THE DESTRUCTION OF THE BRAZILIAN AMAZON:
AN INTERNATIONAL PROBLEM
THE DESTRUCTION OF THE BRAZILIAN AMAZON: AN INTERNATIONAL PROBLEM
by Jacqueline Klosek
The massive industrialization that characterized the post- World War II era wreaked havoc on the global environment. Such harm has taken many different forms including air pollution, water pollution and deforestation. The environmental damage varies from region to region and from country to country. However, many forms of environmental harm have the ability and tendency to cross national borders and to harm neighboring or even distant states. Air pollution and climatic changes caused by environmental degradation are examples of this. Because environmental damage [*120] does not respect national borders, issues concerning the environment have become manifested in international relations and international law. This paper shall examine how the international community is dealing with one environmental problem that is of particularly grave concern: the degradation of the Brazilian Amazon.
During the late 1980s, the international community was preoccupied with the fate of the world's rainforests, including those in Brazil. Shocking photographs of widespread rainforest burning covered magazines throughout the country, motivating many individuals to pursue efforts to save the world's rainforests, including the Brazilian Amazon. In addition to prompting individual concern, such media exposure caused many governments to begin expressing interest in this issue, as evidenced in 1990 when the world's leaders gathered at a G7 meeting in Houston, Texas. At this meeting, the fate of the Amazon rainforest was placed at the top of the agenda. n1 Since then, both action and interest in the welfare of the Amazon rainforest seem to have somewhat subsided. n2 This is unfortunate since the problems facing the rainforest have not fully been solved, on the contrary, in many cases they have magnified and multiplied.
The damage to the Brazilian Amazon which occurred and which continues to occur can be traced back to both Brazilian policy and international action. Ill-planned and ill-managed development schemes have played a significant role in the development of the problems of the Amazon rainforest. Because of its vast land area, n3 sparse population and wealth of natural resources, the Amazon region of Brazil has long been an inviting target for grand development schemes. The Amazon region embodies both the short and long-term hopes of Brazil for everything from industrial and capital development, to the agricultural and land needs of a large [*121] population. Through tax benefits and other incentives directed at both the international and domestic communities, the Brazilian Government has sought to encourage the development of its land.
Brazilians rightfully recognize that they have the internal population and resources to grow into a powerful economic force, and they have been attempting to do so. Interior exploitation takes many forms, including agriculture, cattle ranching, mining, timber and hydro-electric projects. The scale of these projects has varied from gigantic endeavors by multinational corporations to smaller- scale attempts at development, such as subsistence farming by homesteaders.
The development plans, which have been encouraged by the Brazilian Government, were intended to benefit Brazil's perpetually struggling domestic economy, to alleviate a steadily increasing foreign debt, and to lessen pressures from the country's landless poor. However, attempts to carry out these development policies have had severe consequences on the environment and on human rights. One of the most important of these consequences has been the destruction of the Amazon rainforest. This consequence has been devastating to Brazil, but its effects extend far beyond Brazil's boundaries.
In order to encourage effective international response to this crisis, it is important to spread the message that a lot more than just the Brazilian rainforest is at stake. n4 Planetary resources and systems that affect all life are involved. Developed countries must now take a strong role in seeing that the rainforest is protected since they played a significant role in the degradation of the Amazon rainforest and since they will also feel the tragic results of its destruction. n5
This paper shall examine some of the ways in which the international community, and the developed nations in particular, can make a significant contribution to curtailing the continued destruction of the Brazilian Amazon and in rectifying the damage that has already been done. Part II of this paper will explore the numerous ways in which the Brazilian Amazon is being destroyed. This section will examine how activities such as cattle ranching, mining, timber production and development schemes are harming the deli [*122] cate environment of the Amazon. Part III will examine the direct effects of the destruction and degradation of the Brazilian Amazon. Many of these effects are already being felt not only in Brazil, but in other countries, and even regions, of the world. The effects of the destruction of the Amazon which will be examined are: environmental harm, loss of biological diversity, increased violence and human rights violations.
Part IV of this paper will examine the various current and prospective methods of protecting the Amazon. First, a study of Brazilian perspectives will be presented. In this section, both Brazilian statutory and constitutional law will be examined. Next, international initiatives will be discussed. This portion will commence with an explanation of how United States ("US") law is relevant to the issue and how it might help in solving the problems of the Amazon. International efforts, such as treaties and United Nations intervention, will be presented and analyzed, and various market- based incentives will be explored.
Part V presents a discussion of why it is in the interest of the US to work with Brazil in solving this problem. This section will emphasize that what is at stake in the Amazon is an international issue. Finally, Part VI will present some concluding remarks and observations.
II. An Examination of the Causes of Damage to the BrazilianAmazon
The current environmental problem in Brazil has numerous causes. The following section shall outline and highlight some of the primary bases behind the destruction of the Brazilian Amazon.
A. Cattle Ranching
One of the leading destructive forces in the Amazon rainforest is the clearing of rainforest land in order to create pastures for raising cattle to produce low cost meat. In Central and South America alone, millions of acres of tropical forest have been felled and cleared to make room to raise cattle. n6 Such schemes have not been carried out merely to provide food to the people of Brazil. Rather, in many cases, these plans were undertaken in order to provide a cheaper alternative for meat consumers from the Western world. n7 [*123] The great demand for low-priced beef in post-World War II Europe and the US spawned a strong interest in the land of Latin America. In the 1960s, with the assistance of loans from the World Bank and the Inter-Latin American Development Bank, governments throughout Central and South America began to convert millions of acres of tropical rainforest and cropland to pastureland to raise cattle for the international beef market. n8 In the six-year period between 1971 and 1977 alone, for example, over $ 3.5 billion in loans and technical assistance was pumped into Latin America to promote cattle production. n9
The effects of cattle raising in the Amazon have had a drastic effect on both the land and people of Brazil. Making large areas of land useful only for cattle raising increased the already complex battle for land which exists in the country. The struggles which have taken place between rubber tappers and cattle ranchers have been especially difficult. "Rubber tappers, unlike ranchers and miners, benefit from the rainforest without causing destruction." n10 Because of this, rubber tappers have been among the some of the most vocal opponents to rainforest destruction perpetrated by cattle ranchers and others. This, in turn, has often led to violent confrontations between the two groups.
Many Americans first became aware of this struggle for land in Brazil in the late 1980s when the American mass media reported on the assassination of Chico Mendes. Mendes, a Brazilian rubber tapper, was murdered by cattle ranchers in a dispute over the use of the rainforest. n11 Darli Alves de Silva and his son, Darci, were sentenced to nineteen years in prison for this murder. n12 The trial and conviction of these two individuals were virtually unprecedented in rural Brazil where violence, such as the type which befell Mendes, is endemic. n13
In addition to causing massive environmental destruction, cattle ranching is considered an inefficient way of using the land of the Amazon rainforest. For instance, in order to make $ 1 million a [*124] year from raising cattle in Amazonia, one would need to cut about thirty-eight square miles of forest, whereas, to make the equivalent amount of money out of marketing timber, one would only need to cut less than one square mile. If one chose to mine the land, a mere .006 square miles would be required to make the same amount of money. n14 Still, the burning of the rainforest is only part of the story. Commercial cattle ranching contributes to global warming as well. The highly mechanized cattle industry uses up a sizable amount of fossil fuel energy. n15 The energy used just to produce feed for cattle being raised as livestock represents a significant addition to carbon dioxide emissions. For instance, it takes the equivalent of a gallon of gasoline to produce one pound of grain fed beef. n16
At first glance, it might appear as if cattle ranching and its results on the environment are exclusively a domestic concern of Brazil. However, in many instances, it appears that the international community, particularly the Western nations, have encouraged and benefited from such farming. As a consequence, they must now share in the responsibility for the damage and play a role in rectifying the situation.
Mining is another lucrative but potentially problematic activity in the Brazilian rainforest. Deposits of manganese, aluminum, copper, iron, gold and natural gas have all been found in the Amazon. n17 Mining traditionally has been thought to be environmentally benign in comparison to some of the other forms of land use. However, there is still a severe down side to mining activity where the future of the Amazon is concerned. For instance, the production of gold has proven to be extremely dangerous because of the poisonous and mutagenic mercury that is used in its extraction. n18 Mining frequently results in large amounts of human waste and mercury running off into the rivers. This can be very damaging to [*125] people in the region, as well as to the products which are grown there.
C. Timber Industry
Given the large amounts of land cleared for highway construction, large-scale agriculture and settlement schemes, it might be supposed that lumbering activity would accompany such projects to make the most productive use of the resources. However, this is often not the case. Aside from the small amounts of timber cut and used locally for projects such as creating fencing, houses and barns, land clearing for agricultural purposes is largely accomplished by the slash-and-burn method. n19 Moreover, trees cut for highways are generally felled and left by the roadside to rot. n20
The primary reason for the waste of timber is that neither the Government nor the ranchers have been willing to invest the time or money necessary to cut and transport the vast timber resources in these areas. n21 Another significant part of the problem is that most of the Amazon forest species are not popular in the international or domestic markets. n22 Still, the lumbering that does occur has a relatively small impact on the forest compared to other uses. For instance, it is estimated that only four percent of Brazil's deforestation through the 1970s was caused by timber extraction. n23 The main reason for this is that traditional logging by individuals or small enterprises is quite compatible with rainforest survival.
