Regional Cooperation in Amazonia : A Comparative Environmental Law Analysis [1 ed.] 9789004313507, 9789004313491

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Regional Cooperation in Amazonia

International Environmental Law VOLUME 13

The titles published in this series are listed at brill.com/iel

Regional Cooperation in Amazonia A Comparative Environmental Law Analysis By

Maria Antonia Tigre

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Tigre, Maria Antonia, author. Title: Regional cooperation in Amazonia : a comparative environmental law analysis / by Maria Antonia Tigre (Cyrus R. Vance Center for International Justice). Description: Leiden ; Boston : Brill/Nijhoff, [2017] | Series: International environmental law ; volume 13 | Includes bibliographical references and index. Identifiers: LCCN 2017027642 (print) | LCCN 2017027787 (ebook) | ISBN 9789004313507 (E-book) | ISBN 9789004313491 (hardback : alk. paper) Subjects: LCSH: Environmental law--Amazon River Region. | Environmental policy--Amazon River Region. | Environmental impact analysis--Law and legislation--Amazon River Region. | Deforestation--Control--Amazon River Region | Organização do Tratado de Cooperação Amazônica. | Treaty for Amazonian Cooperation (1978) Classification: LCC KH642.A46 (ebook) | LCC KH642.A46 T54 2017 (print) | DDC 344.804/6--dc23 LC record available at https://lccn.loc.gov/2017027642

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1873-6599 isbn 978-90-04-31349-1 (hardback) isbn 978-90-04-31350-7 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

“We do not inherit the land from our forefathers; we borrow it from our children” A Sioux Proverb

…

To my father, the dreamer And to Digo and Maneco, who echo his dreams.

⸪

“Se escrevesse agora esboçaria miniaturas do caos incompreensíveis e tumultuárias, uma mistura formidável de vastas florestas inundadas de vastos céus resplandecentes. Entre tais extremos está, com as suas inumeráveis modalidades, um novo mundo que me era inteiramente desconhecido … Além disso, esta Amazônia recorda a genial definição do espaço de Milton: esconde-se em si mesma. O forasteiro contempla-a sem a ver através de uma vertigem. Ela só lhe aparece aos poucos, vagarosamente, torturantemente. É uma grandeza que exige a penetração sútil dos microscópios e a visão apertadinha e breve dos analistas: é um infinito que deve ser dosado.”1 (If I were to write now, I would sketch out miniatures of the incomprehensible and tumultuous chaos, a formidable mixture of vast flooded forests and vast resplendent skies. Between these two extremes lies, in its innumerable modalities, a new world that was entirely unknown to me… Furthermore, this Amazon reminds me of Milton’s genial definition of space: it hides inside itself. The outsider swoons and contemplates it without seeing it. It appears to him little by little, slowly, tantalizingly. It is a greatness that demands the subtle penetration of microscopes and the narrow and concise vision of specialists: it is an infinity that must be dosed.)

⸪

1 Letter from Euclides da Cunha to Artur Lemos. (Correspondence No. 269). Euclides da Cunha, Correspondência de Euclides da Cunha (Walnice Nogueira Galvão and Oswaldo Galotti, eds., 1997). Translation from Rex P. Nielson, Ecocritical Thought in Euclides da Cunha’s Correspondence and Writings about the Amazon in 16 Hispanic Issues On Line, 23–24 (Fall 2014).

Contents Preface xi Acknowledgments xvi List of Illustrations xx Abbreviations and Acronyms xxii 1 Introduction 1 1.1 Geography of Amazonia 4 1.2 How to Define Amazonia 12 1.3 About This Book 25 2 History of Amazonia and Amazonian Deforestation 35 2.1 Occupation before Colonization 36 2.2 European Colonization 38 2.3 Independence 41 2.4 Military Regimes and Amazonian Occupation to Protect Borders 44 2.5 Reestablished Democracies 44 2.6 Conclusion 45 3 Threats to the Amazon Rainforest: Deforestation and Climate Change 48 3.1 Deforestation 49 3.2 Causes of Deforestation 54 3.2 Climate Change and Amazonia 66 3.4 Emissions in Amazonia 70 3.5 Conclusion 73 4 Early forms of Regional Cooperation: From Bilateral Agreements to Regional Integration 76 4.1 International Boundaries, Free Navigation, and Border Security 77 4.2 Environmental Agenda at the Global Level 79 4.3 Bilateral Agreements and the Idea for Binational Parks 83 4.4 Foundations of Regional Cooperation 84 4.5 Negotiations for an Amazon Club 87 4.6 Conclusion 93

