international involvement in preservation of the …biological diversity, greater fire-proneness and...

ASIA PACIFIC JOURNAL OF ENVIRONMENTAL LAW, VOL 13, ISS 1 © Australian Centre for Climate and Environmental Law 2010

International Involvement in Preservation of the Brazilian Amazon Rainforest: Context,

Constraints and Scope Brett Simpson

Resources and environmental lawyer

Abstract

Lack of international recognition of the fundamentals of Brazilian history has been a key factor leading to a clash of international responsibilities and national rights that has inhibited past conservation efforts in respect of the Brazilian Amazon. However, emergent convergence of national action and international support, including in the context of nascent REDD programs, could now enable the rational preservation of much of the remaining rainforest, to the benefit of Brazil, the South American region and the world in general. This article reflects the legal and factual position as at 17 March 2010.

Introduction

The Amazon rainforest, most of which is in Brazil, is of great importance to the world’s oxygen resources, climate and biodiversity and has suffered deforestation at a rapid rate over many years.

Awareness of the problem led to international efforts to stop deforestation in the Brazilian Amazon yet the deforestation largely continued. This article suggests that an underlying reason may lie in Brazil’s historical and cultural context.

This article maintains that evolving international action that has respected that context has been productive and points the way to more effective international involvement in the future. A number of past, current and prospective actions are examined, in particular the G7 Pilot Program, the Amazon Region Protected Areas Program, the Amazon Fund and REDD proposals.

While various factors considered in the article may be specific to Brazil, they can also be indicative of the wider practical importance of thorough comprehension of relevant historical and cultural elements in other developing countries that have been the focus of significant international attention in relation to destruction of tropical rainforest and other environmental issues.

ASIA PACIFIC JOURNAL OF ENVIRONMENTAL LAW

40

The Amazon and Global Concern

The Amazon Basin comprises more than seven million square kilometres in seven countries.1 It includes a tropical rainforest biome of some 5.5 million square kilometres, about 60 per cent of which is within Brazil.2

The forests of the Amazon vary greatly and different areas have very different ecological characteristics. As an ensemble, the Amazon is of vast ecological importance. It includes ‘over half of the planet’s remaining rainforests and comprises the largest and most species-rich tract of tropical rainforest in the world.’3 Brazil itself may be the world’s most biologically megadiverse country.4

Additionally, the Amazon’s biodiversity is typified by a high degree of local endemism, with numerous individual species being found only within a specific and relatively small area of the forest. Consequently, deforestation of an area ‘can result in loss of species and loss of genetic variability within species even when the forest surrounding a cleared area appears to human observers to be identical to the forest that was lost’.5

The Amazon Basin also contains a very great proportion of the world’s available fresh water.6 Moreover, the sheer size of the Amazon rainforest is such that it creates largely its own climate and is the predominant determinant of the climate of Brazil and of the region as a whole, with influence extending planet-wide.7

The Amazon rainforest is often referred to as the world’s ‘lungs’ because of widespread recognition that its billions of trees absorb carbon dioxide and generate enormous quantities of oxygen.8 The Amazon has also been described as the ‘great heat factory of the world’ with ‘a daily energy turnover equal to some six million atomic bombs’ and comprises a massive driving force for major global air currents.9

It should not, however, be thought that the Amazon’s interaction with the rest of the world is a one-way affair. A salient example is comprised by evidence that the Amazon is

1 Brazil (68 per cent), Peru, Bolivia, Colombia, Ecuador, Venezuela and Guyana. Suriname and French Guiana (an

Overseas Department of France) are also commonly considered Amazonian because of the continuation of the Amazon forest into their territory, even though their rivers flow away from the Amazon River itself. Suriname, like the seven Amazon Basin countries, is a party to the Amazon Cooperation Treaty of 1978.

2 Calculations of the area and percentage can vary somewhat depending on the parameters used. 3 S Anitei, The Mighty Amazon: Records and Fragility (24 November 2007) Softpedia <http://www.news.softpedia.com/

news/Mighty-Amazon-Records-and-Fragility-71816.shtml> at 1 September 2010. 4 See M Thiago de Mello, ‘Biodiversity Conservation in the Brazilian Amazon’ (3rd IUCN Conservation Congress,

17–25 November 2004). 5 PM Fearnside, ‘Amazonia, Deforestation of’ in S Goudie and DJ Cuff (eds), Encyclopedia of Global Change:

Environmental Change and Human Society (2007, vol 1, Oxford University Press). 6 JA Marengo, of Brazil’s National Institute of Space Research (Instituto Nacional de Pesquisas Espaciais) (‘INPE’),

reports that the Amazon Basin ‘has 70 per cent of the world’s available fresh water’: JA Marengo, ‘Water and Climate Change’ (2008) 23 Estudos Avançados 63. See also Hurtak, below n 7.

7 JJ Hurtak, Crisis of the Amazon: An Overview by a Visiting Scientist (2009) The Academy For Future Science <http:/www.affs.org/html/crisis_of_the_amazon.html> at 1 September 2010.

8 Marine phytoplankton actually generate more oxygen but the massive oxygen production in the Amazon rainforest is also of vital importance.

9 Hurtak, above n 7, where an outline is given in relation to Amazonian air current impacts worldwide, including impacts on ocean currents.

INTERNATIONAL INVOLVEMENT IN PRESERVATION OF THE AMAZON

41

fertilised each year by 40 million tonnes of mineral-rich dust blown from the Sahara Desert.10 Another example is the very large contribution that Amazonian deforestation has made to atmospheric carbon levels for many years.11

The serious threat that climate change poses to the Amazon rainforest12 — emphasised by the unprecedented extreme drought in the Amazon in and around 2005 — reinforces and greatly increases the need to maintain as far as possible the capacity of that forest to preserve itself.

In the face of that need, however, the reality is that the Amazon, and in particular the Brazilian Amazon, has suffered deforestation at an alarming rate, from the 1960s (after construction of the Brasilia-Belem Highway) and even more so from the 1970s onwards, largely consequent upon access provided by construction of the Trans-Amazonian Highway and of the highway linking the capitals of Mato Grosso and Rondonia (Highway BR-364).

Though there are some extensive areas of cerrado (savanna),13 most of the Brazilian Amazon is forested. However, by 2009 the forested area of 4 100 000 square kilometres had been reduced to less than 3 350 000 square kilometres.14 Additionally, research has indicated that the amount of forest seriously degraded by logging and fire is substantially larger than the amount of forest cleared.15 Of special concern in that regard is that degraded forest has lower biological diversity, greater fire-proneness and greater susceptibility to clearing.16

Enhanced awareness of the importance of the Amazon has led to increasing recognition, within and outside Brazil, of the worldwide ramifications of preservation or destruction/degradation of the Brazilian Amazon rainforest.

This has resulted in both international disquiet and increased international support, including financial and technological support, for action at both state and federal levels.

Nevertheless, in Brazil as in many developing countries, there has been concern that international demands for environmental preservation of forest areas could threaten or diminish national sovereignty.

10 I Koren, YJ Kaufman, R Washington, MC Todd, Y Rudich, JV Martins and D Rosenfeld, ‘The Bodélé

Depression: A Single Spot in the Sahara that provides most of the Mineral Dust to the Amazon Forest’ (2006) Environmental Research Letters 1.

11 The United Nations Framework Convention on Climate Change (‘UNFCCC’) figures for 2005/2006 (being the most recent available at the time of preparation of this article) show Brazil as the fourth largest emitter of greenhouse gases (after the USA, China and Russia): FCCC/SBI/2005/18/Add.2 25 October 2005 and FCCC/SBI/2008/12 17 November 2008. Brazil was the country emitting the most greenhouse gases emissions from land-use change, followed by Indonesia. (Brazil appears to have been subsequently overtaken by Indonesia in that regard.) The vast majority of Brazil’s emissions have been from the burning of Amazonian forest.

12 See Marengo, above n 6, who notes: ‘Brazil is vulnerable to current climate changes and even more to those projected for the future, especially climatic extremes. The most vulnerable areas include the Amazon and Northeastern Brazil, as shown in recent studies’.

