within the Amazon.[xi] The two causes are inextricably linked: decimation of Indigenous lands goes hand in hand with the destruction of the Amazon rainforest.[xii] Although Bolsonaro has repeatedly stated his commitment to the Brazilian constitution,[xiii] his track record tells a different story. Throughout his long political career, Bolsonaro has defended ideas that run contrary to the constitution. This includes his impassioned defense of the death penalty and, more recently, giving free reign to his government to spy on and intimidate human and environmental rights defenders.[xiv] In considering the trajectory of Bolsonaro’s political career, this constitutional challenge is perhaps the least likely legal obstacle to stand in the way of the destruction of the Amazon.
International legal barriers may provide a larger impediment to Bolsonaro’s assault on the rainforest than domestic law. Perhaps the most important barrier is the Paris Climate Accord, which was ratified by Brazil prior to Bolsonaro’s election. In its commitment to the Paris Agreement, Brazil bound itself to reduce greenhouse gas emissions by 37% by 2025 (from 2005).[xv] Bolsonaro seems to be heading in the opposite direction. Deforestation rates are on the upswing, and Brazil would reportedly need to scale back its deforestation rates by two-thirds to comply with its treaty obligations.[xvi] This is unsurprising: Bolsonaro ran on a campaign that vowed to exit the agreement, thereby relieving Brazil of its international obligations.[xvii] Although the earliest that Bolsonaro can officially exit the Paris Accord is November 2020, there are no legal barriers preventing him from heading in the opposite direction for the time being.[xviii]
The Amazon Rainforest plays into the Paris Agreement in an important way. As the Amazon is a “carbon sink” and is critical in keeping carbon dioxide out of the world’s atmosphere, the preservation of the rainforest is an important component of Brazil’s commitment to the Paris Agreement.[xix] Another grave aspect of deforestation is the enormous stores of carbon that will be released from beneath the soil of the rainforest; this would greatly increase the chance of a self-reinforcing greenhouse effect where, “the earth warms and causes a snowball effect of self-reinforcing carbon release worldwide from warming soils, melting permafrost, reduced CO2 absorption by oceans, forest fires, forest death from insect outbreaks, and more.”[xx]
The status of the Amazon Rainforest is that of a public good, and as such, an international spotlight has been cast on Bolsonaro’s domestic policies toward its preservation (or more accurately, the lack thereof). Some scholars believe that the threat of the negative image of Brazil on the international stage will keep deforestation from climbing any higher.[xxi] Others are less optimistic: experts focused on the threat toward indigenous people believe that Bolsonaro’s economic project to destroy the Amazon will proceed uninhibited despite international outcry, and that native tribes in the rainforest will receive the brunt of the blow.[xxii] What many authorities on Bolsonaro’s environmental policies do seem to agree on is that the Paris Climate Accord alone will not be the primary impediment to inhibiting Bolsonaro’s destruction of the Amazon. Instead, soft power is needed in the form of international economic pressure from key importers of Brazilian goods.[xxiii] This may in turn rally the Brazilian business lobby to restrain the most damaging of Bolsonaro’s environmental practices.[xxiv]
The international community may have other tools at its disposal outside of the Paris Agreement to halt Bolsonaro’s damaging environmental reforms, one of which is customary international law (CIL). CIL, defined by the American Law Institute’s Restatement of the Foreign Relations Law of the United States, emerges “from a general and consistent practice of states, followed by them from a sense of legal obligation.”[xxv] In this instance, CIL may be invoked to prevent the destruction of international public goods like the Amazon Rainforest. However, without some intricate legal moves, one may be hard-pressed to find examples in which the sovereign concerns of a country have been willingly set aside in favor of the preservation of an international utility. As Diana Eitman has convincingly argued, treaties have consistently reaffirmed customary international law that resources within state borders belong to those states and may be exploited by them.[xxvi] From the standpoint of international political theory, this makes perfect sense: states are reluctant to impose obligations on others that may come back to bite them, and it’s foreseeable that every state has some resource within its borders which may be loosely classified as a public good.
Aside from treaties and customary international law, the work of cross-border non-governmental organizations may be the most promising solution in standing up to Bolsonaro’s assault on the Amazon. One key aspect of NGO opposition is cross-border alliances, as those organizations within Brazil already face an uphill battle: Bolsonaro has repeatedly pledged to give “no money” to NGOs within Brazil, and deplores spending public money on what he characterizes as “political-ideological activism.”[xxvii] In light of the impermanent nature of treaties, the lack of favorable customary international law on the protection of internal public goods, and the dearth of support for Brazilian NGOs, cross-border partnerships seem the most viable alternative to the protection of the Amazonian rainforest under Bolsonaro’s presidency.
*Emma Macfarlane is a Junior Editor for MJEAL. They can be reached at firstname.lastname@example.org.