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5 First Period of Cooperation within the act’s Framework (1978–1989): The Defensive-Protectionist Phase 95 5.1 Principles of the ACT 98 5.2 Territorial Scope of the ACT 106 5.3 Duration, Reservation and Dispute Resolution 108 5.4 Member Countries’ Rights 110 5.5 Member Countries’ Duties 110 5.6 Ratification 113 5.7 Institutional Structure of the act 114 5.8 Initial Development of Cooperation 119 5.9 Developments in International Forest Law 128 5.10 Conclusion 136 6 Second Period of Cooperation within the act’s Framework (1989–1994): Boost and Political Strengthening 139 6.1 1989 Manaus Declaration 141 6.2 1992 Manaus Declaration 143 6.3 1992 United Nations Conference on Environment and Development (unced), Rio de Janeiro 147 6.4 Forest Certification 154 6.5 Institutional Development 155 6.6 Conclusion 159 7 Third Period of Cooperation within the act’s Framework (1995–2002): Institutional Maturity 161 7.1 Institutional Development 164 7.2 The Amazon Cooperation Treaty Organization 174 7.3 Financial Mechanism and External Assistance 178 7.4 Environmental Agenda 180 7.5 Developments in International Forest Law 195 7.6 Conclusion 207 8 Fourth Period of Cooperation within the act’s Framework (2002–2009): Institutional Visibility 213 8.1 Institutional Development 215 8.2 The 2004–2012 Strategic Plan 222 8.3 Implementation of the Strategic Agenda 230 8.4 Institutional Crisis 238 8.5 Environmental Agenda 242

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8.6 Developments in International Forest Law 261 8.7 Conclusion 270 9

Fifth Period of Cooperation within the act’s Framework (2009–2017): Revitalizing the acto 272 9.1 Relaunch of the acto 275 9.2 Strategic Agenda of Amazon Cooperation (aeca) 289 9.3 Implementation of the Strategic Agenda 304 9.4 Environmental Agenda 311 9.5 Developments in International Forest Law 335 9.6 Conclusion 348

10

Critical Analysis of the act/acto 353 10.1 Should Forests be Regulated at the Regional Level? An Analysis of Forest Regulation at the Global, Regional, and National Levels 357 10.2 Is the acto the Appropriate Forum? 362 10.3 How Can the acto Achieve Tangible Results? 379 10.4 Experience from Brazil 386 10.5 Conclusion 389

11

Environmental Protection 393 11.1 Gaps in Regional Cooperation 395 11.2 Substantive Right to the Environment 400 11.3 Individual Duty to Protect the Environment 418 11.4 State’s Duty to Protect the Environment 421 11.5 Balance between Economic Development and Environmental Protection 425 11.6 Constitutional Protection of the Amazon Rainforest 428 11.7 Conclusion 431

12

Protected Areas 437 12.1 Protected Areas and Indigenous Territories in Amazon Countries 442 12.2 Deforestation in Protected Areas and Indigenous Territories 446 12.3 The Case for a Regional Effort for Protected Areas 449 12.4 Existing Regional Approaches for Protected Areas 451 12.5 Brazil’s Amazon Region Protected Areas Program (Arpa) 456 12.6 Transboundary Protected Areas (tbpa) 465

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12.7 Privately Protected Areas 476 12.8 Conclusion 487 13