13 The Brazilian cerrado, most of which occurs outside the Amazon Basin, is itself very biodiverse. 14 The original satellite measurement and calculation of area was made in 1978, when INPE recorded that

approximately 150 000 square kilometres of the 4 100 000 square kilometres referred to above had already been deforested. See INPE figures <http://dpi.inpe.br/prodesdigital/prodes.php>.

15 CM De Souza, MA Cochrane, MH Sales, AL Monteiro, D Mollicone, ‘Integrating Forest Transects and Remote Sensing Data to Quantify Carbon Loss due to Forest Degradation in the Brazilian Amazon’ (Working Paper 161, Forest Resources Assessment Programme, 2009).

16 JJ Gerwing, ‘Degradation of Forests through Logging and Fire in the Eastern Brazilian Amazon’ (2002) 157 Forest Ecology and Management 131.


42

The reason for such anxiety was epitomised when, at the 1989 summit on protection of the global atmosphere, President Mitterrand of France went so far as to call for the establishment of a United Nations body with power to use force to intervene in the case of global environmental dangers.17

It was no surprise that Brazil’s president denounced President Mitterrand’s statement as being a threat to Brazil’s sovereignty. The Brazilian military, too, noted with understandable concern that President Mitterrand ‘alluded to the devoir d’ingérence18 [duty to intervene] of the world community in the protection of the environment, suggesting the creation of a supranational guardian authority’.19

As well as views held in common with many other developing countries, there are key factors specific to Brazil that stem from its unique history; in particular, its path to nationhood and the establishment of its frontiers. Awareness of these factors may be crucial to the avoidance of counter-productive international activity and to securing optimal international participation in the effective preservation of the Brazilian Amazon rainforest.

Emergence of the Nation of Brazil

Under the Treaty of Tordesillas (1494), Spain and Portugal demarcated their territory in South America and elsewhere — and Portuguese South America (Brazil)20 was confined to a relatively small area in what is now the east of the country, extending just far enough west to include Sao Paulo and a little beyond.21

The union of Spain and Portugal in 1580 under King Phillip II of Spain led to Portuguese-speakers, mainly from Sao Paulo, spreading into areas of the Amazon previously closed to them as being Spanish territory. By the time Portugal again became independent from Spain (1640), there had been so much Portuguese settlement, within territory previously designated Spanish, that the international frontiers again came into question. The Treaty of Madrid (1750) re-drew the boundaries22 and did so on the basis of the principle of international law known as ‘Uti Possidetis’ — essentially the principle that possession is ownership.23

As a consequence, the frontiers of Portuguese territory were greatly expanded. Brazil eventually came to comprise approximately half of South America — and the importance of

17 See, for example, K Hochstetler and ME Keck, Greening Brazil: Environmental Activism in State and Society (Duke

University Press, 2007) 113, where President Mitterrand is quoted as having gone on to state: ‘This will result in the loss of sovereignty for some nations, but it has to be done.’

18 ‘Droit d’ingérence’ or ‘devoir d’ingérence’ describes the evolving and controversial principle of international law that posits that there is a right (‘droit’) or even a duty (‘devoir’) to intervene in certain extreme circumstances. The concept was espoused as far back as H Grotius, De Jure Belli ac Pacis (1625) but has been particularly, and still controversially, promoted in recent years in relation to crimes against humanity.

19 A de Souza Pinheiro, ‘Guerrillas in the Brazilian Amazon’ (1996) LXXVI Military Review 38. 20 Upon its discovery by the Portuguese navigator, Pedro Alvares Cabral, in 1500. 21 Indeed, had the Treaty of Tordesillas not moved the initial demarcation line set by Pope Alexander VI in 1493, the

Portuguese possessions in South America would have been confined to an even smaller area, to the east of Sao Paulo. 22 Later treaties, in particular the Treaty of El Pardo (1761) and the Treaty of Santo Ildefonso (1777), resulted in further

boundary shifts. 23 ‘The legal doctrine of uti possidetis juris ... . The principle behind this doctrine dates to Roman times and takes its

name from the Latin phrase ‘uti possidetis, ita possideatis,’ or ‘as you possess, so may you possess.’ PR Hensel, ME Allison and A Khanani, ‘The Colonial Legacy and Border Stability: Uti Possidetis and Territorial Claims in the Americas’ (Paper presented at International Studies Association meeting, Montreal, 2004).


43

clearly-defined occupation of the land, as a foundation for legal ownership, was established in national thought as well as in international law in the region. The specific international legal principle of Uti Possidetis was later applied widely in South America, including in relation to Brazil’s borders, when the Spanish left their colonies in the 19th century.

Subsequently, a series of wars in the south resulted in the loss of territory to Paraguay and (partly due to British pressure) the establishment of Uruguay as a nation, preventing Brazil from having the ‘natural boundary’ of the River Plate. As a consequence of the contraction of its territory and territorial ambitions in the south, Brazil turned its focus northwards, to the Amazon, and was determined not to lose Amazonian territory — and has not. The frontiers of northern and eastern Brazil, and thus the Brazilian Amazon, were considerably expanded and, where not already defined, were essentially established between 1895 and 190924 (predominantly by the diplomatic skill of the renowned Baron of Rio Branco) — again primarily on the basis of Uti Possidetis.

The vital importance of uncompromised sovereignty over its Amazon has consequently been ingrained in the policies of the Brazilian Government, in particular the Ministry of Foreign Affairs and — importantly, given the power of the military in Brazil throughout its history — the Ministry of Defence. The Brazilian armed forces themselves have seen the occupation and protection of the Amazon as the core of their role in the nation — and that mindset has been very broadly shared by the Brazilian people as well as the government.

This has impacted on Brazil’s approach to international treaty proposals. In particular, it has been a key factor in Brazilian resistance to the assumption of international obligations in relation to deforestation or any other matter in which the international community could be seen to be impinging on Brazil’s sole possession and ownership of, and sovereignty over, its Amazon region.

This was a driver of Brazil’s adamant refusal, at the United Nations Conference on Environment and Development (‘UNCED’) at Rio de Janeiro in 1992, to countenance a binding international agreement on forests. The rather mild, non-binding ‘Rio Forest Principles’25 was the most that would be accepted by Brazil (and various other developing countries, including Indonesia, Malaysia and other significant rainforest nations).26 To undertake concrete commitments was seen as potentially providing foreign powers with justification, or pretext, for occupation of economically and culturally valuable Amazonian areas — or, at the very least, for international interference with Brazil’s governance of its Amazon.

Action

In 1989, in response to the unprecedented scale of deforestation and the momentum within Brazil for largely unrestrained and accelerating development of the Amazon, international NGOs made a determined effort to restrict Brazil’s access to the international finance that was

24 Physical demarcation of some of the defined borders did not occur until later and certain relatively minor

clarificatory adjustments were made to particular border definition wording. (A question also arose later when, along Brazil’s border, Bolivia’s border with Peru changed — but Brazil’s own border ultimately did not change.)

25 UN General Assembly, Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, A/CONF.151/26 (vol III) (14 August 1992).

26 See, for example, V de Campos Mello, ‘Mainstreaming the Environment: Global Ecology, International Institutions and the Crisis of Environmental Governance’ (2000) 17 Research in Human Ecology 31.


44

underpinning some significant elements of that development. Their campaign had considerable effect in impeding some major projects, at least for a time, but also generated resentment.

Both Brazil and the international community recognised the need to resolve the confrontation and this recognition led to a substantial measure of co-operation, especially from the time of the G727 summit on the Brazilian rainforests in 1990, which was held with Brazilian support and which resulted in major international funding for environmental action within Brazil.28

Since then, a great deal of wider international effort has gone towards the goal of forest preservation generally and legal and other instruments to achieve that goal.

United Nations Forum on Forests

The United Nations Forum on Forests (‘UNFF’) was, among other things, tasked to consider ‘the parameters of a mandate for developing a legal framework on all types of forests’.29

One result of its negotiations is that the much-debated goal of a legally-binding instrument on all types of forests has now been put aside30 and, subject to the prospects of ‘REDD’ arrangements (addressed later in this article), the overall international law focus has been on ‘softer’ law, including the Non-legally Binding Instrument on all Types of Forests31 which came into effect in 2007.32 That instrument essentially provides ‘a framework for national action and international cooperation’,33 rather than requiring any specific action.