[i] Dave Keating, The Paris Climate Agreed Survived Trump. Can It Survive Brazil’s Bolsonaro?, Forbes (Oct. 24, 2018, 9:44AM), https://www.forbes.com/sites/davekeating/2018/10/24/the-paris-climate-agreement-survived-trump-can-it-survive-brazils-bolsonaro/#3d406e1c6435
[ii] Jair Bolsonaro’s reforms in Brazil begin with a bang, Financial Times (Feb. 23, 2018), https://www.ft.com/content/2e299e06-36a1-11e9-bb0c-42459962a812
[iii] Associated Press, Scientists warn Brazil’s president-elect’s policies may smother Amazon, the earth’s ‘lungs’, NBC News (Nov. 26, 2018, 5:05PM), https://www.nbcnews.com/news/latino/brazil-s-president-elect-jair-bolsonaro-may-smother-rainforest-scientists-n940326.
[iv] Brazil election: Bolsonaro hands out tough anti-crime message, BBC(Oct. 7, 2018), https://www.bbc.com/news/world-latin-america-45774849. See also Christian Poirier, As President Bolsonaro Takes Power, Brazil’s Indigenous Movement Prepares to Resist (Jan. 1, 2019), https://amazonwatch.org/news/2019/0101-as-president-bolsonaro-takes-power-brazils-indigenous-movement-prepares-to-resist.
[vii] Scott Wallace and Chris Fagan, Isolated Nomads Are Under Siege in the Amazon Jungle, National Geographic (Oct. 2018), https://www.nationalgeographic.com/magazine/2018/10/isolated-brazil-peru-amazon-tribes-remote-protected/.
[viii] Sam Cowie, Jair Bolsonaro praised the genocide of Indigenous people. Now he’s emboldening attackers of Brazil’s Amazonian communities, The Intercept (Feb. 16, 2019, 7:31AM), https://theintercept.com/2019/02/16/brazil-bolsonaro-indigenous-land/.
[ix] Scott Wallace, Brazil’s new leader promised to exploit the Amazon—but can he?, National Geographic (Oct. 31, 2018), https://www.nationalgeographic.com/environment/2018/10/brazil-president-jair-bolsonaro-promises-exploit-amazon-rain-forest/.
[x] Joana Moncau and Thais Lazzeri, Sob ataque pós-eleição, terras indígenas estão desprotegidas com desmonte da Funai, Reporter Brasil (Feb. 10, 2019), https://reporterbrasil.org.br/2019/02/sob-ataque-pos-eleicao-terras-indigenas-estao-desprotegidas-com-desmonte-da-funai/.
[xi] Cowie, supra note viii.
[xiii] Carolina Gonçalves and Karien Melo, Bolsonaro reiterates commitment to Constitution in Congress address, Agencia Brasil (Nov. 6, 2018, 3:20PM), http://agenciabrasil.ebc.com.br/en/politica/noticia/2018-11/bolsonaro-reiterates-commitment-constitution-congress-address.
[xiv] Poirier, supra note iii.
[xv] Anthony Pereira, Jair Bolsonaro can be stopped from trashing the Amazon – here’s how, The Conversation (Jan. 4, 2019, 11:23AM), https://theconversation.com/jair-bolsonaro-can-be-stopped-from-trashing-the-amazon-heres-how-109346.
[xvi] Wallace, supra note ix.
[xvii] Josh Gabbatiss, Brazil’s new environment minister says country should stay in Paris Agreement despite climate sceptic president Bolsonaro, Independent (Dec. 11, 2018, 3:45PM), https://www.independent.co.uk/news/world/americas/brazil-jair-bolsonaro-climate-change-paris-agreement-environment-minister-ricardo-salles-a8677611.html.
[xviii] Keating, supra note i.
[xx] Philip Fearnside, Why Brazil’s New President Poses an Unprecedented Threat to the Amazon, Yale Environment 360 (Nov. 8, 2018), https://e360.yale.edu/features/why-brazils-new-president-poses-an-unprecedented-threat-to-the-amazon.
[xxi] Wallace, supra note ix.
[xxiv] Casey O’Brien, What Will It Take to Rein in the Trump of Brazil?, Sierra (Dec. 27, 2018), https://www.sierraclub.org/sierra/what-will-it-take-rein-trump-brazil.
[xxv] David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons, 30 Mich. J. Int’l L. 1187, 1223 (2008), https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1452&context=facpub.
[xxvi] Diana J. Eitman, Maintaining Sovereignty and the Tropical Rainforests: The Promise of Debt-for-Nature Swaps, 24 Environs 29, 47 (2000—2001), https://environs.law.ucdavis.edu/volumes/24/2/articles/eitman.pdf.
[xxvii] Anna Jean Kaiser, Brazil environment chief accused of ‘war on NGOs’ as partnerships paused, The Guardian (Jan. 17, 2019, 2:30AM), https://www.theguardian.com/world/2019/jan/16/brazil-environment-chief-accused-of-war-on-ngos-as-partnerships-paused.