Financial Mechanisms 491 13.1 Colombia’s Amazon Vision 495 13.2 Brazil’s Amazon Fund 497 13.3 Guyana-Norway Partnership 500 13.4 Ecuador’s Yasuní-itt Initiative 504 13.5 Ecuador’s Socio Bosque Program 509 13.6 Conclusion 513

14

Stakeholders in Amazonia 516 14.1 Relevance of Stakeholders 517 14.2 Environmental Institutions in Amazon Countries 522 14.3 Amazonian Research Institutions 539 14.4 National Institutions Participating in Regional Cooperation 540 14.5 Participation of Third Parties and the Role of Multiple Stakeholders 548 14.6 Conclusion 550

Appendices Appendix 1: Amazon Cooperation Treaty 555 Appendix 2: Protocol of Amendment of the Amazon Cooperation  Treaty 561 appendix 3: Declarations of Presidents of Amazon Countries 562 Index 576

Preface How can we understand the vast landscape of the Amazon Rivers? The biodiversity of this unique, international watershed is extraordinary. Its natural resources are the pride of several nations. Its hydrology creates its own weather and rainfall. Its cultural diversity has a depth and variety unmatched across the Earth, embracing indigenous peoples as well as traditional communities of immigrants and modern human settlements. The Amazon forests are lungs for the Earth, as well as for inhabitants of South America. Exploring the Amazon region has produced legendary exploits, most remarkably the life work of Candido Mariano da Silva Rondon, or the expedition of Theodore Roosevelt down the River of Doubt.1 Areas still remain unknown to science or human curiosity. Amazonia also is producing new legal systems for its shared stewardship. The nations of South America that embrace the historic basin of life have taken it upon themselves to fashion a legal stewardship arrangement for their shared Amazonia. In this book, Maria Antonia Tigre evaluates this historic and rather unique international agreement for the first time. Her study comes at an opportune time. Now that the nations of the Amazon basin have agreed on their framework of regional law, the context exists to fashion international cooperation to define sustainable development of Amazonia. With the impacts of climate change being experienced in South America, as in other regions, States need to collaborate on both adaptation to new environmental conditions and on measures to stabilize the climate, such as the mitigation of greenhouse gas emissions by preserving peatlands and abating greenhouse gas emissions. The mandate for the implementation of this agreement is found in Brazil’s extraordinary leadership that has produced global inter-governmental consensus about sustainable development. The adoption in 2015 of the United Nations Sustainable Development Goals2 provides a policy context of international soft law to guide States as they implement the Goals in Amazonia. The agreement for cooperation across the international Amazon basin evolved during the conceptualization and elaboration of the concept of sustainable development.

1 Carolyn Millar, The River of Doubt – Theodore Roosevelt’s Darkest Journey (2005). 2 United Nations Sustainable Development Goals, at https://sustainabledeveloopment.un.org.