Nevertheless, even logging can be extremely dangerous when it is undertaken on a large scale. A new and potentially disastrous development in the timber industry of Amazonia involves the purchasing of large amounts of rainforest by Asian logging companies. n24 Currently, twenty-five foreign logging companies own at least 20,000 square kilometers of land in Brazil's Amazon. n25 While Brazil has imposed a certain level of restriction on domestic logging, the development of the law regarding international restric [*126] tions has not been quite as progressive. Presently, Brazil places no restrictions on foreign companies wishing to buy land in the country. However, in response to this current crisis, the Environment Ministry is studying a series of legal measures to curtail the purchase of Amazon for logging purposes by foreign companies. n26 In addition, companies that wish to exploit timber have to submit a plan of sustainable exploitation to the Brazilian Environment Institute ("BEI"), which is supposed to review the plan and then approve or disapprove it. n27 Nonetheless, the BEI has claimed that it does not have sufficient staff and resources in order to fully inspect the plans which are submitted, and, as a result, many questionable plans end up going through. n28 It must also be noted that it is difficult to conceive of a program of timbering which truly leads to sustainable development. "Under current timber exploitation procedures, about 100 trees are felled for the commercial use of a single top quality tree like mahogany or cedar." n29
D. Effects of Development Schemes
Government-encouraged development plans have also contributed to the destruction of the Amazon rainforest. For years, the Government of Brazil has provided incentives to companies, mostly international, to develop Brazil. n30 Although these incentives were intended to benefit Brazil's struggling economy, they had devastating effects on Brazil's natural environment. While Brazil provided the incentives which caused the environmental damage, many other nations participated in the development schemes and benefited from them. As such, the international community which participated and benefited from these development plans should play a significant role in stopping the destruction from continuing and remedying the damage that was already caused.
The encouragement of development schemes in Brazil has a long history. One of the grandest of these schemes was a program called "Operation Amazonia," initiated by the Government in 1966. The project was designed to convert the Amazon rainforest into commercially productive land. n31 Through the program, the [*127] Government provided special tax incentives to encourage domestic and foreign corporations to invest in the Amazon region. Practically overnight, multinational companies flocked to the Brazilian interior, clearing the dense forest. American multinational companies, including Swift, Armour, Dow Chemical, United Brands, W.R. Grace, Gulf and Western, and International Foods, began investing heavily in the rainforest. n32 So did European and Japanese multinational firms, including Volkswagen and Mitusui. n33 All of these corporations rushed to take advantage of what was perceived as the last great land grab on the planet. Companies were given ample assistance from the World Bank, the Inter-American Development Bank, and the United States Agency for International Development ("USAID"), which were enthusiastic over the commercial prospects of creating a vast pastureland on the Amazon basin. n34
The Government created a new federal agency, Superintendency for Development of the Amazon ("SUDAM"), in conjunction with Operation Amazonia to stimulate and coordinate public and private sectors at Amazonian development. n35 In pursuit of the military's dual strategies of promoting rapid economic growth through import-substitution industrialization and encouraging immigration to frontier settlement areas, SUDAM administered an array of financial incentives including tax breaks, low-interest loans, direct subsidies and easy credit. n36 These were all part of a concerted effort to attract capital and settlers from foreign countries, as well as from other parts of Brazil.
Such development schemes have had a devastating effect on the Brazilian Amazon. These projects devalued long-term environmental costs and emphasized short-term economic and political gains. n37 Between 1966 and 1983, nearly 40,000 square miles of Amazon forest were cleared for commercial development. n38 The Brazilian Government estimated that thirty-eight percent of all the [*128] rainforest destroyed during that period was attributable to large- scale corporate developments. n39
Under Brazilian law, to gain title to public land in the Amazon, the land must first be cleared to demonstrate a serious commitment to settlement. n40 Multinational corporations often wait for peasant farmers to raze and burn forested areas before purchasing the cleared land for a nominal fee to use for commercial development. The felled timber is rarely marketed, as the colonists often find it more expedient to set it on fire. n41 Although this practice of providing inexpensive land, low-interest loans, and tax subsidies to foreign investors had been a frequent occurrence in Brazil, this policy ceased in 1979 after the Government had spent $ 391 million dollars to assist ranching projects. n42 In addition to causing environmental devastation, these projects have actually failed in their intended purpose of revitalizing the Brazilian domestic economy. They created little employment for the people of Brazil and were owned by foreign investors who milked profits and resources from the region, while providing very little in return. n43 Brazil cannot accept the sole blame for these development projects. In many instances, international lending bodies such as the World Bank, the Inter-American Development Bank and the USAID funded these massive development projects in many Latin American countries. n44 As such, the international community must share in the responsibility for the effects of such development schemes.
III. Direct Effects of the Destruction of the BrazilianAmazon
The following section will examine some of the effects of the destruction and devastation of the Amazon rainforest. Predictions about the possible future effects will also be presented.
A. Environmental Effects
The consequences of continued exploitation of the Brazilian rainforest are many and widespread. n45 The wealthy Amazon ecosystem is extremely fragile. Most Amazon soils are of extraordinarily low fertility. Nutrient matter is contained in the vegetation itself and is quickly recycled when dead branches and leaves fall off trees. If the layer of vegetation is destroyed, the thin layer of topsoil erodes and the ground becomes hard and incapable of supporting life. Attempts to restore the Amazon land once it has been degraded have proven expensive, difficult and inefficient. n46
Still, there are other losses which although not as easily quantifiable are, perhaps, even more dramatic. Tropical and temperate forests serve an important role in the global environment. They regulate climate and protect land and water resources. n47 Specifically, the Amazon rainforest has been described as one of the two great filters soaking up carbon dioxide, a gas which contributes to the "greenhouse effect" and leads to climate changes. n48 There have already been a number of predictions made about the possible dire consequences of increased global temperatures.
Experts identified the two primary causes of global warming as the burning of fossil fuels and deforestation. n49 The widespread removal of trees in areas such as the Amazon contributes to global warming in two main ways: first, the large-scale burning of forests, as a method of clearing land, releases large quantities of carbon dioxide into the atmosphere. n50 In addition, because trees absorb carbon dioxide through photosynthesis, large-scale deforestation serves to reduce one of the most significant and largest carbon dioxide storage units in the world. Furthermore, it is possible that global warming can lead to increased deforestation, which in turn can exasperate problems of global warming. Abrupt temperature [*130] changes could destroy forests at the high and middle latitudes, and the subsequent decay of these forests would release great amounts of carbon dioxide and methane into the atmosphere, thereby worsening the warming trend. n51
The potential results from this warming trend are unclear. The scientific community predicts that a two degree rise in world temperature will cause a melting of polar ice caps, which would raise the sea level twenty-three feet and put most coastal cities under water. Scientists expect that in the next decade, as a result of human activity, the climate of the earth will change, and the earth will be warmer than at any time during the last 120,000 years. n52 Regional rain patterns and temperatures are expected to be altered, resulting in agricultural disruption and increased frequency of extreme weather events. n53 Developing nations, such as Brazil, can ill afford the damage caused by such extreme activity because such events result in large-scale losses of life, property and the capacity to produce food. n54
Still, the greenhouse effect is only part of the story. The burning of the Amazon also impacts the health of the local people. When there is fire in the Amazon, winds can carry the smoke for hundreds of miles into the cities where people live and work. n55 One recent episode of burning, in late 1995, caused a surge in hospital patients reporting bronchial problems. n56 There was also an increase in automobile accidents which were a result, at least in part, of smoke-blinded drivers. n57
Animal and plant life may also be severely affected by global warming. Animals and plants have a difficult time adjusting to abrupt changes in climate. In general, major climatic changes have been gradual and have allowed species time to adjust. In contrast, abrupt climatic changes might cause indirect effects, such as increased outbreaks of fire and a change in the population of pest insects and microorganisms. In addition, animal and plant species [*131] would have to contend with increased heat and changes in soil composition, rainfall patterns and sea levels. n58
B. Loss of Biological Diversity
Another serious problem associated with the destruction of the Amazon rainforest is the loss of biological diversity. The Amazon rainforest is an immensely rich source of genetic variety. In fact, the Amazon has greater biological diversity than any other region in the world. n59 In any given hectare, up to 300 species of plants with stalks or trunks measuring more than 10 centimeters in diameter can be found, and more than 3,000 plants with medicinal properties or apt for industrial uses or food have been identified. n60
Many species of animals and plants may exist in the rainforest which we do not yet know about. New species are constantly being discovered. For instance, in June of 1996 a new species of monkey was found in the rainforest of Brazil. This newly discovered monkey was given the Latin name Callithrix Saterei, after the Satere tribe on whose land the monkey lives, n61 and was nicknamed "Zip" by the local people because of its size and speed. This discovery has shown "how nature still had much more to reveal." n62 It underlines the importance of immediate action to preserve the environment of the Amazon, as we do not know what else lies within its borders. It is essential to emphasize that the discovery of Zip is not an extremely rare occurrence. Indeed, Zip represents the sixth new primate to be discovered in Brazil in the past six years. n63 This makes it all the more plausible that there are other unknown animals and plants waiting to be discovered.
