Global warming is an undeniable phenomenon and for decades, scientists have pointed out evidence that the climate-warming trends are very likely caused by human activities. Nowadays, despite the urgency of coordinated global action to prevent and tackle the environmental crisis, we can observe a lack of seriousness on the part of nation states worldwide. A clear example of such neglect is the Brazilian government’s approach to the recent bushfires in the Amazonian forest, since the government has not only failed to prevent this environmental harm but has also acted irresponsibly in responding to the crisis. In this context, this article will briefly analyze (i) the human rights impacts caused by massive bushfires, (ii) the standards for national liability in case of transnational environmental harms, and (iii) whether Brazil can be held liable for human rights violations caused by the 2019 bushfires.
Bushfires as a human rights problem
The international community is moving toward recognizing the human right to a sustainable environment, mainly because the environmental rights are intertwined with the full enjoyment of many other traditional human rights, such as health, food and sanitation. As an example of the progress for such recognition, within the United Nations, the UN Special Rapporteur on Human Rights and the Environment, pursuing the Human Rights Council resolution 37/8, proposed to the General Assembly to recognize “the human right to a safe, clean, healthy and sustainable environment”. Moreover, according to the UN environment program, the right to a healthy environment “has gained constitutional recognition and protection in more than 100 States”, demonstrating the extension of legal protection to environmental rights in national and international law.
However, despite of the importance of the environmental agenda, some recent catastrophes have shown that the international and national efforts are not enough to protect the world’s ecosystem, for instance, in the Amazonian bushfires. Only in 2019, Brazil’s National Institute for Space Research (INPE) registered more than 89.178 fires in the largest tropical rainforest in the world, and some specialists estimate that more than 228 megatons of carbon dioxide were released into the atmosphere. Because of the magnitude of the environmental harm, the loss of a great area of forest due to the massive bushfires contributed to a global violation of the human right to a sustainable environment, especially considering that the bushfires can boost the global climate change and impact many other countries indirectly.
Legal standards for state liability in cases of transnational environmental harm
State responsibility for transboundary environmental harm is a very controversial topic, considering the political interests involved, the practical issues related to the identification of such harms and the penalties that might be imposed. Notwithstanding the efforts of the Stockholm Declaration (1972) and the Rio Declaration (1992) to call “for further development of the law bearing on environmental liability and compensation”, the frameworks conventions have found little or no acceptance in the practice of states. Consequently, there is a long struggle, in public international law, to develop standards of liability for global environmental harm, according to Professor Robert Percival.
Considering the controversy on the legal consequences for transboundary environmental harm, some scholars developed theoretical approaches for state liability. According to professor Jaye Ellis, for instance, there are three main theoretical approaches for state liability in case of transboundary consequences of environmental harm: (i) liability ex delicto, in which states are responsible for environmental harm if they do not adopt reasonable measures and policies to prevent the damage; (ii) liability sine delicto stricto sensu, under which countries could be held liable even in the absence of fault or negligence; and (iii) liability sine delicto lato sensu, where “transboundary harm may be permitted as long as it is reasonable and equitable”.
In the specific case analyzed herein, the bushfires pose more difficulties on defining and determining the state liability. Among some issues, we can mention the difficulty of proving a causal link between a state’s actions or negligence and the environmental harm (since forest fires can be caused by private entities), the identification of the state or organization that should be compensated for the damage and the methodology of calculation of an eventual compensation.
Can Brazil be held liable for the Amazonian bushfires?
Notwithstanding the difficulties of holding a state liable for the transboundary environmental harm, we can note, in the case of the Amazonian bushfires, that the government’s actions clearly contributed to the environmental catastrophe: since Mr. Jair Bolsonaro began his presidency, he adopted measures to weaken the land rights of indigenous people and to cut down policies to combat illegal logging.
As examples of other problematic policies, under his administration, according to the New York Times, the main environmental agency’s budget diminished by 24 percent and its enforcement actions fell by 20 percent during the first six months of 2019, compared to 2018. Moreover, Bolsonaro, who was previously fined for violating environmental laws, has not only contradicted his own government figures and ignored the spike of deforestation, but also created a regulatory body to forgive or to revise environmental fines, since, in the president’s words, the so-called “industry of fines” was complicating the farmer’s activities and the progress of the country.
The weakening of environmental policies and the anti-environment speech of the president likely contributed to the bushfires crisis. Even after the catastrophe was in place, the governmental policies adopted to mitigate the impact on the Amazonian fauna and flora can be criticized, since, for instance, Bolsonaro rejected the G7 financial offer after a discussion with Mr. Macron and accused NGOs, without proof, for setting fires in the forest.
In this context, in the light of Professor Jaye Ellis above-mentioned theoretical approaches, Brazil could be held liable for the global impacts of the bushfires regardless of which legal standard we use. This is because the Brazilian government did not adopt sufficient reasonable measures to prevent or diminish the impact of the bushfires, and the environmental harm is far beyond a “reasonable and equitable” damage.
Having defined a possible responsibility of Brazilian government, the determination of the sanctions is a much more complicated topic, that, obviously, will not be exhaustively discussed in this short article. However, some possibilities are (i) the determination of a system of fines, that would be directed, for instance, to NGOs or international organizations that act to prevent global warming, and (ii) the adoption of preventive measures, such as the imposition of mandatory environmental policies, to protect the local fauna and flora, in light of the precautionary principle of international law.
In conclusion, taking into account that environment protection is a huge concern to the whole international community and considering the global consequences of environmental harm, it is important that international organizations closely monitor the environmental policies adopted in national legislations, in order to act preventively and to apply sanctions when they are required. In the case of the Amazonian environmental crisis, the government’s action (or negligence) clearly contributed to the bushfires, so the country should be held liable for its actions. However, due to the difficulties of settling the penalties, the possibilities must be duely analyzed not only to punish the country, but also to prevent future environmental harms.