Particularly in the light of fundamental perspectives forged by Brazil’s history, international acceptance of a non-binding international instrument, rather than continuing to seek some form of binding instrument, may well not be a negative in respect of the Brazilian Amazon.34

Local land purchase by international persons

An independent international effort towards direct involvement in conservation at a local level has been the purchase, by foreign individuals or international organisations, of land in the Amazon. Similar purchases in some other countries have, in certain circumstances, been welcomed.35

Moreover, since the purchaser must pay market price and clearly is subject to national sovereignty and laws, it might have been simplistically conjectured that such purchases would attract no more concern than that attendant on foreign purchases of land for any purpose in many parts of the world. However, in late 2006 an international plan to market the concept

27 Group of seven specific developed nations: Canada, France, Germany, Italy, Japan, United Kingdom, United States. 28 See the section of this article entitled ‘G7 Pilot Program’. 29 United Nations Economic and Social Council (‘ECOSOC’) Resolution 2000/35. 30 It will not be considered further until 2015. Report of UNFF Sixth Session, 13–24 February 2006. 31 UN Doc A/C.2/62/L.5. 32 Adopted on 17 December 2007 at the 62nd session of the UN General Assembly by Resolution 62/98. 33 Ibid art 1. 34 Indeed, the long-running debate as to whether to have a legally-binding forests agreement was arguably a

distraction in respect of tropical forests generally and the action of the UNFF in settling that issue (at least until 2015: above n 30) could lead to more concentration on action on the ground worldwide.

35 For example, private purchase of coastal rainforest land in Costa Rica, to protect it from unsuitable development: see M Strong, ‘Where on Earth are We Going’ (2001) Texere 159, 160.


45

was very unfavourably received by the Brazilian Government. It was made clear that it will be Brazilians who decide whether development takes place in the Brazilian Amazon and that, if Amazonian areas are to be preserved, it will be Brazil that decides to reserve them.

The firm view expressed by three key Ministers, including the internationally-respected and conservation-minded Minister for the Environment, Marina Silva, was: ‘The Amazon is the heritage of the people of Brazil and is not for sale.’36

G7 Pilot Program

A different approach to the international provision of funds to the preservation of major forest areas was, however, taken successfully for some years.

Building on in-principle agreement established between the G7 and Brazil in 1990, Brazil officially launched the G7 Pilot Program at UNCED in 1992.37 The G7 nations pledged financial assistance to Brazil to address environmental challenges. Between 1995 and 2005, $428 million was provided — the vast majority ($360 million) by Germany38 and the balance by a number of other developed nations,39 the European Union and Brazil itself.

The program’s main focus was on the protection of indigenous lands, in the Amazon and elsewhere, and the remnants of the Atlantic forest strip.

Much was achieved by the pilot program. Substantial areas of Amazonian forest became demarcated and protected as indigenous lands and have since formed foundations for subsequent accretions of adjacent areas as conservation reserves. Work under the pilot program also included generation and dissemination of information and strengthening Brazilian institutions charged with environmental and resource management.

Importantly, it was Brazil, primarily through Ministry of the Environment and the Brazilian Institute for Environment and Natural Resources (‘IBAMA’),40 which was conducting the program,41 albeit with significant directional input from the G7, generally via the World Bank. The success of the pilot program demonstrated that Brazil was willing to accept international involvement in preservation of Amazon areas, provided the involvement was by way of substantial tangible support for action by Brazil itself. Nevertheless, some concerns lingered as to the extent of the operational participation by international elements. Though it is still officially on foot, major activities currently receiving international financial and technical support are outside the rubric of the G7 Pilot Program.

36 C Amorim (Foreign Affairs), S Rezende (Science and Technology) and M Silva, ‘The Amazon is not for sale’

<http://brasilemb.org/index.php?Itemid=124&id=94&option=com_content&task=view>. Originally published in Portuguese in Folha de São Paulo, 17 October 2006.

37 Following approval of specific initial projects, implementation began in 1995. 38 M Dutshke and R Wolf, ‘Reducing Emissions from Deforestation in Developing Countries: The way forward’

Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH and the Federal Ministry for Economic Cooperation and Development (Germany) (2007) 17.

39 The Netherlands, Italy, France, Japan, Canada, the United Kingdom and the United States. 40 Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (‘IBAMA’) is the national

governmental body with primary management and enforcement responsibility for forestry, environment and natural resources generally.

41 Nine federal ministries were involved, plus state governments and Brazilian NGOs.


46

Establishment of conservation areas; ARPA

Despite the Brazilian Government having removed many of the governmental financial incentives for legal or quasi-legal clearing in the Amazon, deforestation has continued. Much of it simply is illegal.

One reason for the continuing illegal encroachment appears to be that of institutional structure. Although large tracts of land in Brazil are privately owned, most of the Brazilian Amazon is publicly-owned land. The fact that this land has been widely seen, by the non-indigenous population,42 as unoccupied has encouraged the view that it belongs to no one and is available to whoever comes and takes possession (for example, private ranchers) — in other words, the exercise of a modern-day de facto Uti Possidetis. This longstanding view could be seen to have been recently reinforced by the 2009 ‘squatters’ law’ that enabled numerous past illegal occupiers of land to obtain title in many areas.43

Conversely, Amazon land is less likely to be illegally occupied if it can be seen to already be ‘possessed’, such as land in designated conservation reserves.

Although ‘lack of enforcement and vulnerability to various threats often leads to degradation inside protected areas, resulting in the so-called “paperparks”’, it has nevertheless been observed in the Brazilian Amazon that land in reserved areas44 tends to be far less subject to deforestation than unreserved areas.45 A notable example is provided by a study of the (now extensively deforested) State of Rondonia: during the study period (1971 to 1999) only 3 per cent of the land in reserves was illegally deforested, compared with a massive 47 per cent of unreserved areas.46

While a substantial proportion of the large difference in those deforestation percentages may have been due to fact that there was generally less road access in the reserved areas, the research showed that the difference went well beyond that factor.

Moreover, the fact that the 2009 ‘squatters’ law’ did not allow past occupation of reserved areas to be legitimised drew an important distinction between reserved land and other land and may further help to discourage such encroachment in future.

42 The view that the rainforest is unoccupied is vigorously contested by indigenous peoples in many areas. One of

the difficulties faced by indigenous inhabitants in that regard is that their use of the forest tends to be essentially non-destructive, whereas the main method for demonstrating occupation in the Brazilian Amazon has been the broadscale clearing of the land concerned. The interaction of Brazil’s specific constitutional protections, laws and practices in relation to indigenous peoples is beyond the scope of this article.

43 Lei 11.952 of 2009. This highly controversial law, enacted in the context of the scale and anarchic nature of illegal occupation/deforestation of the Amazon, provides, among other things, for legitimisation of small to medium-scale illegal occupation which occurred before December 2004 (but not occupation of protected areas and certain other areas: art 4). The law attracted widespread criticism from environmental organizations. On the positive side, it could enable greater focus on prevention of new deforestation, with greater concentration of enforcement effort — if the required enforcement action is taken.

44 Strict preservation areas, sustainable use reserves and indigenous lands. 45 See D Nepstad, S Schwartzman, B Bamberger, M Santilli, D Ray, P Schlesinger, P Lefebvre, A. Alencar, E Prinz,

G Fiske and A Rolla, ‘Inhibition of Amazon Deforestation and Fire by Parks and Indigenous Lands’ (2006) 20 Conservation Biology 65.

46 LV Ferreira, EM Venticinque, R Lemos de Sá and Luiz Carlos Pinagé, ‘Protected Areas or Paper Parks: The Importance of Protected Areas in Reducing Deforestation in Rondônia, Brazil’ (2000) <http://www.amazonia.org.br/guia/detalhes.cfm?id=13156&tipo=6&cat_id=44&subcat_id=185> at 7 September 2010.


47

In late 2002, the Brazilian Government and the international environmental organisation WWF47 signed a Co-operation Agreement,48 establishing the Amazon Region Protected Areas Program (‘ARPA’). At that time, only 3 per cent of the Brazilian Amazon was protected in conservation reserves.49

The use of a formal instrument of this sort between an international NGO and the national government could possibly be seen as occupying the gap that has been left by the limited public international law instruments in this field. It can also be seen as giving practical effect to those international instruments that do exist.