Scientists believe that one-half of one percent of rainforest species are disappearing each year, a figure equal to approximately 50,000 species per year. n64 By permitting the Amazon rainforest to be destroyed, we are losing priceless biological resources before we [*132] ever get the chance to find out what they are and learn how we might use them. Currently, numerous pharmaceutical products are derived from rainforest products, and it is likely that more remain to be discovered. n65 There are old discoveries like Quinine, Curare and Ipecuanha and new discoveries such as the powerful hypertension medicine, Capoten, which is derived from the venom of the Brazilian pit viper. n66 For all we know, the forest holds the answer to cancer, AIDS, or perhaps some new disease that has not even struck yet. If deforestation continues at the pace that it is, we may never find those answers.
Technological advances may mean that scientists will be able to unlock the secrets of plant-based remedies to turn them into effective medicines or as a basis for developing new synthetic drugs. Scientists now estimate that the jungle is home to over 100,000 different plant species, only a fraction of which are known. n67 But some 15,000 square miles of forest, land the size of a football field, disappears every five seconds. n68 A simple plan of conservation alone will not cure this problem either. Scientists have learned that the amount of land conserved does not directly correlate with the amount of biodiversity preserved. n69 To reduce the influence of non-native ecosystems, buffers must be established around protected areas, and protected areas must be large enough in size to ensure ecosystem viability. n70
The Amazon rainforest is also home to other useful biological resources. For instance, researchers have discovered a variety of fruits remarkably high in vitamins and proteins as well as scores of others that offer exotic flavors found nowhere else in the world. n71
Some scientists also speculate that continued disruption of the natural balance within the rainforest can have profound effects on [*133] the spread of HIV and other similar retroviruses. Retroviruses, such as HIV, have the ability of reproducing sexually and thereby producing recombinant offspring that have completely new characteristics - often ones which make them more hardy and better equipped for competing with a hostile world. Several notable researchers, such as Japp Goudsmit of the University of Amsterdam, have warned that there is a reservoir of microbes in monkeys and other rainforest animals. n72 If we continue to disturb and alter the environments of these animals, these microbes might be capable of posing an even greater threat than the current HIV and AIDS crises.
C. Contribution to Rural Violence
An additional reason for the destruction of the Amazon rainforest is the political pressure that is felt by a variety of Brazilian governments to stake out a stronger and more defensible claim to this resource-rich, but sparsely inhabited region. n73 Given the size and low population density of the region, laws pertaining to the ownership of land are rarely enforced. The Brazilian judicial system has completely failed to cope with and deter violence directed at rural workers, land peasants, activists and those linked in the struggle for land. n74 Large landowners reject any governmental interference in their use of land, resulting in the degradation of human rights, as well as of the environment. n75
According to the Pastoral Land Commission, 1,681 rural workers and others involved in land use issues have been murdered since January 1, 1964. There have been trials in only 26 of these cases. Of those, only 15 have resulted in the conviction of any defendants. In the rural struggle, the poor must confront not only large landowners, ranchers and their gunmen, and the social elite, but also the hostility of the courts, which often act much more quickly in defense of property owners. n76
One of the only ways that big landowners can hold onto what they have is through fear of assassination, deliberately propagated [*134] by professional gunmen using threats, beatings and intimidation. n77 Since 1980, there have been well over 1000 land-related killings in Brazil. n78 Violence has also erupted in cases in which the police attempted to silence protesters demonstrating against the country's land distribution methods. For instance, in April 1996, during a clash between police and families seeking land in which to farm, the police opened fire and killed nineteen people. n79 In this instance, the police were sent to clear a highway which various landless families occupied for approximately two days. The confrontation which ensued between the police and the protesters was filmed by a local television station, and it was later determined that the video footage contrasted with official reports. n80 Significantly, the film showed police officers firing their machine guns into the air as they arrived on the scene. The film also showed that as the demonstrators advanced towards police, some of them throwing stones, the police officers began to fire directly at them. n81
Following the massacre, President Fernando Henrique Cardoso strongly criticized the actions of the police and announced that federal troops would soon be deployed in order to protect homesteaders. He also pledged that the police involved in this latest incident would be brought to justice. n82 While this sounds promising, none of the individuals who were involved in a similar incident in August of 1995 were brought to justice. This may be due, at least in part, to the problems with the administration of justice in the country. "In recent times, the Brazilian judicial branch has been the target of severe criticism, claiming that it has become delinquent and affected by certain vices such as nepotism and/or corporatism." n83
In addition, there is considerable concern that the deteriorating environmental conditions in Brazil will lead to increased violence that may become so severe that Brazil will become largely ungovernable. In the views of individuals such as noted professor Thomas Fraser Homer Dixon, future conflicts and civil violence will often arise due to the scarcity of natural resources, such as [*135] water, land, and food. It also has been suggested that the countries most likely to experience environmental-related violence in the coming years are those that are already threatened by a declining resource base and an inequitable distribution of resources, like Brazil. n84
D. Human Rights Violations
There is a growing tendency in the international human rights community to link environmental quality with human rights and to recognize a number of rights violations caused by the impact of environmental destruction on people around the globe. n85 This applies to the current situation in Brazil, where, as the environment of the Amazon is devastated, so are the rights of the native people who reside there. In addition to millions of species of plants and animals, the Amazon supports indigenous human cultures. These native cultures of Amazonia are being decimated by the struggle for land. When European explorers first arrived in Amazonia, there were hundreds of independent Indian cultures and somewhere between three and five million Indians scattered throughout the immense forest. n86 Since then, the Indian population has suffered a drastic decline. In more recent times the problems seem to have compounded. The issue for Indians is harsh but simple: extinction or integration. They face extinction because their lands are coveted by so many others in the area. Those Indians who do not die from starvation or disease are often forced to migrate to overcrowded cities where they join the ranks of the destitute and unemployed.
Many of the native people of the Amazon have expressed frustration with outsiders interfering with and destroying their homelands. Chief Tamakurale of the Parakona Indians, a tribe which lives beside a tributary of the Amazon in the State of Para, tells a typical tale:
We do not want the loggers on our lands. They give us diseases, they kill the forest animals and take turtles from the river so we have nothing to eat. They cut down the trees. If the trees go, some of our children may survive, but they will not be Parakana. n87
Generally, the native people live in the forest without destroying it. In many cases, the environmental conditions of the Indian reservations are better than those areas under the protection of the government environmental agencies. n88 Despite this, Indian reservations are not free from environmental destruction. The US activist group, Rainforest Action Network, claims that the demand for mahogany coffins and furniture by rich nations is responsible for the illegal invasion of Indian reserves in Amazonia by loggers who have already cleared most of the available timber elsewhere. n89
Sadly, the situation for the natives of Amazonia does not appear likely to improve. In early January 1996, Brazil rewrote the rules for creating reservations while attempting to resolve a dispute between business and natives over land. n90 The new decree gives loggers, miners, farmers and businesspeople the right to challenge the size and shape of more than 300 indigenous reserves that sprawl across Brazil. n91 It is speculated that the decree will clear the way for companies seeking to expand their mining, logging, ranching and other activities into Indian lands in the Amazon. Just a few days after the decree was entered, a huge agricultural company filed the first challenge, and many more are expected to follow. n92
Another factor greatly affecting the native populations of the Amazonian rainforest is the quest for gold. While the search for gold began some time ago the magnitude of the search exploded and has appeared to become more dangerous in recent years. This latest invasion of armed gold-diggers began in the summer of 1996. "At least 70,000 armed gold-diggers have ... invaded an Amazon [*137] rainforest reserve inhabited by the Yanomami, the biggest surviving indigenous tribe in South America, threatening to kill those who stand in the way of their hunt for riches." n93 These miners are acting in violation of Brazilian law which prohibits mining and timber logging on regions demarcated as Indian lands by the Government. n94 Many Yanomami people have already been killed in violent clashes with the miners. In an attempt to alleviate the problems of the region, the Brazilian Government offered the miners a considerable sum of approximately five million dollars to abandon the area and forget about their quest for gold. However, the Government has claimed that it is "an almost impossible task to police a remote jungle area" n95 such as the Amazon.
IV. Methods of Protecting the Amazon
A. Brazilian Initiatives
1. An Overview of Environmental ProtectionAttempts
Environmental protection laws in Brazil date back to the 1940s. These laws of the 1940s often lacked the support of agencies able to enforce and implement them. With the advent of military law and the increased pressure for rapid economic growth, laws to protect the environment were given very little backing. Brazil's official attitude towards environmentalism in the 1940s was one of resistance to a perceived plot by rich nations to keep the poor from developing. The general attitude by Brazilian officials towards countries of the Western world was "you've had your chance to pollute and develop and we must have ours." n96
In more recent years, the Brazilian Government has taken greater steps to solve the land use dilemma and save the rainforest. Brazil has also made more ambitious efforts to regulate the taking of various components of the rainforest. In August 1996, President Cardoso announced new measures to save the forests of Amazonia. According to the new decrees, a two-year moratorium [*138] will be imposed on felling mahogany and virola - two of the region's most important tropical hardwood trees. n97
However, in addition to merely restricting the use of certain products of the forest, Brazil needs to find new ways of bolstering income through the rainforest without harming the forest. Biotechnology is one promising method of sustainable development. Biotechnology firms are entering agreements with developing nations in order to gain access to their genetic resources. These arrangements could prove lucrative to Brazil and other developing nations, especially if they are coupled with royalty agreements. n98
Other possible methods of sustainable development include looking for new jungle products such as medicinal plants and natural vegetable oils, balms for the Amazon economy. Presently, tropical forests, such as the Amazon, are important sources of natural products which are used in industry, including gums, oils, latex, resin and a variety of natural fibers. The forest also produces food products such as tapioca, cocoa, pineapple, Brazil nuts, cashews, passion fruit, as well as more exotic fruits, such as the "cocona." Sustainable development means investing in both small factories that process produce in the forest and activities ranging from eco- tourism to alligator ranches to heart-of-palm plantations.