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In 1992, Brazil hosted the “Earth Summit,”3 and all nations in attendance agreed upon Agenda 21, an action plan to build sustainable development.4 It is fitting that the Secretariat for the Amazon cooperation treaty is situated in Brasília, at the heart of the both the Amazon basin and in the capital of the nation that has sustained global negotiations that have produced agreement on the meaning of “sustainable development.” Environmental stewardship was defined in Rio de Janeiro at the 1992 “Earth Summit,” the un Conference on Environment and Development (unced) in the recommendations of Agenda 21. The concept had earlier been articulated in Our Common Future, the report of the un World Commission on Environment & Development.5 Agenda 21, and the principles of the accompanying Rio Declaration on Environment and Development were reaffirmed in Johannesburg in 2002, at the un World Summit on Sustainable Development, adding important new recommendations on energy efficiency and on the alleviation of poverty.6 In 2012, these global policies were reaffirmed in “The Future We Want,” the outcome of the un’s rio + 20 Summit meeting in Rio de Janeiro on the 20th anniversary of unced. This set the stage for the negotiations leading to the adoption in 2015 of the un Sustainable Development Goals (sdgs). Goal 15, for example, requires States to “protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests … and halt biodiversity loss.” Nations have now confirmed that the environment must be treated as an integral part of economic and social development. Like Our Common Future, Agenda 21 and the sdgs embraced the integration of environment with development to become “sustainable development.” The concept was defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” The variable success 3 United Nations Conference on Environment and Development, Rio de Janeiro (unced), un Doc. A/CONF.151/26 (1992). The traveaux préparatoires for unced are collected and published in five volumes, N.A. Robinson, Editor, Agenda 21 & The unced Proceedings (Oceana Publications, 1993). 4 Agenda 21, un Doc. A/CONF. 151/26 (1992). 5 un World Commission on Environment and Development (Brundtlund Commission report), Our Common Future, published by Oxford University Press, 1987, and has been continuously in print since then. The Commission’s work was chaired by Norway’s Prime Minister, Gro Harlem Brundtlund, and the secretariat for the Commission was led by James MacNeil of Canada. MacNeil received the Elizabeth Haub Award for Environmental Diplomacy for his work that produced that extraordinary report. 6 Johannesburg Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development, (wssd), un Doc A/CONF. 199/L-6 rev. 2 (4 September 2002); reprinted in N.A. Robinson, Strategies Toward Sustainable Development: Implementing Agenda 21 (Oxford University Press, Oceana Division, 2004) at pp. 757 et seq.

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of the world’s previous development efforts motivated the negotiators who agreed on Agenda 21: Paragraph 1.1. “Humanity stands at a defining moment in its history. We are confronted with a perpetuation of disparities between and within nations, a worsening of poverty, hunger, ill health and illiteracy, and the continuing deterioration of the ecosystems on which we depend for our well-being. However, integration of environment and development concerns, and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together we can – in a global partnership for sustainable development.” It is worth recalling that in 1987, Our Common Future7 recommended the r­ obust elaboration of environmental law, and included an appendix of legal principles that needed to be put into operation. Five years later the progressive ­development of environmental law was also endorsed when Agenda 21 called on each nation to build up its national laws for environment and development,8 and in Chapter 28 and 29 called for all nations to enhance international law and organization.9 The Amazonian cooperation agreement is a product of this encouraging consensus found in Agenda 21. Implementation of sustainable development policies and laws have been gradual. Much more needs to be done. Even in 1992, this dimension of international law was unclear, as the duty to invest in sustainability was not precisely defined, and its meaning was not elaborated in the document.10 The ­financial commitments needed to build the capacity for providing a legal foundation for sustainable development were stripped from the text of Agenda 21.11 Even when the nations met in Monterrey, Mexico,12 to pledge the funding for 7 8 9 10 11

12

See World Commission on Environment and Development, Our Common Future, Oxford 1987, in Annex 1. Agenda 21, Chapter 8. Agenda 21, Chapter 28, on International Law and Chapter 29 on International Organizations. Agenda 21, Chapter 8, paragraph 8.19 and 8.20. See the edition of Agenda 21 edited for iucn as iucn’s Environmental Law & Policy Paper No. 27 in 1993, which retained the estimates of financial commitments needed to implement each of the recommendations in Agenda 21. N.A. Robinson, Editor, Agenda 21: Earth’s Action Plan (Dobbs Ferry, ny, Oceana Publications, 1993). Monterrey Consensus of the International Conference on Financing for Development and Follow-up Report, un Doc. A/CONF. 198/11 (2002), reproduced in N.A. Robinson,