Other bodies have subsequently joined the ARPA initiative — including the Global Environment Facility (‘GEF’), the World Bank (as implementing agency for the GEF), and the Brazilian Biodiversity Fund.50 ARPA’s activities are co-ordinated by IBAMA.

WWF and other major international environmental NGOs and other international institutions have separate programs and projects that they undertake or support in co-operation with the Brazilian Government and the relevant state government(s) and Brazilian NGOs. ARPA has been an especially extensive program.51

A fundamental aim and action of ARPA, and the common goal of the NGOs and the Brazilian Government (in particular the now-influential, though far from dominant, environmentally-concerned elements within government) is for more effective governance of the Brazilian Amazon to be engendered by the provision of financial and technical support for the creation of protected areas — and, importantly, their physical demarcation.

It seems that this may function as a sort of public Uti Possidetis, in effect deterring other would-be possessors.52

To some extent, there may be a risk that reservation/demarcation could simply push deforestation to other areas. Nevertheless, although some such ‘leakage’ (also known as ‘displacement effect’) can occur, there appears to be a very substantial net protective result from the reservation/demarcation.

Indeed, in many places in the ‘Arc of Deforestation’ (the largely denuded swathe of many thousands of square kilometres through the southern and eastern Amazon) ‘the only forest that remains standing is what is in [officially-designated] indigenous areas’.53

47 World Wide Fund for Nature — formerly (and still in the USA, and often in common parlance elsewhere) the World

Wildlife Fund. 48 Termo de Cooperação. 49 Not including indigenous lands reserves. Part of the support role of the WWF is to work with the Government

to identify the areas most in need of protection, based on such key aspects as biodiversity conservation. 50 Fundo Brasileiro de Biodiversidade, a major Brazilian NGO, commonly known as ‘FUNBIO’. 51 It was estimated that $110 million would be needed for ARPA projects to establish protected areas. It was also

decided to establish a capital fund of approximately $250 million, it being estimated that the interest from that amount would enable Brazil to pay in perpetuity the recurrent costs of the protected areas. WWF provided initial funding of $3 million and committed to providing a total of $75 million over the ten-year period of the program. The bulk of the funding has been provided by the GEF.

52 The importance of physical demarcation of reserve boundaries has also been shown to be an important factor in reserve protection globally. See Fiona Leverington, Marc Hockings and Katia Lemos ‘Management Effectiveness Evaluation in Protected Areas — A Global Study’ (2008) U Queensland, Gatton, IUCN WCPA, TNC, WWF: <http://iucn.org/about/union/commissions/wcpa/wcpa_puball/wcpa_pubsubject/wvcpa_effectivenesspub/?2665/Management-Effectiveness-evaluation-in-protected-areas---A-global-study>.


48

The first foray in the ARPA project was the 2002 dedication of the Tumucumaque National Park, covering 39 000 square kilometres in the State of Amapa, a wilderness area along Brazil’s border with French Guiana and Suriname. At the time, this was the largest area of protected tropical forest in the world.54 It has been followed by the protection of many other areas, including (in aggregate) 150 000 square kilometres in the heavily-deforested state of Para.55

The aim of ARPA was to achieve the designation of 12 per cent (500 000 square kilometres) of the Brazilian Amazon as strict environmental reserves (10 per cent) or ‘extractive reserves’ (2 per cent),56 with clearly-defined boundaries (often natural features such as rivers but often, too, clearly visible boundary markers and signposts at regular intervals along the boundary). In the first 4 years of its 10-year program, it achieved about half (230 000 square kilometres) of the target. The original 12 per cent goal subsequently has been increased to 14 per cent, of which 11 per cent comprises new reserves and the balance consists of demarcation and management of pre-existing protected areas.57

Overall forest matrix

In aggregate, over 40 per cent58 of the non-cerrado (non-savanna) part of the Brazilian Amazon59 is in officially protected areas, either as indigenous lands (24 per cent) or as conservation reserves of one sort or another60 — though, as indicated above, ‘protected’ status alone has not so far been a reliable safeguard against deforestation.

Beyond protected areas, the importance of the preservation of an overall forest matrix, as forest in one form or another as distinct from isolated reserves, is well-recognised in conservation worldwide. That principle is of special importance in respect of the Amazon, particularly given the climate functions that arise largely from its sheer size.

Brazilian law61 essentially prohibits Amazon landholders from clearing more than 20 per cent of their forested land, requiring preservation of 80 per cent in its natural state. The measure clearly shows Brazilian recognition of the issue and, properly applied, could provide considerable alleviation (even though some substantial adverse effects of fragmentation, from associated road access networks and other infrastructure as well as from agricultural clearing itself, would remain). Enforcement, though, has so far been problematic

53 PM Fearnside, ‘Deforestation in Amazonia’ in C Cleveland (ed) Encyclopedia of Earth (2007). The protective effect

of demarcation is further enhanced by actively defending the area against encroachment. 54 J Randerson, ‘World’s largest tropical forest park created’, New Scientist, 22 August 2002. 55 Some logging is permitted in some of the Para reserves, provided most forest is conserved. 56 In extractive reserves, low-impact harvesting (in particular, rubber tapping) is permitted. 57 Announced by the government in 2008 and formalised in detail: Ministry of the Environment, ‘Programa Áreas

Protegidas da Amazônia ARPA — Fase II’ (March 2010). 58 More specifically 46.5 per cent, including sustainable forestry reserves (6.7 per cent). 59 The figures are for the Brazilian Amazon vegetation region (‘Bioma’ Amazônia) as recognised by government

ministries, which (a) excludes extensive cerrado (savanna) areas of the Amazon hydrographic basin, and (b) extends slightly beyond the Amazon basin in the north-east to include the area where the Amazonian rainforest extends into eastern Maranhao State.

60 Unidades de conservação (conservation units), being either strict conservation reserves or sustainable use reserves such as extractive reserves (see above n 56). Figures provided by the Ministry of the Environment (including, for indigenous lands, figures from the Brazilian Government’s National Indian Foundation: Fundação Nacional do Índio).

61 Medida Provisória No. 2.166–67 made 24 August 2001. In effect, this comprises an interim amendment of Brazil’s Forest Code (Código Florestal).


49

and the law has been honoured far more in the breach than the observance. (Moreover, faced with the prospect of greater enforcement, a legislative bill is seeking to return the preservation requirement to the pre-2001 level of 50 per cent.)62

However, as noted earlier, most land in the Brazilian Amazon is public land. There is presently a push, by some NGOs and others, for the bulk of the remaining non-reserved Amazon forest to stay in government ownership as timber-producing forest, rather than being used for agriculture.

In that regard, it can be noted that the basis of timber production in Brazil, as in many countries, currently varies greatly from place to place and operator to operator — from relatively sustainable to disastrous. A synthesis of national and international experience may be able to inform the establishment of ecologically appropriate governance structures with broad acceptance by the various interested parties.

If the combination of conservation reserves, indigenous reserves and timber-producing forest can result in very broad contiguous areas of enduring and largely-undisturbed forest, the climate-producing and climate-benefiting functions of the Amazon may be able to continue, along with biodiversity preservation and environmental conservation more generally.

Deforestation rate drops and surges

Brazilian deforestation amounted to approximately a third of the total gross forest loss worldwide from 2000 to 200563 but there was a 60 per cent fall in the annual rate of deforestation in the Brazilian Amazon from 2005 to 2007.64

Among other things, especially the decline in international beef and soy prices65 that lessened the incentive to convert forest land to beef/soy production,66 ARPA and other conservation initiatives were seen as having a significant impact.67

This was made possible by the Brazilian Government’s far more active enforcement role, which is of considerable significance in itself. The government’s decisive action in 2005

62 A requirement which also suffered in the past from lack of enforcement. An associated proposed change, if

approved, would allow the percentage preservation requirement (the reserva legal), in areas already cleared, to be largely met by replacing the lost forest canopy by commercial monocultures, including exotic monocultures. See Projetos de Leis 6424/2005 and 1207/2007.