These are just several ways that Brazilian law can respond to the Amazon problem. In order to be effective, however, such laws will actually have to be implemented and effectively enforced. Brazil already has the embryonic structure to police the Amazon - the conservation bodies, the maps of intended national parks, the environmental laws, and the research centers. What it lacks is the cash and expertise necessary to do the job. n99 Since Brazil and other developing nations have little or no industrial infrastructure, they depend on their natural resources as both a source of immediate food and shelter and future long-term, economic growth. The [*139] destruction of those resources for short-term gain serves only to perpetuate the poverty-environmental degradation cycle. n100
Legislation aimed at environmental protection is not foreign to Brazil. Nor is Brazil bereft of governmental organizations responsible for the protection of the environment, and particularly the preservation of the rainforest. n101 On balance, however, Brazilian law has proven remarkably ineffectual as an instrument of rainforest conservation. Although the constitutional status of the region gives some cause for hope, the continuing attempts by those in power to develop and integrate the region, along with the limited budgets of governmental environmental agencies charged with the protection of the forest, suggest that deforestation will continue on a frighteningly rapid course.
In recent times, Brazil exhibited a more concerted effort to push forth legislation which takes greater aim at protecting the unique environment of the rainforest. In July, 1996, Brazil announced that it will stop granting new permits for the logging of mahogany and other valuable hardwoods in the Amazon. The new legislation also reduced the dimensions of the region assigned to forestry concessions. n102 The crux of the new legislation - which applies to the entire region of Amazonia - is the provision which lowers the intensity of logging operations. "While loggers have been allowed to clear-cut up to 50 percent of the surface area of their properties under previous laws, that limit will now be reduced to 20 percent." n103 To ensure compliance, Brazil announced that it will spend $ 27 million on satellite and various ground-monitoring mechanisms during the years of 1996 and 1997. n104
2. The Brazilian Constitution
Guidance in dealing with the problem of the Amazon can also be found in the Brazilian constitution. In recent times, the international drive to protect the rainforest of Brazil has become so strong that it has encouraged rather momentous changes within the legal system of Brazil. On May, 25, 1988, the Brazilian Constitutional [*140] Assembly adopted an entirely new chapter on protection of the environment. n105 The chapter begins with article 225, which declares that "everyone has the right to an ecologically balanced environment for the common welfare of the people." n106 The public power is charged with preserving and restoring essential ecological processes and the country's biodiversity. n107 It is also responsible for controlling the production and employment of techniques and substances that pose a risk to life and the environment. n108 This article attempts to ensure that those using the environment for gain must respect the environment and preserve its integrity. n109
While it is promising that environmental issues have received prominence in the Brazilian constitution, this does not appear to be sufficient to solve the problem. The constitution may contain numerous provisions on the environment, but if they are not consistently applied they are virtually useless. Moreover, laws alone, no matter how weighty, are unlikely to solve the complex problem of the Amazon rainforest. Still, the inclusion of environmental principles in the constitution does serve to emphasize the growing importance of environmental protection in Brazil.
B. International Initiatives
1. United States Efforts
Despite some criticism of the environmental activities of the US, it has been an important player in the development of international environmental law. International environmental issues have even been a subject of US foreign policy. n110 Where the destruction of the Brazilian Amazon is concerned, there are a number of different ways in which the laws of the US might be used either to stop the destruction or to provide means of remedying the condition. This section will examine some of the ways in which US law and policy might be used in solving the problem of the Brazilian Amazon.
[*141] There are several US laws which attempt to regulate the manner in which the US exploits the national resources of countries. The primary basis for such power rests in the US Constitution. There are several constitutional provisions which are relevant to understanding the role of the US in international environmental law. First, the Constitution grants Congress the power to regulate international commerce. n111 It also gives the power to "punish ... Offenses against the Law of Nations." n112 Also relevant is the power to ratify international treaties. n113 In terms of the Brazilian Amazon, these powers have been used on a number of occasions. For instance, the US Senate has ratified international treaties which aim to protect the environment. n114 In addition, pursuant to the international commerce clause power, Congress has passed legislation discouraging the funding of deforestation through foreign aid expenditures. n115
As the concern about the destruction of the world's rainforests developed, it was discovered that US foreign aid to Brazil and other South American countries funded projects that required cutting down trees in the Amazon jungle. Growing awareness that deforestation causes global warming, among other problems, has prompted Congress to restrict foreign aid used for such purposes. n116 The passage of the Foreign Assistance Act of 1986, and, specifically, the section on tropical forests, n117 was designed to prevent the US from participating in acts which destroy rainforests such as the Brazilian Amazon. The section of the law on tropical forests indicates a list of activities which should be undertaken by the US Government. Among these are the following: support training programs and educational efforts which increase the capacity of developing countries to improve the management of their [*142] forests; n118 help end slash and burn agriculture by supporting stable and productive farming practices; n119 help conserve forests which had not yet been degraded; n120 support projects and activities to conserve forested watersheds and rehabilitate those that had been deforested; n121 support training, research and other activities that lead to more environmentally sound practices for timber harvesting, removal and processing; n122 to support research and to expand knowledge of tropical forests and identify alternatives that will prevent forest destruction; n123 and conserve biological diversity. n124
In addition to encouraging certain projects and activities, this section of the law also encourages the President to deny foreign assistance for certain projects which have the propensity of destroying tropical forests. Specifically, the law asserts that foreign assistance should be denied when it is to be used for the procurement of logging equipment, unless certain exceptions exist. n125 It also prohibits foreign assistance for actions which significantly degrade national parks or similarly protected areas, n126 for colonization of forest lands, dam construction and road building projects in forests, and for the conversion of forest lands to cattle ranches. n127 The Act contains exceptions for activities that directly improve the livelihood of the rural poor and support sustainable development if these activities are conducted in an "environmentally sound manner." n128
As such, it is clear that the US law contains very detailed provisions concerning its role in protecting and rehabilitating rainforests such as the Brazilian Amazon. In many ways, the law of the US seeks to limit the role of the US in contributing to further damage of the world's rainforests. Quite significantly, such laws also aim to encourage the US to engage in activities which will [*143] help developing countries to manage better the development so as to reduce the possible damage to such rainforests. While the laws do exist, applying them consistently and correctly appears to be more problematic. In addition, even if the laws were used correctly, it is not likely that actions of the US alone would be sufficient in preventing further damage to the forest and rehabilitating the existing forest.
In addition to laws which encourage the US to assist in the salvation of the rainforest and to dissuade it from damaging the rainforest, there are other US laws which seek to impose liability where damage is caused to the US environment through the acts or omissions of third party states. As such, US law also provides guidance on how Brazil might be held culpable for its own role in creating and/or permitting damage to occur to its own environment and, in the course thereof, to the environment of the US. Section 601, 1(b) of the Restatement (Third) of the Foreign Relations Law of the United States provides that:
(1) A state is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control
(b) are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction. n129
As such, if the US suffers significant environmental injury as a result of the actions of Brazil, it might seek to impose liability on Brazil. Nonetheless, despite the clear language of the statute, such an undertaking would likely be a formidable task. As is indicated in subsection (1), a state is only obligated to act "to the extent practicable under the circumstances." n130 Given the complications of the environmental situation in Brazil, it is likely that, if faced with a suit from the US, the country would be able to allege that it did act to the extent practicable under the circumstances. Brazil would likely be able to argue that given the country's level of development and great needs, it has done all that was practicable under the circumstances to preserve the environment. Should it be found, however, that Brazil did not act to the extent practicable under the circumstances, the US might be able to seek to impose liability under subsection (3) of this same statute. The law states: "A state [*144] is responsible for any significant injury, resulting from a violation of its obligations under subsection (1), to the environment of another state or to its property, or to persons or property within that state's territory or under its jurisdiction or control." n131
Thus, once the US passed the first hurdle in showing that Brazil failed to act to the extent practicable under the circumstances to prevent activities occurring within its jurisdiction and/or under its control, it would still have to show that the US suffered a significant injury as a result of Brazil's actions or its failure to act. If this was done successfully, then the US might be able to seek compensation from Brazil for the significant injuries that have resulted to the environment in the US. Nonetheless, proving the actual connection between the destruction of the Brazilian Amazon and a significant injury in the US may also be an exceedingly difficult task. Things such a climatic changes and deterioration of air quality are often difficult to quantify and attach to one particular source of causation.
2. International Cooperation and Intervention
a. Treaties and Agreements
International law has progressed to the point in which it has gone beyond cases where shared resources, such as Antarctica or the high seas, are involved and more general rules have been developed. The first major thrust in this development came from the Conference on the Human Environment, held in Stockholm in 1972, which adopted the Stockholm Declaration on the Human Environment as well as a plan of action. n132 This, in turn, led to the adoption by the United Nations General Assembly of the United Nations Environment Program, with an inter-governmental governing council and an environmental fund. n133 These programs have been implemented and expanded upon by a number of multilateral conventions and treaties.