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­implementing Agenda 21, the pledging conference turned out to be mostly symbolic, since much of the funding pledged never was delivered. So, it is not surprising that the States of the Amazon Basin have yet to agree on how best to invest in sustaining the terrestrial ecosystems that they share. However, international cooperation under the 2015 Paris Agreement and the United Nations Framework Convention on Climate Change,13 as well as the ­progressive development of international legal obligations under the u.n. Convention on Biological Diversity,14 both landmark multilateral environmental agreements, are prescribing the road map for Amazon basin States when it comes to cooperation to protect the Amazon’s terrestrial ecology. The legal realm of sustainable development evolves and will continue to evolve.15 ­Prescriptions for doing so, for instance, may be found in the annual Environmental Law ­Colloquia of the iucn Academy of Environmental Law,16 at which is gathered an epistemic community of legal scholars who understand the need to develop the doctrines and processes of a body of ecologically sustainable law. Scholars in South America need to study and collaborate to apply sdgs to the conditions in the Amazon basin. Studies need to examine economic e­ xternalities and factor these into development programs within each nation’s socio-­economic systems. The treaty examined in this book explores the legal foundations for integration of the processes of environment and development within the legislation of each nation and political subdivisions within the Member States. Notwithstanding the aspirations for realizing sustainable development, treaty systems such as this one for the Amazon are still plagued with doubts and even resistance. Despite the work of such bodies as the Business Council for Sustainable Development17 and the World Environment Center,18 there Strategies Toward Sustainable Development: Implementing Agenda 21 (2004) at p. 655, et seq. 13 unfccc, 31 i.l.m. 849 (1992). 14 It is worth recalling that the initial draft of the Convention on Biological Diversity was prepared by members of the iucn Commission on Environmental Law and the iucn Environmental Law Centre; see Barbara Lausche, Weaving a Web of Environmental Law, iucn 2008. 15 See N.A. Robinson, “The Law of Sustainable Development” 1996 Pace Environmental Law Review 507; see http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1378&conte xt=lawfaculty. 16 See www.iucnael.org. 17 See Stephan Schmidheiny, Changing Course: A Global Business Perspective on Development and the Environment, Business Council for Sustainable Development, 1992. 18 The World Environment Center began in 1974, at the behest of the un Environment Programme’s Executive Director, Maurice Strong, to build understanding and cooperation between environment ministries and multinational companies. See www.wec.org.

Acknowledgments

xv

remain governmental and business interests who oppose environmental law reforms on the supposition that they will harm or retard economic development. These perspectives have prevented the agreement of other international legally-binding agreement on the stewardship of the Earth’s remaining forests, or their reforestation.19 The United Nations Forum on Forests, convened annually each spring under the auspices of the un General Assembly, has made scant progress since the Rio Earth Summit has failed to reach any legally-­binding agreement on forests.20 The un Permanent Forum on Indigenous Issues has been encouraged by the General Assembly’s adoption of the un Declaration on the Rights of Indigenous Peoples,21 a process that was also greatly advanced by unced. The un General Assembly now convene a high level session each July to assess the progress made in attaining the sdgs. The Amazon States have an opportunity to demonstrate regional and international and inter-­generational leadership in this shared global mandate. May I commend this study to all those engaged in fostering sustainable development law and policy. It is a fine study, which opens awareness of how one region has been collaborating to build a shared vision of resilience and sustainability. The Amazon – and all who love this vast place – are indebted to Maria Antonia Tigre for her initiative in completing this study. Nicholas A. Robinson*

19 20

21 *

A Non-legally binding Agreement on all types of forests was negotiated in 1992. The United Nations Forum on Forests produced a more substantial instrument in 2007 Non-Legally Binding Instrument on all types of forests in April 2007. It was adopted by the un General Assembly (Resolution 62/98) in December 2007; see http://www.un.org/ esa/forests/pdf/ERes2007_40E.pdf. un Declaration on the Rights of Indigenous Peoples, unga Res.61/295 (13 September 2007). University Professor for the Environment, the Elisabeth Haub School of Law at Pace University (New York) and former Chair of the Commission on Environmental Law of the International Union for the Conservation of Nature (iucn).