63 UN Food and Agricultural Organization, ‘Global Forest Resources Assessment 2005’ (2005) <http//:www.ftp.fao.org/docrep/fao/008/A0400E/A0400E00.pdf>. The figures (Brazil 155 000 square kilometres and all countries in aggregate 452 000 square kilometres) do not include regrowth in previously cleared areas and do not include plantings; the figures otherwise include ‘Forest’ and ‘Other wooded land’ as defined in the document. The Brazilian deforestation was predominantly in the Amazon.

64 More specifically, 61.2 per cent. See INPE, Annual Estimates from 1988 to 2009: Annual deforestation rate <http://www.obt.inpe.br/prodes/prodes_1988_2009.htm>.

65 Partly due to a stronger Brazilian currency. 66 Also, in 2006, in response to pressure from international environmental NGOs and European export markets,

the major Brazilian soy-crushers and exporters undertook a self-imposed commitment not to trade soy from areas of the ‘Amazon Biome’ (see above n 59) that were deforested after 24 July 2004. The companies covered by the moratorium handle about 90 per cent of Brazil’s soy production. ABIOVE Newsletter On Soy Sustainability, 20 January 2009 ‘Soy Moratorium — Monitoring In 2009’ (ABIOVE: Associação Brasileira das Indústrias de Óleos Vegetais)

67 This was the conclusion of both Government and NGO analysts at a meeting called by the Government to examine the causes of the dramatic drop in deforestation rate in 2005/2006.


50

against longstanding corruption within its regulatory arm, IBAMA, in the State of Mato Grosso68 — one of the states worst affected by recent deforestation — commanded attention throughout Brazil and abroad. Moreover, the government, specifically IBAMA and the Brazilian military, have recently been carrying out vigorous forward surveillance and enforcement operations, including helicopter raids on illegal loggers, with a resolve not generally evident in the past.

If the military’s role as protector of the Amazon is evolving into a strong environmental protection and enforcement task, the Amazon’s future could be brighter than it may have appeared until now.

The scope for enforcement has been extended by Brazil’s development of very advanced satellite monitoring systems, including real-time detection of deforestation.

From late 2007 and into 2008, however, there was a major surge in the deforestation rate. This was driven very largely by the international commodities boom generating increased demand for agricultural products.

The rapid deforestation rate subsequently declined markedly as the demand for agricultural and other commodities plummeted with the advent of the global financial crisis that began its major impact in late 2008. The ensuing economic downturn and uncertainty could conceivably provide a sufficient pause in rainforest destruction in the Amazon for a more balanced and integrated economic and ecological approach to emerge.

However, there is potentially a very substantial countervailing factor. As in the case of many other governments around the world, the Brazilian Government’s response to actual and prospective national and global downturn in economic activity prominently included the announcement of increased expenditure on infrastructure projects, largely in the Amazon.69

Major infrastructure projects

A number of highly controversial infrastructure projects appear to be set to have a serious impact. In particular, over 300 individual projects, some very big, are comprised in the government’s huge development program, which is funding and promoting many billions of dollars of infrastructure work in and around the Amazon, giving rise to further deforestation and agricultural expansion. This program was generally in place before, but was reinforced by, the government’s response to the global financial/economic downturn.

Important projects include the Inter-Oceanic Highway (now approaching completion),

to provide a very significant transport link through the Brazilian and Peruvian Amazon to the Pacific Ocean, and large hydroelectric dams — notably the highly controversial multi-billion dollar dam projects for the Madeira River and the Xingu River.

68 Arrest of State head of IBAMA and arrest/warrants for over 80 other IBAMA personnel and loggers responsible

for 2 million cubic metres of timber exported illegally with fraudulent documentation over 14 years. 69 ‘Government and private spending on roads, power dams and other projects, which are part of Lula’s so-called

Accelerated Growth Program for 2007–2010, will be increased to 646 billion reals ($281 billion), from the 504 billion reals originally announced in January 2007.’ A Soliani, ‘Brazil to Raise Investment Spending to Spark Growth’, Bloomberg, 4 February 2009.


51

It was largely the lack of success in preserving the Amazon from some very high-impact projects, and deforestation in general, in the face of the power of commercial interests, that led to the 2008 resignation of Brazil’s highly-regarded Minister for the Environment, Marina Silva.

Road construction, in particular, is a primary contributor to deforestation — not only the deforestation required for the route itself but by providing access for destruction and development along the route — to a distance of up to 45 kilometres from the road.70 It has been noted that as a consequence of construction of the 5 000 kilometre Trans-Amazonian Highway in the early 1970s, ‘Brazilian deforestation accelerated to levels never before seen and vast swaths of forest were cleared for subsistence farmers and cattle-ranching schemes.’71

A certain level of development in the Amazon can be seen as necessary or inevitable or both. For example, in providing Brazil’s Asia-destined commodities with access to Pacific Ocean export ports, the Inter-Oceanic Highway can be expected to be of substantial economic benefit to Brazil and opposition to its construction was never likely to be successful.72

In many cases, however, supposed economic benefits of development are much more doubtful. It has been noted, for example, that ‘most deforestation is for cattle pastures that do little for either the national economy or for providing employment to the population’.73

There is a strong risk that short- and medium-term commercial profit may obscure potential long-term adverse economic consequences — for Brazil itself as well as regionally and internationally — of deforestation, forest fragmentation74 and broader ecological disruption.

One important aspect in that regard is the vast water recycling processes within the Amazon rainforest.75 The water vapour they generate provides essential rainfall not only in the Amazon itself but to Brazilian agricultural areas and population centres, such as Sao Paulo, outside the Amazon Basin — and to agricultural and other areas in neighbouring countries. Brazil’s crops alone have an annual value of some $68 billion.76 The potential threat that Amazonian deforestation may pose to agriculture nevertheless appears, at least until very recently, to have been largely disregarded in developmental planning.

Among numerous expressions of concern in relation to the development push, a team of respected Brazilian and international scientists, including leading researchers at Brazil’s

70 Ferreira et al, above n 46, 6 71 Fearnside, n 53, 2. Overall, the great majority of the clearing is done by medium and large ranchers, who hold

89 per cent of the private land in the Amazon. ‘The social cost of substantially reducing deforestation rates would therefore be much less than is implied by frequent pronouncements that blame ‘poverty’ for environmental problems in the region.’

72 If the collateral environmental impacts could be closely confined to the route itself and a very limited number of en route hubs, Brazil could arguably optimise the benefit-to-detriment ratio of the impact of the highway. It is largely for this reason that rail links have been proposed (by successive Environment Ministers, among others) as preferable alternatives to some proposed Amazonian road projects.

73 Fearnside, above n 53, 5. Fearnside goes on to make the point that this lack of substantial economic benefit ‘offers an opportunity to slow deforestation as part of a program for mitigating global warming’ (as to which, see the later section of this article entitled ‘REDD’).

74 Fearnside, above n 5, notes ‘the impact of fragmentation of the formerly continuous forest into small islands that are unable to support viable populations of forest species, including their biological interactions’. See further: WF Laurance and RO Bierregaard (eds), Tropical Forest Remnants: Ecology, Management, and Conservation of Fragmented Communities (University of Chicago Press, 1997).

75 See JA Marengo, ‘On the Hydrological Cycle of the Amazon Basin: A Historical Review and Current State-of-the-Art’ (2006) 21 Revista Brasileira de Meteorologia 1.

76 Fearnside, above n 53. See also: Fearnside, above n 5.


52

National Institute for Research in the Amazon,77 reported in 2001 that their modelling indicated ‘that, under status quo conditions, current efforts to promote conservation planning in the Brazilian Amazon will be overwhelmed by prevailing destructive trends’.78 Subsequently, those trends have largely continued.

A change of approach to Amazonian protection?

Recently, there have nevertheless recently been possible signs of a shift toward a somewhat more balanced approach.