One of the most positive signs of international cooperation in this region arose in connection with the United Nations Conference on Environment and Development, or, as it is more com [*145] monly known, the Earth Summit, which met in Rio de Janeiro in June 1992. Five main documents were adopted by governments at the Earth Summit. On June 5, 1992, the Convention on Biological Diversity was introduced for signature at the Earth Summit. n134 The Convention's explicit objectives are to conserve the earth's biological diversity for future generations and to exploit this diversity in a fair and equitable manner. n135
The Rio Declaration on Environment and Development was also considered and adopted during the meeting of the Earth Summit. n136 This document states a number of basic principles regarding sustainable development. Among these principles are that states hold sovereign rights over their own natural resources, n137 and rates of development should not exceed the capacity of the earth to renew itself, nor prejudice its future capacity to do so. n138
During this time, the Climate Convention n139 was also adopted by many governments. This convention was able to achieve a consensus on a general agreement to reduce carbon emissions. However, the Climate Convention stopped short of actually setting levels and timetables. As such, its basic purpose appears to emphasize the principle that actions of environmental damage which lead to climate changes should be avoided. In addition, it is also difficult to apply this Convention directly to the climate changes caused by Amazonian deforestation.
The Statement of Forest Principles ("Forest Principles") n140 was also adopted during this meeting. In terms of the deforestation of the Brazilian rainforest, this document appears to be of the greatest promise. This document states forty-three basic principles regarding the use of the worlds' forests. Basically, it asserts that nations have sovereign rights to exploit their forests, but that they should use proper management techniques. The principles aim to [*146] state what must be done in order to combat deforestation and conserve resources.
Upon their adoption, the Forest Principles were heralded as being of potential use in curtailing deforestation in places such as the Amazon. Clearly, many of the Forest Principles are directly applicable to the situation in the Brazilian Amazon. For instance, Principle 13(e) addresses the development schemes which have been particularly damaging in Brazil. n141 Principle 13(e) states that "fiscal, trade, industrial, transportation and other policies and practices that may lead to forest degradation should be avoided." n142 Such a principle seems directly targeted at the harmful state-encouraged development schemes which have harmed the Amazon.
The Forest Principles also emphasize the value of the forests to the regions in which they grow, as well as to the world in general. Principle 4 states that forests are important in "protecting fragile ecosystems, watersheds and freshwater resources and as rich storehouses of biodiversity and biological resources and sources of genetic material for biotechnology products, as well as photosynthesis." n143 This is an important statement which serves to emphasize the numerous ways in which forests benefit the world. This is a principle which needs to be widely accepted by the international community before international cooperation to save the rainforest will be forthcoming.
Other principles, however, do not appear to be quite as useful in working to save forests such as the Amazon. In fact, some principles, such as Principle 2(a), seem to contradict other principles as well as the very goal of forest conservation. Principle 2(a) clearly provides that "States have the sovereign and inalienable right to utilize, manage and develop their forest in accordance with the development needs and level of socio-economic development." n144 Such a principle tends to suggest that developing countries, such as Brazil, have the right to exploit their forests to a greater extent being that their development needs are great and their levels of socioeconomic development are relatively low. Nonetheless, Principle 2(a) does provided that a state's development policies should be "consistent with sustainable development and legislation." n145
[*147] The Forest Principles also emphasize that the international community must participate in the conservation of forests, particularly those in developing countries. Principle 1(b) states that the agreed full incremental costs associated with forest conservation and sustainable development require increased international cooperation and should be shared equitably by the international community. n146 In addition, Principle 8(c) states that national efforts at forest conservation "should be supported by international, financial and technical cooperation." n147 These principles emphasize that the international community has an obligation in participating in saving forests such as the Amazon.
While there is a certain value to the Forest Principles, they are insufficient from the point of view that they are not legally binding. As non-legally binding statements, they lack mechanisms to ensure that participants will properly implement the principles. There are no enforcement mechanisms, either in terms of incentives or sanctions to encourage participation and implementation. However, even though they are non-binding, the Forest Principles should contribute to the conservation of forests. The agreement and adoption of these principles, after all, called international attention to this very important issue. They may also be used to place external pressure on countries, such as Brazil, in which tropical forests grow. Such international pressure might be able to make a positive contribution to desired policy changes.
The final document adopted during Rio was Agenda 21. n148 This document contained a blueprint for action on all areas of activity relating to sustainable development. In doing so, it pointed out many of the connections between environmental matters and other means of well-being. While stating important principles relating to the preservation of the natural environment, the document was too vague and lacking in adequate enforcement mechanisms to be of substantial use.
In addition to the work of the Earth Summit, other significant international agreements may provide some protection for the Amazon rainforest. For instance, it is possible that certain compo [*148] nents of the rainforest can be protected under the Convention on International Trade in Endangered Species ("CITES"). n149 In 1994, Brazil blocked international agreement on the regulation of trade in the wood of mahogany trees under the CITES agreement. However, in August 1995, Brazil announced its own two-year moratorium on the felling of mahogany and virola. n150 The issue of the international regulation of mahogany will arise again at the next meeting of the CITES Convention, and, given the recent moratorium of Brazil, it is possible that the country will no longer be interested in blocking international agreement on the regulation of these valuable trees. A CITES listing would still permit international mahogany trade but would require scientists to confirm that a shipment has not caused damage to the rainforest before it was allowed into the marketplace.
b. United Nations Intervention
United Nations involvement in the Amazon region is another possibility. Certain military affairs experts see the Amazon region as the most vulnerable part of Brazil's national territory and defend the idea of conducting actions by the armed forces in the region in order to safeguard sovereignty. n151 Two situations have been identified which might require United Nations intervention in the region. The first is to ensure the preservation of the Amazon rainforest, under the premise that its destruction would harm humankind. n152 The second is to declare independence for the "Yanomami Nation," which would be recognized by the United Nations as a 9m-hectare country where the indigenous reservation is situated. n153
C. Market-Based Incentives
Despite the promise of certain international efforts, solutions to the Amazonian crisis that depend on the guidance or sanction of international law seem unlikely to succeed on any significant level. [*149] Ultimately, solutions depend on Brazil's willingness to abide by them as well as on Brazil's ability to enforce compliance among Amazonian settlers and investors. There is little reason to believe that Brazil, with its great emphasis on sovereignty over Amazonia, will apply externally imposed environmental law where it has been unable or unwilling to use its own. There is also a great problem with differing perceptions. For example, whereas developed nations generally perceive environmental problems as threats to health or aesthetic beauty, developing nations perceive environmental problems as threats to basic human existence, survival and advancement. n154 As such, alternative means of harnessing international participation to protect the Amazon will have to be sought out.
A promising strategy is the use of financial incentives to protect the environment. Financial incentives encourage world concern for Amazonia's ecological well-being and further Brazil's concern for the immediate needs of its domestic economy. Since the mid-1970s, many developing countries have been experiencing a debt crisis. n155 Today, in an attempt to settle the debt, developing countries "borrow" from their natural resources by employing indiscriminate short-term solutions designed to increase export profits. n156 One proposal is to assist developing countries with their debt problems in order to prevent these countries from exploiting their own resources. While the policy of providing financial incentives to encourage rainforest preservation in Brazil is not a novel one, such an initiative has not been fully developed or even explored within the context of the Brazilian Amazon - a place in which such a scheme may have a great deal of promise. There are many different ways in which such market-based incentives may be carried out in order to assist Brazil in preserving the Amazon.
Another alternative would be to create an international tropical moist forest reserve (of which the Brazilian Amazon would be a major part). Such a plan would involve an annual progressive tax on all developed nations that have per capita gross national products in excess of a certain amount per year and do not posses tropical moist forests. Under such a scheme, a large revenue pool could [*150] be administered by an international organization. The organization would make payments to forested nations, like Brazil, that place tracts of forest in reserve. The amount of payment would depend on the amount of forest that the country put under protection. Regular inspections by fund administrators would ensure that the area was maintained in a specified condition. Excess funds could be used for other compatible purposes such as establishing agricultural programs in suitable areas so as to ease pressure on the forests. Disbursements would be curtailed if inspection revealed that specifications for reserve maintenance and management were not being met. In effect, the nation would be paid to act as custodian of the rainforest.
