Brazil set to ignore Escazú agreement that protects environmental activists
In May it will be a decade since José Cláudio Ribeiro da Silva and his wife Maria do Espírito Santo were murdered by gunmen in Nova Ipixuna, in Brazil’s Pará state. Their work to build an ecological reserve to preserve the forest and provide a means of subsistence for its inhabitants made them the enemies of those keen to fell hundred-year-old trees to sell wood.
Today, Claudelice dos Santos, the sister of the activist José Claudio, is the one threatened. She continues the struggle of her dead relatives at the Zé Cláudio & Maria Institute.
"Especially in the last few months, we need to be very careful. It is as if there is no protection policy anymore," she said. "We are being pushed towards death."
Claudelice could be less vulnerable if the Brazilian government were to ratify an innovative international agreement on environmental affairs supported by Latin American and Caribbean countries. But there’s every sign it won’t.
The agreement is the opposite of what the government promotes
The Escazú Agreement will come into force on April 22 and will be celebrated by many across Latin America and the Caribbean. It reached the necessary number of backers after Argentina and Mexico ratified it at the United Nations in January.
The agreement is the first international treaty in the world to include a clause on the protection of human rights defenders.
Article 9 determines that each state "shall take appropriate, effective and timely measures to prevent, investigate and punish attacks, threats or intimidation that human rights defenders on environmental issues may suffer in the exercise of the rights contemplated in the agreement".
The agreement also includes the right to access to information, the right to public participation and the right to access to justice, and could have significant benefits for environmental governance and sustainability.
Brazil, in principle, already follows these commitments, and has already built an advanced institutional framework nationally for environmental protection, considered ahead of many worldwide. Yet, the agreement would improve existing norms and offer an opportunity for the country to improve implementation of current legislation, which today is very haphazard.
However, the agreement comes at a time when the environment is not a priority for President Jair Bolsonaro. After former President Michel Temer signed the agreement in 2018, the ratification of the agreement now depends on a discretionary act by Bolsonaro, who can send the document to Congress for assessment whenever he wants.
However, Bolsonaro’s government is dismantling the environmental protection norms and institutions built in recent decades. The result is record deforestation and wildfires.
"The agreement is the opposite of what the government promotes," said Gabrielle Alves, a researcher at the Cipó platform, an organisation dedicated to climate, governance and peacebuilding. "It is frightening what we are living through, and there is no improvement forecast."
Escazú and Brazil: Plans for more participation
The Escazú Agreement would allow Brazil to improve decades of good practice. One of the greatest Brazilian milestones in the area is Law 6.938 of 1981, instituted in the middle of the military dictatorship (1964-1985), which created a democratic model of participation, with mechanisms for activities such as licensing, impact assessment and zoning.
One of the first actions of the Bolsonaro government, as early as April 2019, was the so-called "revocation", a decree that abolished all federal government councils not secured by law, including the Brazilian Climate Change Forum, the National Biodiversity Commission and the National Forestry Commission.
Brazil's ranking in the most dangerous countries for environmental and land defenders, according to UK NGO Global Witness
What was left was the National Environment Council (Conama), guaranteed by the 1981 law. Even this had the number of its representatives reduced in July 2019, with membership dropping from 96 to 23, including civil society organisations and states. With this move, decision-making power became concentrated in the federal government and representatives of the industrial sector.
The improvements envisaged by Escazú include the obligation for public participation to take place at the early stages of projects with potential environmental impacts. At present, the public is generally only involved at the later stages, reducing the chances of changing what projects will look like. There are also other innovations, such as the duty of authorities to provide access to information in clear, non-technical terms.
"When there is participation, the norm becomes legitimate and has more chances of being adopted," said Adriana Ramos, from the Socio-environmental Institute (ISA). "The fact that Conama has always had representations from different segments made it possible to discuss legislation in a more appropriate way."
Escazú has a broader scope on access to information than current Brazilian legislation. The agreement makes it necessary for the public to have access to information on environmental risks contained in private enterprises that involve the use of public resources, services or goods.
It also reinforces “active transparency,” when the state seeks, on its own initiative, to disclose information on the environmental quality of goods and services.
Transparency and participation in decision making translate into "greater capacity to mediate, manage and agree on conflicts", explained Renato Morgado, from Transparency International Brazil. "This implies better calculation of construction costs and delays, and helps the investment process happen with predictability."
Violence against environmental defenders
The Escazú agreement’s greatest asset for Brazil would be increasing protection for human rights defenders and increasing their access to justice, said Rubens Born, who worked with the Grupo Esquel Brazil Foundation, which participated in the nine sessions that led to the signing of the pact.
Violence remains a very real threat to Brazilian human rights defenders and environmentalists. According to the NGO Global Witness, 24 activists were murdered in Brazil in 2019, ranking the country third in terms of activist killings worldwide and behind only Colombia (64) and the Philippines (43). According to the NGO, 90% of these assassinations in Brazil were in the Amazon, and the indigenous population is the most vulnerable.
"Ratification would oblige Brazil … to take timely measures to investigate and punish those who commit the crimes. With the agreement, these cases would not only be curbed, but investigated," said Born.
Hopes for Escazú in Brazil beyond the next election
Experts interviewed for this report agree that it is unlikely that the Bolsonaro government will ratify the agreement. According to Dort, all other Brazilian presidents since the end of the military dictatorship in 1985 would have done so.
"I have no doubt that if the president were different, the agreement would pass," Dort said. He added that he was hopeful Brazil’s parliamentarians would return to the subject of Escazú in 2023, after the next election.
Before then, the agreement can still have a positive impact on the country. Even if not in force, it can be cited in court cases.
"Although Brazil does not ratify it, the agreement serves as a grounding standard. It is not binding, but can be used as a source of law," said Silvia Capelli, a prosecutor for the Public Ministry of Rio Grande do Sul who specialises in the environment.
In fact, this already happened. In the Supreme Court on March 5, Justice Rosa Weber cited the agreement when voting on the unconstitutionality of Bolsonaro's move to reduce representation in Conama.
That trial is ongoing. Currently, four judges have voted to overturn Bolsonaro's stance, with no votes in favour.