Acknowledgments It is good to have an end to journey toward; but it is the journey that matters, in the end.1 The quote from Ursula K. Le Guin perfectly represents the way I feel as I finish writing this book. While the feeling of holding 600 pages written by me is indescribable, it does not compare to what I gained and learned along the way. This book represents a journey that started almost 10 years ago. When I was 22 years old, I completed a summer course at the London School of Economics and Political Sciences (lse). As my final paper for a course in Globalization and the Environment, I wrote about the internationalization of the Amazon rainforest. The subject came to me in mysterious ways, as I had no previous interest in the region. But it was trendy at the time, and as a law student with a great interest in environmental law, and a Brazilian, it made sense to write about the “lungs of the world”. For many years, that paper remained just that, and I quickly forgot about the subject. Yet, Professor Robert Falkner, who taught me that course and likely does not remember me, influenced greatly what was to come. Four years after lse, I used that same paper as my writing sample for admission to an ll.m. program at the Elisabeth Haub School of Law at Pace University. I was accepted, and that paper somehow shaped my academic career. A couple of factors contributed to the persistence of the topic of Amazonia as my choice of research subject. In an environmental practicum class on the United Nations system, another professor, Ambassador Robert Van Lierop, introduced me to an Ecuadorian minister then in charge of the Yasuní itt Initiative, a brilliant project that sought financial contribution from other countries for the country to forfeit its sovereign right to exploit oil reserves in its share of ­Amazonia, thus avoiding additional greenhouse gas emissions. That project left me in awe, and although the country sadly later reversed it, became the ­basis for a paper written for a class on comparative environmental law, taught by Professor Nicholas Robinson, which focused on Ecuador. The paper developed into a thesis. The thesis analyzed the Amazon Cooperation Treaty Organization and compared forest law in Bolivia, Brazil, and Ecuador. Professor Robinson, my thesis supervisor and greatest supporter, constantly reinforced the need to expand it, and publish it. And this is how this book was born. My biggest thank you is therefore to him. Exhausted after months focused on the thesis, I did not think I had the strength to continue researching and 1

Ursula K. Le Guin, The Left Hand of Darkness (1969).

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writing about the Amazon rainforest. To Professor Robinson, who, with his unlimited knowledge, kindness and encouragement, gave me the boost I needed to keep going. His support was endless: from a million ideas, to drafts revisions, fresh perspectives, introduction to publishers, and a lot of help in between. I know he has shaped my career, and therefore who I am. For that, I will be eternally grateful. Several other professors have also been extremely helpful along the way. From my professors at puc-Rio, where my passion for environmental law was born more than a decade ago, to many others at Pace, where it was recently cemented. Professor Katrina Kuh, from Hofstra Law School, and Erin Daly and Jimmy May, from Delaware Law School, have molded my research skills tremendously, and expanded the reach of my knowledge. As a visiting scholar at both schools, I learned valuable lessons, and the skills strengthened then are present in every page of this book. Through a lot of kindness and generosity, they gave me a start in an academic career. To my colleagues at the Cyrus R. Vance Center for International Justice, who have been a daily part of this endeavor. To Susan Kath especially, who is the best “boss/colleague” I ever had. She became a friend whenever I needed one, and her daily support has meant the world. Thank you for sticking with me, and for not letting me quit. Thank you for the endless talks and support, especially in the last weeks of writing. Since we are talking about revisions, there are several other people who have been remarkably helpful during this process: Jimmy May, Randall Abate, Katrina Kuh, Erin Daly, Clea Bowery, and Brenda Kombo. With agendas that were always full with their own academic writings and teachings, they managed to give me some of their own time to read through earlier drafts of a few chapters. To Beatriz Garcia, who not only inspired a lot of the research done here, through a book written by her which I read over and over, but also kindly agreed to look at some chapters without ever having met me in person. This book could also not have been written without the help of some very talented graduate students, who assisted me with specific research: Teodora Sidorova, Patricia Diaz Quijano, and Meg Cirilo. And, especially, to Laura Mott, who accompanied me in the last few months of this work, and met me weekly to discuss the new developments of International Forest Law. I sincerely appreciate your effort and passion, and am forever grateful for making this project yours as well. Much of this book’s success also comes from the incredible encouragement I have always received from my family. To my brother Digo, who always supports me, giving me strength, and reminding me to be patient, that my dreams will eventually come true. You were right, as always. To my sister-in-law, Ciça,