This is an ambitious, perhaps, ideal proposal, especially where the particularities of the Brazilian Amazon are concerned. In light of the country's historic fears that the Amazon will be "internationalized," even voluntary participation in a program that could provide great amounts of foreign aid in exchange for setting aside a large portion of the Amazon may be too threatening to Brazilian sovereignty for popular acceptance. n157
Environmental negotiations are often mired in disputes between rich nations, which want certain global resources such as rainforests protected, and the poor nations, which want economic development. Poor nations often lay global troubles at the door of the rich and insist that if rich nations want to mitigate the damage they have done by, for instance, preserving rainforests, they must stand the bill. In the case of the Amazon rainforest, the rich countries have conceded that the rest of the world has an interest and a duty to invest in saving it. Preservation of biodiversity, reduction in carbon emissions and new knowledge about sustainable activities in tropical rainforests represent benefits that are global in scope and justify financial transfers from the international community to Brazil. n158
Developing countries traditionally have been sensitive to criticism from rich nations that they are not doing enough to protect wildlife areas such as the vast Amazon rainforest. Third World leaders have said that countries like the US are the worst polluters and must do more to pay for clean-up. n159 Still, there are many ad [*151] vantages to attempting even a scaled-down variant of such a scheme. Foreign aid slated specifically for forest preservation avoids the domestic political constraints that are involved when limited resources are devoted to long-run preservation rather than more immediate social welfare needs. Enforcement would be financially possible because, without enforcement, the money would disappear. Moreover, this scheme offers a direct positive incentive to forest preservation. Also, implementing such a scheme would not require Brazil to abandon all use of the forest's vast resources. While the most ecologically sensitive areas of the forest might become off-limits under this program, other areas more suitable for colonization or exploitation could be omitted from the reserves and developed in accordance with environmentally sound planning. n160
Another solution, with some of the same advantages of international funding for environmental preservation, is to have multinational and private international banks give developing countries like Brazil credits against their international debt for making domestic investments in conservation and natural resource management. Although a debtor country may not be able (or in some cases willing) to pay its foreign currency debts on time in the right foreign currency, it may be willing to offer its creditors something of value in exchange for voluntarily canceling these foreign currency debts. n161 When the "thing of value" is the preservation of natural resources, the program is called a debt-for-nature swap.
Debt-for-nature swaps are mechanisms which require developing countries, through their own environmental organizations, to set aside conservation easements to be used only for sustainable development projects. n162 In exchange, portions of developing countries' debt are canceled. n163 By protecting land for the benefit of current and future generations, the swaps promote long-term solutions to developing countries' debilitating environmental and economic problems. n164
[*152] Supporters argue that debt-for-nature swaps, by avoiding foreign ownership of land, provide a better alternative to the more traditional, debt-for-equity swap. n165 However, even though debt- for-nature swaps do not directly result in external dominance through foreign ownership, the problem of foreign control remains. Thus, it can be argued that debt-for-nature swaps do not avoid sovereignty problems, but simply mask them by avoiding express foreign land control. Another problem with debt-for-nature swaps is their neglect of the indigenous groups of developing countries. Negotiations for debt-for-nature swaps usually involve four major parties: the international conservation organization, the developing country's conservation organization and the creditor bank. n166 The fourth interest group, indigenous groups, is conspicuously ignored in the debt-for-nature swap process. Because the homelands and ways of life of indigenous groups are threatened by deforestation, they too have a stake in conservation efforts and are important parties to debt-for-nature swap transactions.
Although debt-for-nature swaps are not without criticism, they still represent one of the few types of Latin American debt transactions in which all participants can rightfully claim benefits. The conservation groups are able to establish or finance conservation projects at a favorable cost. n167 The debtor countries can reduce their external debt service burdens while supporting public interest programs. n168 Commercial banks willing to assist such transactions, either by providing free financial advice or by donating debt, can obtain favorable publicity and tax benefits. n169
Of course, any of these proposals can only have a slight effect on Brazil's outstanding debt. Brazil is the Third World's largest debtor, owing nearly $ 115 billion. n170 Whether or not complex financing mechanisms can have even a small impact on deforestation in Brazil will ultimately depend on how the Brazilian Government responds to the two crucial elements of such schemes: the incentive of debt reduction and the requirement that the Government set aside reserves or implement other conservation strategies. It has [*153] been suggested that Brazil is not likely to invest many financial or political resources to protect the rainforest; exploitation represents the country's greatest potential for development and economic enrichment. n171 Moreover, debt reduction alone will not provide Brazil with the funds it needs to implement measures to protect the environment. Subtracting a debt from the country's fiscal accounting records may cause Brazil to add acreage to its ledger of protected reserves, but it will not finance the management, planning, and policing needed to maintain the area and enforce protected status.
As with any other plans for saving the Amazon, Brazil's particular sensitivity to foreign influence in that region requires some attention. International conservation groups proposing debt-for nature swaps must work closely with domestic organizations to plan and monitor compliance with such agreements.
The nationalistic concerns of developed nations that tend to dominate international environmental law are also cause for alarm. These nationalistic concerns are most apparent in what has been called the North-South Debate, n172 which pits the interests of developed nations against those of developing nations.
These concerns override debt-for-nature swaps, as well as other programs of intervention. Fears of "eco-colonialism," the fear that industrialized countries seek to control developing countries, politically pervade developing country governments. n173 Developing countries fear that debt servicing techniques, debt-for- nature swaps included, jeopardize their progress toward democracy. n174 They argue that since industrialized countries exploit their own natural resources for economic gain, developing countries should not be precluded from doing the same. n175
V. Why the United States Must AssistBrazil
Moral, legal, n176 and humanitarian concerns require that the US and other developed nations step in and help protect the earth's resources for future generations and prevent the catastrophic economic and social effects of severe environmental degradation. A myopic view of the world environment might conclude that developed nations have neither a need nor a responsibility to address the problems of developing nations. This is not the case. The effects of environmental devastation know no boundaries. The effects will not be contained in the country from which they originate.
In the past, developing nations took action towards protecting the environment and natural resources. For instance, in October of 1995, the US and Brazil signed an agreement that will lead to the sharing of information and technology between the two nations for the preservation of the Amazon rainforest. n177 Through the Accord, the governments of both countries have agreed to trade information on atmospheric changes, threats to the ozone layer, urban pollution, deforestation and toxic pollution of waterways and landfill sites. n178 While this is an interesting first step, it is not enough.
In the US, there traditionally has been a reliance on territorial principles for exercising jurisdiction, but trends in environmental law reveal a movement away from these principles, relying instead on shared interests and policies to protect the common environment. n179 Today, the interdependence of countries, increased mobility, communications and trade, and a growing awareness of present and future responsibility to those who share the planet has led countries to attempt to protect their interests in the environment by projecting their policies overseas. n180
Because of the fact that the Brazilian Amazon is located within a developing country, certain concerns are automatically implicated. Developed nations constitute a minority of the world's [*155] population and surface area. n181 Yet, while the developed nations have only a quarter of the world's population, they control eighty percent of the world's income. n182 These figures point out that the developed nations occupy a special position because of their disproportionate power. Developed nations can effectively direct the course of international law because they signify the greatest concentration of wealth and, therefore, "dominate the international economic system." n183 Consequently, those nations set the rules and regulations of trade and control the international institutions of trade, money and finance; the developed nations also have the most power in creating international law. Because of this power, the developed nations have an obligation to address international problems without purely national concerns. That is, international decision-making ought to be in a global context and not based simply on the drive for national benefit and advantage. n184
Two additional factors support this conclusion. First, developed nations achieved their position of economic and political superiority in part through the exploitation of developing nations. In no instance did any of these nations receive a benefit equal to that extent. n185 Rather, the nations were exploited and used until no longer profitable or until the indigenous people achieved independence. n186 Second, the developed nations continue to consume a disproportionate share of the world's resources. n187 For example, the US is the largest consumer of natural resources and the largest producer of energy and carbon dioxide pollution. n188
The earth's resources are limited, and our environment is vulnerable to the forces set in motion by technical and economic development. The amounts of air and water are restricted and so are sources of energy. Supplies of raw materials are exhaustible. Uncontrolled pollution of the seas and atmosphere may permanently upset the processes upon which human life depends. What is ulti [*156] mately at stake does not involve one nation but rather the survival of humankind on this limited planet. n189
Tropical rainforests such as the Brazilian Amazon are very important to the world. Among other things, such forests play a key role in the global carbon cycle, help maintain regional air, water and soil quality, and store a great supply of the world's biodiversity. Despite the fact that the benefits of rainforests are enjoyed worldwide, such places are not legally recognized as "global commons." Generally, forests such as the Amazon are considered the property of the countries in which they grow. The principles of national sovereignty serve to ensure that each state has a "right to exploit their own resources pursuant to their own environmental policies." n190 It is because of this complex mix of global and sovereign interests that the conservation and management of rainforests, such as the Brazilian Amazon, present an especially difficult set of issues.
It is unlikely that, if left to act alone, Brazil would be able to deal effectively with the complex problem of the deteriorating Amazon. The fact is that the long-term effects of pillaging the forest environment mean little to masses of people facing starvation or to a government faced with staggering foreign debt, great income disparities among its people, and an intense desire to modernize. In Brazil, many people find simple day-to-day living so difficult that environmental issues cannot be thought of as a high priority. While there is an indication of growing environmental awareness among Brazilians, there is little evidence of any real change in the Government's mandate to maintain sovereignty over its great forest. Even though agreements, studies, and policy statements have been flowing freely, scientists and environmentalists feel that they are losing the race against time to save the Amazon and its resources. In fact, laws are still being passed in Brazil which actually contribute to the degradation of the environment. n191
[*157] The fundamental task for development is to build institutions in Brazil that reduce the logic of human destruction, overpopulation and ecological degradation. Towards this end, developing countries can lend encouragement and expertise. "Improvements" made to state claims to land ought not depend on clearing, but on sustained use and investment. Legal concepts of land tenure must be redeveloped to focus not on absolute rights to manipulate land, but on obligations to protect land, or even to make land available to those who can use it.