New strategic reserves

As well as the expansion of the ARPA program referred to above, Brazil’s Minister for the Environment announced, at the 2008 Conference of the Parties to the Convention on Biological Diversity in Bonn, that Brazil would be creating three further significant protected areas in the Amazon, comprising an aggregate 26 000 square kilometres, in strategic locations. As well as protecting the highly biodiverse ecosystems within them, the Minister for the Environment affirmed that they ‘close a green circle … to contain the advance of the agricultural takeover of the Amazon rainforest’.79

Deforestation rate cut proposal

In late 2008, during the Poznan Conference,80 the Brazilian Government released its National Plan on Climate Change,81 which announced its intention to cut the deforestation rate from the 1996–2005 ‘baseline’ level of approximately 20 000 square kilometres per year82 (and, consequently, from the 2008 level of 13 000 square kilometres),83 through an interim target of 8000 square kilometres per year (on average) for the period 2010–13, to 6000 square kilometres per year for 2014–17.84

This has been criticised as not going far enough. However, if actually achieved, it can be of far greater benefit than a more ambitious goal that is not achieved. Moreover, the much-sought ‘zero net deforestation’ would be significantly more attainable if that lower rate has been firmly reached.

77 Instituto Nacional de Pesquisas da Amazônia (‘INPA’). 78 WF Laurence, MA Cochrane, S Bergen, PM Fearnside, P Delamônica, C Barber, S D’Angelo and T Fernandes,

‘The Future of the Brazilian Amazon’ (2001) 291 Science 438, 439. 79 ‘Brazil Protects Vast New Areas of Amazon Rainforest’, Environment News Service, 6 June 2008 <http://ens-

newswire.com/ens/jun2008/2008-06-06-01.asp>. 80 The annual Conference of the Parties to the UNFCCC serving as the annual Meeting of the Parties to the Kyoto

Protocol, held at Poznan in December 2008. 81 Government of Brazil, Interministerial Committee on Climate Change ‘National Plan on Climate Change’

(2008). Executive Summary in English is available at <http://www.mma.gov.br/estruturas/imprensa/_arquivos/ 96_11122008040728.pdf>.

82 19 625.4 square kilometres, calculated from National Institute of Space Research figures: above n 64. 83 12 911 square kilometers; the figure for 2007 was similar, namely 11 651 square kilometers: ibid. 84 The targets as calculated and stated in the text have been rounded to the nearest thousand. In the National Plan

on Climate Change, the targets are expressed in percentages. The targets are conditional on ‘existence of national and international resources, both new and additional, including those obtained by the Amazon Fund’. (The Amazon Fund is discussed later in this article.)


53

In that regard, it is important that the planned major step-down in deforestation rate be a stable, structural decrease, rather than simply one more temporary reduction followed by yet another surge when economic pressures revive.

Subject to that consideration, it is encouraging that deforestation of the Brazilian Amazon declined again in 2009 to 7500 square kilometres,85 the lowest level since the commencement of specific annual records, 1988.

How a stable, long-term reduction is to be achieved despite the extensive infrastructure push is nevertheless not clear.

One helpful example, however, may be that, when the pipeline to Manaus (Amazonas) from the huge and controversial gas project at Urucu was eventually approved and constructed (2006 to 2009),86 it was as a road less pipeline, so as not to provide ready access to illegal loggers and others. The international construction firm, Skanska, which participated in building a large stretch of the pipeline, recorded subsequently:

To prevent the pipeline route being used as a conduit for settlers and the extraction of forest resources, the construction of roads was avoided and access along the route is prevented. River barges transported pipeline sections and heavy equipment as close to the route as possible to avoid building permanent roads in the area and any access routes were reforested.87

It may also be useful to note that in late 2008 the government suspended the paving of the major BR-319 highway between Manaus and Porto Velho (Rondonia) so that 13 nearby protected areas could be demarcated. While not preventing all the problems that major road construction generates in the Amazon, the willingness of the government to take that action was encouraging, and will be particularly significant if it indicates a broader governmental willingness to consider, and make, sound modifications to development plans.

Even so, implementing development in a less environmentally damaging way, while clearly and highly desirable, will not eliminate problems caused by the sheer scale, number and, in some cases, nature of major developments.88

Amazonas: Juma Project

As referred to above, various conservation projects, independent of ARPA, are being undertaken with international involvement. One of these is the Juma project in Amazonas, Brazil’s largest state.

Amazonas has so far retained 98 per cent of its forest cover,89 chiefly because the frontier of deforestation and agricultural expansion has been working its way through

85 7464 square kilometres: National Institute of Space Research, above n 64. 86 After being blocked for years by local opposition and refusal of approval by authorities. 87 Skanska, ‘Urucu-Manaus, Brazil’ (Case Study No 26, Skanska, November 2009). The Urucu gasfield development

is a project of by the (largely government-owned) major petroleum corporation, Petrobras. 88 The highly controversial multi-billion dollar Belo Monte Hydroelectric Dam project proposed for the Xingu

River is the salient example. The dam proposal has been reduced in size from the original gargantuan conception but it and its expected impact remain very large and extremely contentious. It nevertheless received environmental approval in February 2010.

89 Government of the State of Amazonas, Amazonas Initiative on Climate Change, Forest Conservation, and Sustainable Development (2007).


54

neighbouring states that have functioned as a buffer. However, highway construction is opening Amazonas to forest destruction.

In contrast to some state governments, the current Amazonas government has long been actively seeking to prevent deforestation.

The State of Amazonas’ forests play a key role in regulating rainfall regimes and climate worldwide. Furthermore, the maintenance of these forests is essential for conserving biodiversity, controlling regional rainfall regime, and securing global climate stability. … These ecosystem services, however, are under severe threat of destruction. … The State of Amazonas is convinced of the need to conserve its forests and it has been implementing a sustainable development policy to reduce deforestation90

Notably, in 2007 the Governor of Amazonas, along with the Governors of three key Indonesian provinces (Aceh, Papua and West Papua), signed a statement declaring a moratorium on logging on land under their control.91 The moratorium was designed to assist in preserving forested land while it is assessed for preservation funding mechanisms.

Moreover, without waiting for the development of an international carbon credit payment system for ‘avoided deforestation’, Amazonas proceeded to establish its own carbon credit system, with committed private international funding for the first 4 years.92 This resulted in the Juma project, which concerns an area of some 6 000 square kilometres of forest facing a very high risk of deforestation, being adjacent to one major highway and crossed by another — an area ‘that would be almost completely deforested under the ‘business as usual’ scenario if the current land use practices in the Amazon region continue.’93

As with ARPA projects, the importance of clear physical boundaries was recognised. The Juma project area is bounded by the Mariepaua River, the Madeira River, the Acari River and the border with federal land.

The Juma project — the first in Brazil to receive international certification for avoided deforestation — has been certified as being in the highest category of project standards.94 The success or otherwise of the project will no doubt be closely observed.

REDD

For some years before the Bali Conference in 2007,95 Brazil — joined by certain other developing countries, in particular, Papua New Guinea and Indonesia — had been proposing the establishment of a fund to compensate developing countries for the costs, including opportunity costs, involved in reducing deforestation.

90 Ibid. 91 ‘The Governors of Aceh, Indonesia, Papua, Indonesia, and Amazonas, Brazil, sign the Forests Now Declaration’,

ForestsNow News, 7 December 2007. 92 Marriott International is providing the initial four-year funding of at least $4 million to the implementing body,

the Amazonas Sustainable Foundation established by the State of Amazonas and the Bradesco Bank. 93 Sustainable Amazonas Foundation et al, ‘The Juma Sustainable Development Reserve Project: Reducing

Greenhouse Gas Emissions from Deforestation in the State of Amazonas’ (Project Design Document, 5 July 2008) <http://www.climate-standards.org/projects/files/pdd_juma_project_v_3_0.pdf> at 7 September 2010.

94 TÜV SÜD Industrie Service, ‘The Juma Sustainable Development Reserve-Project: Reducing Greenhouse Gas Emissions from Deforestation in the State of Amazonas, Brazil’ (CCB Validation Report No 1177277, TÜV SÜD Industrie Service, 30 September 2008) <http://www.climate-standards.org/projects/files/juma/ Validation_Report_Juma_CCBA_30Sep_2008.pdf> at 7 September 2010.

95 The annual Conference of the Parties to the UNFCCC serving as the annual Meeting of the Parties to the Kyoto Protocol, held at Bali in December 2007.