Although Brazil has not damaged the Amazon rainforest solely on its own accord, it cannot escape certain culpability for the actions which it has undertaken - actions which caused damage to the global environment. To say that a state, such as Brazil, does not have a right to harm the environment of other states is somewhat quixotic, particularly considering the numerous transnational acts in which states engage each day, the difficulty in limiting environmental effects to one side of a national border, and the possibility for accidents. However, there can be little doubt that international restraints and intervention must be part of the proper response to such action.
It is precisely because the preservation of the Amazon has benefits that extend beyond Brazil's borders that international funding of Amazonian protection is appealing as the fairest and potentially most effective solution. Brazil, by itself, has neither the financial nor the political capital to invest in enforcing existing environmental protections over the vast, sparsely settled, rapidly growing area of its Amazon frontier. International law, particularly as embodied in international environmental conventions, is chronically weak on enforcement. As such, treaties and agreements, no matter how well planned, are not likely to play a primary role in solving the problems of the Brazilian Amazon.
The same political, social and financial pressures that prompt Amazonian development also hinder the chance of any domestic solution to the environmental problem. Providing international financial, technical and other assistance, as well as legal incentives to Brazil to protect its Amazon forests, would recognize the entire world's stake in the state of the rainforest. Such a plan would distribute the costs and responsibilities of protecting the rainforest among the world citizenry, all of whom benefit from its presence.
n1. See Latin America Environmental Ruin "Terrible," Reuters World Service, Feb. 21, 1997, available in LEXIS, World Library, Curnws File.
n2. See Michael Christie, Kohl Says G7 Eco-Action over Amazon Is Pathetic, Reuters N. Am. Wire, Sept. 18, 1996, available in LEXIS, News Library, Wires File.
n3. See, e.g., Henry W. McGee, Jr. & Kurt Zimmerman, The Deforestation of the Brazilian Amazon: Law, Politics and International Cooperation, 21 U. Miami Inter-Am. L. Rev. 513, 515 (1990) [hereinafter Deforestation]. The authors point out that the "traditional Amazon" is generally said to comprise about 42% of Brazil's national territory, or 3.5 million square kilometers, and includes the states of Acre, Rodonia, Amazonas and Para, as well as the territories of Roraim and Amapa. This region is approximately five times the size of the State of Texas.
n4. See Alex Shoumatoff, The World Is Burning (1990).
n5. See, e.g., Thomas M. Landy, Connecting Poverty and Sustainability: The 1993 National Conference on Sustainable Solutions - Population, Consumption and Culture, 21 B.C. Envtl. Aff. L. Rev. 277 (1994).
n6. See Jeremy Rifkin, Beyond Beef 1 (1992).
n7. See id. at 147.
n8. See id.
n9. See id.
n10. Amazon Rubber Tappers Appeal to Brazil's Government for Help, Reuters Libr. Rep., Apr. 3, 1991, available in LEXIS, News Library, Arcnws News.
n11. See Alfred W. Crosby, Ecological Imperialism 160 (1986).
n12. See Brazil Police Query Amazon Activist's Killer on Son, Reuters N. Am. Wire, July 1, 1996, available in LEXIS, News Library, Wires File.
n13. See Brazil Recaptures Rainforest Activist Murderer, Reuters World Service, June 30, 1996, available in LEXIS, News Library, Wires File.
n14. See Crosby, supra note 11, at 160.
n15. Alan B. Durning, Cost of Beef for Health and Habitat, L.A. Times, Sept. 21, 1986, at 3.
n16. See id.
n17. See James Grainger, The State of the World's Tropical Forests, 10 Ecologist 6, 47 (1980).
n18. See Hope Reaches the Amazon, Economist, July 15, 1989, at 47.
n19. See Michael S. Giaimo, Deforestation in Brazil: Domestic Political Imperative - Global Ecological Disaster, 18 Envtl L. 537, 550 (1988).
n20. See id.
n21. See Grainger, supra note 17, at 18.
n22. See id.
n23. See id. at 11.
n24. See Lenilson Ferreira, Malaysian Firm Buys 65,000 Sq. Km. of Amazon Rainforest, Japan Econ. Newswire, July 21,1996, available in LEXIS, News Library, Wires File.
n25. See Foreign Timber Firm Owns 20,000 Sq. Km. in Amazon, Japan Econ. Newswire, Feb. 28, 1997, available in LEXIS, News Library, Wires File.
n26. See id.
n27. See Ferreira, supra note 24.
n28. See id.
n30. See Rifkin, supra note 6, at 194.
n31. See Crosby, supra note 11, at 180.
n32. See Rifkin, supra note 6, at 194-95.
n33. See id.
n34. See id. at 195.
n35. See Giaimo, supra note 19, at 541.
n36. See Mathew Royer, Halting Deforestation: Do the Forest Principles Have What It Takes, 6 Duke Envtl. L. & Pol'y F. 105, 119 (1996).
n37. See id. at 570.
n38. See Crosby, supra note 11, at 160.
n39. See id. at 162.
n40. See Rifkin, supra note 6, at 195.
n42. See Giaimo, supra note 19, at 548, 549.
n43. See id. at 549.
n44. See Royer, supra note 36, at 121.
n45. See Daniel P. Caswell, Comment, The Promised Land: Analysis of Environmental Factors of United States Investment in and Development of the Amazon Region in Brazil, 4 Nw. J. Intl. Law & Bus 517 (1982).
n46. See generally Deforestation, supra note 3.
n47. See C. Russell H. Shearer, International Environmental Law and Development in Developing Nations: Agenda Setting, Articulation and Institutional Participation, 7 Tul. Envtl. L.J. 391, 400 (1994).
n48. See Brazil's Collor Says Environment Will Be Government Priority, Reuters, Feb. 8, 1990, available in LEXIS, News Library, Arcnws File.
n49. See Sharon Begley et al., The Endless Summer?, Newsweek, July 11, 1988, at 18, 19 (asserting that humankind has destroyed the delicate balance created by nature).
n50. See id.
n51. See id.
n52. See Shearer, supra note 47, at 403.
n53. See id.
n54. See id.
n55. See Mac Margolis, Taking Two Steps Back, Newsweek, Jan. 8, 1996, at 52.
n56. See id.
n57. See id.
n58. See Jennifer Woodward, Comment, Turning Down The Heat: What U.S. Law Can Do to Ease Global Warming, 39 Am. U. L. Rev. 203 (1989).
n59. See Abraham Lama, Environment - Amazon: In Search of Sustainable Development, Inter Press Service, Dec. 6, 1995, available in LEXIS, News Library, Arcnws File.
n60. See id.
n61. See Nick Nuttall, Unknown Monkey Saved from Poachers in Brazilian Rainforest, Times, June 22, 1996, available in LEXIS, News Library, Curnws File.
n63. See id.
n64. See Tom Kenworthy, Saving Plant and Animal Life: Treaty on Biological Diversity Offers Possibility of Breakthrough, Wash. Post, June 1, 1992, at A15.
n65. See, e.g., Edward D. Wilson, The Diversity of Life, 281-83 (1992). Wilson points out that the Rosy Periwinkle, a small plant from the forests of Madagascar, can cure most victims of two types of cancer: Hodgkin's Disease and a type of Leukemia. Id. at 283. Wilson also points out that there are many other beneficial but still unknown species. Id. at 281.
n66. Myron Magnet, The Scramble for the Next Super Drug, Fortune, Oct. 19, 1981, at 94.
n67. See Paul Mylrea, Nobel Laureate Says Amazon Burning Destroying New Medicines, Reuters, Jan. 10, 1990, available in LEXIS, News Library, Arcnws File.
n68. See id.
n69. See generally Wilson, supra note 65.
n70. See id.
n71. See K.P. Waran, Taking Care of Amazon Jungle, New Straits Times, Dec. 20, 1995, at 9.
n72. Jaap Goudsmit, Viral Sex: The Nature of AIDS (1997).
n73. See Giaimo, supra note 19, at 540.
n74. See, e.g, Diana Jean Schemo, The Dispossessed, N.Y. Times, Apr. 20, 1997 (Magazine), at 43.
n75. See Human Rights Watch, The Struggle for Land in Brazil 26 (1992).
n76. See id. at 29.
n77. See generally Adrian Cowell, The Decade of Destruction (1990).
n78. See id. at 99.
n79. See Diana Jean Schemo, Violence Growing in Battle over Brazilian Land, N.Y. Times, Apr. 21, 1996, at 12.
n80. See id.
n81. See id.
n82. See id.
n83. Note, Legal System of Brazil, 40 St. Louis U. L.J. 1337, 1339 (1996).
n84. See generally Robert D. Kaplan, The Coming Anarchy: How Scarcity, Crime, Over- Population, Tribalism and Disease Are Rapidly Destroying the Social Fabric of Our Planet, Atlantic, Feb. 1994, at 44.
n85. See, e.g., Judith Kimerling, Recent Development, The Environmental Audit of Texaco's Amazon Oil Fields, 7 Harv. Hum. Rts. J. 199 (1994); W. Paul Gormley, The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights As Norms, 3 Geo. Int'l Envtl. L. Rev. 85 (1990).
n86. See Andrew Revkin, The Burning Season: The Murder of Chico Mendes and the Fight for the Amazon Rain Forest 39 (1990).
n87. Jamie Drummond, Tribes Who Won't See the Forest for the Sleaze, Independent, Jan. 4, 1997, at 13.