55

For various reasons, including the fact that a reduction in the rate of deforestation, while valuable, does not equate to preservation, the proposal generated only limited international enthusiasm — especially as the formula which was proposed by Brazil was referenced to the high deforestation levels of the 1990s. (Similarly, Indonesia proposed as a baseline the year of its greatest deforestation to date, 2002.)96 This appeared to be apt to result in compensation to Brazil without actual deforestation reduction.

There might be little point in providing vast amounts of scarce conservation funding if doing so amounts to providing cash flow during years when economic circumstances lead to reduced deforestation, only to have deforestation accelerate again in response to a subsequent economic upsurge.

However, the Brazilian proposal and other efforts gave rise to the Reduced Emissions from Deforestation and Degradation (‘REDD’) initiative whose broad outlines were drawn at the Bali Conference.97 (The term ‘REDD-plus’ is now used in the negotiating text, to reflect the inclusion of concepts such as sustainable management of forests, rather than only avoidance of carbon dioxide emissions.)98

The essential idea is, among other things, to fill a glaring gap that was left when the Kyoto Protocol to the United Nations Framework Convention on Climate Change99 was painstakingly negotiated: that, although afforestation and reforestation projects can result in carbon credits under the Kyoto Protocol, there are no such credits for prevention or avoidance of deforestation or of forest degradation. This anomaly exists even though such deforestation and degradation contributes very greatly to worldwide greenhouse gas emissions100 and even though the protection of extant undegraded tropical forests can, as well as avoiding the emission of very great quantities of greenhouse gas, contribute enormously to the preservation of the world’s biodiversity — especially as the areas concerned and their biota and ecological processes would generally be undisturbed, as distinct from areas the subject of afforestation and reforestation projects.

Fundamental differences of proposed approach nevertheless subsisted. The ‘classic’ REDD concept that was the centre of attention at the Bali Conference was primarily focussed on the creation of carbon credits, whereas the Brazilian Government was sceptical of the effectiveness of market-based mechanisms and sought direct international donations for the establishment of a fund to assist Brazil to protect Amazon areas and reduce deforestation.

96 Achievement of actual preservation may be more likely, at least within the same country (or possibly, for large

countries, the same region of the country), by selecting as the baseline the year of lowest deforestation (or at least a year or years of relatively low deforestation) in the last decade or so; the corollary could be a significantly higher rate of compensation for the genuinely-avoided deforestation/degradation.

97 For variations and associated funding mechanisms, see: MJ Sanz, ‘Reducing Emissions from Deforestation in Developing Countries (REDD)’ (Com+ Media Training, UNFCCC Secretariat, Vienna, 29 August 2007).

98 UNFCCC, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, FCCC/AWGLCA/2009/L.7/Add.6 (15 December 2009).

99 Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 148 (entered into force 16 February 2005) (‘Kyoto Protocol’).

100 ‘Land use changes, mainly tropical deforestation, account for roughly 20 percent of global greenhouse gas emissions, a share greater than either the global transport or industrial sectors. In other words, intentional deforestation is doing more to deepen the climate crisis than all the automobiles or factories in the world.’ Nigel Purvis and Erin Myers ‘Conserving the Climate: Scaling-up Global Markets for Forest Carbon’ Resources for the Future, June 2008.


56

Substantial effort has now been directed to transforming the REDD carbon credit concept into a functioning reality. So far, though, the scale of the funds required worldwide101 and other significant difficulties102 that have been identified in relation to the REDD proposal suggest that it may still be some time before a workable system is developed and operative. It has been noted that ‘experience has shown that international negotiations often take years longer than expected. … On climate change, speedy action has proven particularly difficult.’103

Nevertheless, the REDD concept has been the subject of very considerable international focus since the Bali Conference and, in the context of the evolving international situation and with the benefit of the fact that some previous opposition to a REDD component under the Kyoto Protocol has changed to support,104 concrete results may be attainable more swiftly than past inertia would suggest.

As was made abundantly clear at the Copenhagen Conference in 2009,105 the predominant challenge is that of reaching an effective, overall agreement for the period after the initial Kyoto Protocol commitment period (2008 to 2012). If that challenge can be met, it now seems reasonable to anticipate that there will be sufficient international will for the inclusion of some form of REDD. Indeed, by providing substantial benefits to both developed and developing countries, REDD may be an integral part of achieving such an agreement.

Certain individual projects, such as the Juma project, are termed REDD projects — and their number is increasing worldwide — but the general thrust of the REDD concept has been toward establishing an overarching international system which will fund the preservation of forest globally, in particular the biodiverse, carbon-rich tropical rainforests.

In that regard, notwithstanding the caution Brazil had shown regarding participation in an international market-based REDD credit system, the Brazilian position has evolved.106 By the time of the Copenhagen Conference, Brazil was offering definite, though qualified, support.107

101 In respect of Brazil itself, the cost may be less than has been anticipated. See, D Nepstad, B Soares Filho,

F Merry, P Moutinho, HO Rodrigues, M Bowman, S Schwarzman, O Almeida and S Rivero, ‘The Costs and Benefits of Reducing Carbon Emissions from Deforestation and Forest Degradation in the Brazilian Amazon’ (Woods Hole Research Center research paper presented at the Bali UNFCC COP/MOP, 10 December 2007).

102 Difficulties which include, among others, measurement, verification, ‘leakage’ (where conservation of one area of forest results in a different area being destroyed) and permanence or impermanence of the preservation. An interesting perspective is given in PM Fearnside, ‘Saving tropical forests as a global warming countermeasure: an issue that divides the environmental movement’ (2001) 39 Ecological Economics 167. See also R Lyster, ‘The new frontier of climate law: Reducing Emissions from Deforestation (and Degradation)’ (2009) 26 Environmental and Planning Law Journal 417, which, among other things, examines fundamental issues of indigenous concern.

103 Purvis and Myers, above n 100, 8. 104 Once targets for developed countries for the first commitment period (2008 to 2012) under the Kyoto Protocol

were quantified, one key objection to inclusion of avoided deforestation as a ‘Kyoto mechanism’ (ie, a means available to developed countries to continue their own emissions by helping to reduce emissions elsewhere) was that, even if a mechanism could have been devised in the required time frame, it would have achieved no greater reduction in emissions than if it were not included. If a basis for the inclusion of avoided deforestation measures can be factored in before targets are set for the post-2012 period, that objection will not apply.

105 The annual Conference of the Parties to the UNFCCC serving as the annual Meeting of the Parties to the Kyoto Protocol, held at Copenhagen in December 2009.

106 In part, this stemmed from pro-REDD representations from the Governors of the Brazilian Amazon States (and evaluation by Brazilian Government Departments). See REDD and Climate Change Task Force, ‘Report I’ (September 2009) (and annexed letter from the Governors to the President): <http://www.fas-amazonas.org/pt/useruploads/files/relatório_i_força_tarefa__eng14.12__2.pdf>.

107 In particular, Brazil proposed a 10 per cent limit on the extent to which a developed country can use REDD offsets to meet its emissions reduction target.


57

Brazil’s pivotal role in relation to REDD and the tackling of climate change more generally is reflected in the fact that President da Silva was one of the five world leaders108 who, faced with the impasse at the Copenhagen Conference, finalised the negotiation of the Copenhagen Accord.109

The Copenhagen Accord specifically recognised ‘the crucial role of reducing emission from deforestation and forest degradation’ and the parties agreed on ‘the need to provide positive incentives to such actions through the immediate establishment of a mechanism including REDD-plus, to enable the mobilization of financial resources from developed countries.’110

In more immediate and practical terms, as ‘initial public finance towards slowing, halting and eventually reversing deforestation in developing countries’ worldwide, six developed countries111 committed $3.5 billion of ‘fast-start climate change financing for ‘REDD+’ over the 2010 to 2012 period’. They also committed to ‘scaling up our finance thereafter in line with opportunities and the delivery of results.’112

This was an important development and went a considerable way toward maintaining the momentum for a worldwide REDD system. Nevertheless, it is very much only a first step, spread as it is across the developing world, much of which is in great need of substantial finance for institutional capacity-building before forests can be afforded realistic protection.