n88. See Fred Pearce, First Aid for the Amazon; Saving the Rainforest, New Scientist, Mar. 28, 1992, at 3.
n89. See Burning Issue in the Amazon; Row Over Satellite Deforestation Data, Latin Am. Regional Rep., Nov. 30, 1995, available in LEXIS, News Library, Arcnws News File.
n90. See William Schonberg, Brazil Upsets Indian Group with New Reservation Rules, Reuters Ltd., Jan. 9, 1996, available in LEXIS, Nexis Library, Curnws File.
n91. See Laurie Goering, Brazil Indians, Land Developers Battle; Decree Could Cut Reserves, Chi. Trib., Jan. 21, 1996, at 15C.
n92. See id.
n93. Gabriella Gamini, Armed Gold Miners Invade Amazon Indians' Reserve, Times, July 15, 1996, available in LEXIS, News Library, Curnws File.
n94. See id.
n96. Philip Shabecoff, Brazilian Aide Speaks of Shift to Concern for Environment, N.Y. Times, May 13, 1982, at A4.
n97. See Geoffrey Lean, Brazil Moves to Protect Rainforest, Independent, Aug. 4, 1996, at 3.
n98. See, e.g., Maria Burke, UN Should Protect Victims of Bio-Piracy, 1 Chemistry & Industry 10 (1995); All Things Considered: Developing World's View on Biodiversity, (Nat'l Pub. Radio, June 6, 1992 (available in LEXIS, News Library, Arcnws File). (As a result of an agreement between Costa Rica and Merck, a pharmaceutical firm, analysts speculate that Costa Rica will receive between one and 15% in royalties for any drug found within its borders. In this transaction, Merck made an advance payment of one million dollars to Costa Rica, donated chemical extraction equipment worth one hundred and thirty-five thousand dollars, and agreed to provide training to Costa Rican scientists.)
n99. See Pearce, supra note 88, at 5.
n100. See Shearer, supra note 47, at 400.
n101. See generally Deforestation, supra note 3.
n102. See Brazil Reduces Logging Operations, UPI, July 26, 1996, available in LEXIS, News Library, Wires File.
n104. See Brazil: Gov't Restricts Logging in Amazon Rainforest, Greenwire, July 29, 1996, available in LEXIS, News Library, Wires File.
n105. Constituicao Federal [C.F.] capitulo VI, art. 225.
n107. See id. 1(I) - (II).
n108. See id. 1(V).
n109. See id. 2 (discussing necessity of responsible exploitation of minerals from the Amazon).
n110. See, e.g., Philip Shabecoff, The Environment As a Diplomatic Issue, N.Y. Times, Dec. 24, 1987, at A24.
n111. U.S. Const. art. I, 8, cl. 3.
n112. Id. cl. 10. The full text of the clause grants Congress the power "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." Id. In modern terms, this clause gives Congress the power to define and punish violations of international law.
n113. See id. art. II, 2, cl. 2.
n114. See Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
n115. Foreign Assistance Act of 1986, 22 U.S.C. 2101-2151 (1988).
n116. 22 U.S.C. 2151(a) (1988). The rationale behind the law is, "Congress is particularly concerned about the continuing and accelerating alteration, destruction and loss of tropical forests in developing countries which pose a serious threat to development and the environment." Id.
n117. 22 U.S.C. 2151 (1988).
n118. Id. 2151(c)(4).
n119. Id. 2151(c)(5).
n120. Id. 2151(c)(6).
n121. Id. 2151(c)(7).
n122. Id. 2151(c)(8).
n123. Id. 2151(c)(9).
n124. Id. 2151(c)(10).
n125. Id. 2151(c)(14)(A).
n126. Id. 2151(c)(14)(B).
n127. Id. 2151(c)(15).
n128. Id. The statute describes the forest lands to which it applies somewhat ambiguously the prohibition of aid to cattle ranching, and colonization applies simply to "forest lands." Id. The ban on aid to road construction and dams applies only to "relatively undegraded forest lands." 22 U.S.C. 2151(c)(15)(B).
n129. Restatement (Third) Foreign Relations Law of the United States 601(1)(b) (1988).
n130. Id. (emphasis added).
n131. Id. 601(3).
n132. Stockholm Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14/Rev.1, at 3 (1973), reprinted in 11 I.L.M. 1416 (1972).
n133. U.N. Doc. A/CONF.48/14/Rev.1 (U.N. Pub. E. 73, II. A.14 (1973)).
n134. Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (entered into force Dec. 29, 1993).
n135. Id. art. 1.
n136. Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M. 874 (1992).
n137. See id. princ. 2.
n138. See id. princ. 3.
n139. United Nations Framework Convention on Climate Change, May 29, 1992, 31 I.L.M. 849 (1992) (entered into force Mar. 21, 1994).
n140. Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, U.N. Doc. A/CONF.151/6/Rev.1 (1992), reprinted in 31 I.L.M. 881 (1992).
n141. Id. princ. 13(e).
n143. Id. princ. 4.
n144. Id. princ. 2(a).
n146. Id. princ. 1(b).
n147. Id. princ. 8(c).
n148. Agenda 21, United Nations Conference on Environment and Development, June 13, 1992, U.N. Doc. A/CONF. 151/4 (1992, reprinted in The Earth Summit: The United Nations Conference on Environment and Development (UNCED) 125-508 (Stanley P. Johnson ed., 1993).
n149. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
n150. See Lean, supra note 97, at 3.
n151. See Military Experts Stress Vulnerability of Amazon Region to U.N. Intervention, BBC Summary World Broadcasts, Jan. 31, 1996, available in LEXIS, News Library, Curnws File.
n152. See id.
n153. See id.
n154. See Shearer, supra note 47, at 408.
n155. See, e.g., Charles F. Meissner, Crisis As an Opportunity For Change: A Commentary on the Debt Restructuring Process, 17 N.Y.U. J. Int'l L. & Pol. 613, 614 (1985).
n156. Tamara J. Hrynik, Note, Debt for Nature Swaps: Effective but Not Enforceable, 22 Case W. Res. J. Int'l L. 141, 151 (1990).
n157. See id. at 564.
n158. See Pearce, supra note 88, at 9.
n159. See Latam Nations Say No Mud-Slinging at Eco Summit, Reuters Libr. Rep., Feb. 20, 1992, available in LEXIS, News Library, Arcnws File.
n160. See Giaimo, supra note 19, at 564.
n161. Michael Chamberlin et al., Sovereign Debt Exchanges, 1988 U. Ill. L. Rev. 415, 417 (1988).
n162. See Jeffrey A. Blackie, Conservation Easements and the Doctrine of Changed Conditions, 40 Hastings L.J. 1187 (1989).
n163. See Hrynik, supra note 156, at 141-42.
n164. See, e.g., Priya Alagiri, Comment, Give Us Sovereignty or Give US Debt: Debtor Countries' Perspective on Debt-for-Nature Swaps, 41 Am. U. L. Rev. 485 (1992).
n165. See Hrynik, supra note 156, at 141-42.
n166. See Alagiri, supra note 164, at 499.
n167. See Harwood, Debt for Nature Swaps, Taxes Int'l, Feb. 15, 1988, at 3.
n168. See id.
n169. See id.
n170. See Brazil's Collor Says Environment Will Be Government Priority, Reuters, Feb. 8, 1990, available in LEXIS, News Library, Arcnws File.
n171. See, e.g., Alagiri, supra note 164.
n172. See Robert E. Lutz, The Export of Danger: A View from the Developed World, 20 N.Y.U. J. Int'l L. & Pol. 629, 657 (1988).
n173. See, e.g., David Barrans, Note, Promoting International Environmental Protection Through Foreign Debt Exchange Transactions, 24 Cornell Int'l L.J. 65 (1991).
n174. See id.
n175. See id.
n176. For example, legal duties exist pursuant to the "polluter pays" principle. See, e.g., Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607 (1988).
n177. See United States and Brazil Sign Rainforest Accord, Oct. 26, 1995, Global Warming Network Online Today, available in LEXIS, News Library, Arcnws File.
n178. See id.
n179. Harry H. Almond, The Extraterritorial Reach of United States Regulatory Authority over the Environmental Impacts of Its Activities, 44 Alb. L. Rev. 739 , 759 (1980).
n180. See id. at 739.
n181. See Lutz, supra note 172, at 657.
n182. See id. at 657.
n183. See id.
n184. See, e.g., John Ntambirweki, The Developing Countries in the Evolution of an International Environmental Law, 14 Hastings Int'l & Comp. L. Rev. 905 (1991).
n185. See Shearer, supra note 47, at 412.
n186. See id.
n187. See id.
n188. See Russell E. Train, A Call for Sustainability: To Ensure Our Future Survival, Major Changes Are Needed Now, EPA J., Sept.-Oct. 1992, at 7.
n189. See Ntambirweki, supra note 184, at 905.
n190. Declaration of the United Nations Conference on the Human Environment, Principle 21, June 16, 1972, U.N. Doc. A/CONF. 48/14/Rev.1 (1973), reprinted in 11 I.L.M. 1416, 1420 (1972).
n191. See, e.g., Proposed Law Would Cut 70 Percent of Protected Area in Atlantic Rainforest, 18 Int'l Env't Rep. 650 (1995).
Prepared: February 1, 2001 - 12:02:29 PM
Edited and Updated, February 2, 2001
Professor Andreas Teuber's