In the meantime, Amazon and other forests continue to fall.

Amazon Fund

However, Brazil did not abandon its original proposal for a new fund to protect Amazon areas and reduce deforestation with direct international donations — and initial progress in that regard has been surprisingly rapid.

In 2008, more than a year before the Copenhagen Conference, the Brazilian Government’s development bank, National Economic and Social Development Bank,113 established the ‘Amazon Fund’. The government sought donations from developed country governments and from corporations.114 The government’s ambitious aim was and is to raise $21 billion in the fund by 2021.

Government views of the fund include the following:

108 The others being US President Obama, Chinese Premier Wen JinBao, Indian Prime Minister Singh and South

African President Zuma. 109 UNFCCC Draft decision CP 15 Copenhagen Accord FCCC/CP/2009/L.7 (18 December 2009). Though the

Accord was not adopted as an official UN document because of procedural and other objections by some countries, the UNFCCC COP formally decided to ‘take note of’ the Accord. In effect, it comprised the main documentary outcome of the Copenhagen COP, although (a) drafting progress had been made on other texts, especially in respect of ‘REDD-plus’, and (b) the decision of the Subsidiary Body for Scientific and Technological Advice (‘SBSTA’), which was adopted by the COP, provides methodological guidance deriving from its substantial progress, over the preceding year, in addressing key practical issues.

110 Ibid [6]. REDD-plus was the only specific to be the subject of such particular attention in the Copenhagen Accord. It was also very arguably the matter on which most progress was made at, and in the lead-up to, the Copenhagen COP.

111 USA, Norway, Japan, United Kingdom, France and Australia. 112 Joint statement on behalf of the governments concerned: Joint statement ‘Agreement on funding for

deforestation’ (UK Government Press Notice, 17 December 2009). 113 Banco Nacional de Desenvolvimento Econômico e Social. 114 The government has specified that such donations will not be eligible for carbon credits under any REDD carbon

credit scheme that may eventually be put in place.


58

It’s better for the country’s image to do things right, so we can walk in international forums with our heads held high.115

At the same time, the Brazilian leader also insisted that the Amazon’s preservation was the responsibility of Brazil. ‘We ... want the sovereignty we hold over Amazonian territory and the decisions that are made in this region to be respected’.116

There’s a real problem of deforestation that's of great interest to the world, and some countries have decided to step up to the plate and help us solve it.117

The fund is a vehicle by which foreign governments can help support our initiatives without exerting any influence over our national policy. We are not going to trade sovereignty for money.118

It has been suggested that statements about sovereignty and non-interference may now be directed more toward reassurance of the Brazilian people than to actual Government perception of threat, and that the President’s ‘embrace of the idea that the world as a whole has an interest in the Amazon is a sign of his country’s increasing self-confidence’.119

At the embryonic stage, the lack of detail as to what such funding would achieve carried the risk that donations might be hard to obtain — especially donations of the size the government is hoping for. Norway nevertheless promptly committed to contributing an initial $100 million.120

The Office of the Prime Minister of Norway, Jens Stoltenberg, stated:

Under President Lula’s leadership Brazilian authorities have launched a major campaign against deforestation. This has led to a strong reduction in deforestation over the last years. President Lula has now launched a plan to further increase these efforts in the period 2008–2011. Norway’s contributions to the Amazon Fund will go to the realisation of this plan.121

Norway’s action and alacrity immediately gave the Amazon Fund some credibility. Norway, moreover, announced that it would continue its funding up to $1 billion dollars by 2015 — provided the fund achieves demonstrable reduction in deforestation.122

The response of President da Silva was encouraging:

Lula welcomed the donation and said it increased the pressure on Brazil to deliver. ‘This increases our responsibility to do what we are already doing today, better’, he said.123

115 BBC ‘Brazil launches rainforest fund’ 1 August 2008 in United Nations Environment Programme The

Environment in the News, 4 August 2008 (President da Silva). 116 Ibid (Minister for Strategic Affairs). 117 J Goodman, ‘Brazil Creates $21 Billion Fund to Slow Amazon Deforestation’, Bloomberg, 1 August 2008. 118 BBC, above n 115 (Minister for Strategic Affairs). 119 ‘Paying for the forest’, The Economist, 9 August 2008 120 Ibid. (The kroner-designated amount — NKr700,000 — subsequently equated to substantially more than

$100 million.) 121 Norway Mission to the UN, ‘Norway Offers up to 1 Billion to Save the Rainforest’ (Prime Ministerial Press

Release 141/08, 16 September 2008). 122 Ibid. ‘Payments to the Fund in a particular year will depend on the difference between emissions from

deforestation in the previous year and the reference level. The reference level will be the average for the current ten-year calculation period, and will be updated every five years. If emissions in a particular year are higher than the reference level, no payment will be made to the Fund in the subsequent year.’ Office of the Prime Minister of Norway, ‘Facts about the rain forest and the Amazon Fund’ (News Story, 16 September 2008).

123 F Exman and AN da Costa, ‘Norway pledges $1 billion to Brazil Amazon fund’, Reuters, 16 September 2008.


59

Moreover, the Amazon Fund approach appears to have received favourable attention even from some significant Brazilian commercial interests that have traditionally been seen as promoters of deforestation.124

Brazil’s actions from here on appear likely to be the predominant determinant of the extent to which the fund attracts donations and achieves results.125

It has been noted that:

What is particularly ingenious about the Norway response is that it comes with no prescription — no recipe for how to achieve the reduction … Unlike previous large-scale conservation programs, such as the G7 Pilot Program for the Protection of Brazilian Rainforests, the Norwegian response is ‘hands off’. Now, the ball is in Brazil’s court. The key question is whether or not the Brazilian government can design a process that allows for significant engagement of Amazon forest stakeholders, and effective measures to slow the main drivers of deforestation, to achieve the reductions.126

Conclusion

Coupled with the impacts of a changing climate, the extensive construction of roads, dams and other infrastructure (and the logging and agricultural clearing such infrastructure promotes) may gain such momentum as to result in the destruction of much of the Brazilian Amazon rainforest and the fragmentation and isolation of many of the forested areas that remain.

That risk and the fluctuating but high levels and cumulative nature of deforestation over many years have highlighted the need both for large-scale protected areas and for approaches that provide substantial financial incentives for broader forest conservation.

Sound modification of infrastructure planning so as to accord with such conservation would be highly beneficial. The Amazon Fund — and any other REDD arrangement that may be developed in the future and acceptable to the Brazilian Government — could potentially be conducive to such modification.

In respect of concepts of national rights and international responsibilities in relation to the Brazilian Amazon, there has been a clash of principle over the years but more recently there appears to have increasingly been considerable convergence in practice.

If that convergence is encouraged by functional national legal structures and by international support and mutual co-operation, coupled with strong enforcement by the Brazilian authorities, the rational preservation of much of the Brazilian Amazon may be feasible, to the benefit of Brazil, the South American region and the world in general.

124 See, for example, the comments of Carlo Lovatelli, president of ABIOVE (n 66) and of the Brazilian Agribusiness

Association, as quoted in: C Caminada and M Smith, ‘Brazil Amazon-Conservation Fund May Get $3 Billion in Donations’, Bloomberg, 29 January 2009.

125 The first projects to receive funding, of an aggregate $40 million, from the Amazon Fund were announced in late 2009. Moreover, the reduction in the deforestation rate in the Brazilian Amazon since the Amazon Fund was announced has resulted in Norway making a further contribution for 2010: ‘Our financing of the fund is resultsbased and given the reduction, we will increase our contribution to the Amazon Fund to USD 150 million for 2010. It’s very encouraging that deforestation continues to decline in the Amazon’: Prime Minister Stoltenberg. Office of the Prime Minister of Norway, ‘Norway Steps up Amazon Contribution after Proven Results in Reducing Deforestation’ (Press Release, 16 December 2009).

126 D Nepstad, of the Amazon Environmental Research Institute, quoted in: R Butler, ‘How to save the Amazon rainforest’, Mongabay.com, 4 January 2009 <http://news.mongabay.com/2009/0104-saving_the_amazon.html>.

international involvement in preservation of the …biological diversity, greater fire-proneness and...

Documents