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who always cheers me on, telling me how amazing I am, and how much she admires me. You are the best. And for their son, Maneco, a miracle that arrived in the middle of this process, and changed my life forever. This book is for you, in the hopes it does a little bit to improve this world of ours, making it better for your generation, and the ones that will follow. To my grandmother Lydia, who left us in the middle of this journey, but was always my greatest supporter. To my other loving grandmother, Rúbia, for introducing me to foreign and mysterious lands and its deep stories, and for growing in me the responsibility to play my part in changing the world for the better. To my mother, without whom none of this would be possible, and for whom all of this is dedicated. I could write a whole book about all the things I need to thank you for. But most importantly, thank you for all the encouragement you gave me every time I felt helpless and wanted to give up. Through all the ups and downs of this career, you reminded me that this was a long journey, and that I was just in the beginning; that patience was my karma, and what I needed to work on daily. Thank you for giving me all the support I could possibly need. For the countless hours on the phone, whether I was crying or smiling. For always holding my hand, even virtually. Thank you for constantly reminding me of my purposes and goals, and of the importance of having faith and patience. Thank you for believing so much in me. To my father, who I know is always with me. Who, without even knowing it, started this pursuit for the protection of the environment, many, many years ago. As the visionary he was, he saw potential when nobody else could. This is for you, wherever you are. I hope you are proud of the choices I have made, and of the person I have become. To the “basic family” and my “extended family” in Brazil, both so close and so far away, thank you for being always there, cheering me on. Thank you for taking turns to visit, letting me catch my breath whenever I thought I could not stand the saudades anymore. To the dear friends I made in New York, whether you are still here or not. Thank you for keeping my mind off work sometimes, for bringing joy and happiness to my life. Thank you for Friday lunches and afternoons baking. To New York City, where everything is possible, for reminding me every day of how good surprises are just around the corner. When everything became too difficult, I could just walk the streets and remind myself the reason I was here for. Finally and above all, to my loving husband Marcelo. Thank you for making me so, so, so happy. Thank you for letting me do the work I am passionate about, and never pressuring me to do anything differently, which is the greatest gift you could ever give me. Thank you for pushing me to be better, always.

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And, I admit it, thank you for the occasional scolding as well. I needed those too. Thank you for letting me cry when I needed to, for making me smile when I could not. Thank you for taking me around the world, and showing me so much we need to preserve, both above and underwater. Thank you for going to the Amazon with me, and walking by my side on this journey. And, most importantly, thank you for the patience and unconditional support during the last months of writing, which – almost! – drove me crazy. You have been with me every step of the way. And every day I love you more for that. It is not always easy, but it makes all of this worth it.

List of Illustrations Figures 1 2 3 4 5 6 7 8 9 10 11 12 13 14

act’s Structure 114 Special Commissions (ad hoc) created during Phase 1 128 acto’s Structure 174 Permanent Secretariat’s Structure 176 Flowchart of the operational structure for the 2004–2012 Strategic Agenda 233 acto’s Structure 286 Hierarchy of Selected Forest Management Government Institutions in Bolivia 526 Hierarchy of Selected Forest Management Government Institutions in Brazil 528 Hierarchy of Selected Forest Management Government Institutions in Colombia 530 Hierarchy of Selected Forest Management Government Institutions in Ecuador 532 Hierarchy of Selected Forest Management Government Institutions in Guyana 534 Hierarchy of Selected Forest Management Government Institutions in Peru 535 Hierarchy of Selected Forest Management Government Institutions in Suriname 537 Hierarchy of Selected Forest Management Government Institutions in Venezuela 538

Tables 1 2 3 4 5 6

Amazonian Territory according to Hydrographic Criterion 15 Percentage of Amazonian Territory according to Hydrographic Criterion 16 Amazonian Territory according to Ecological Criterion (forest cover) 18 Percentage of Amazonian Territory according to Ecological Criterion 21 Amazonian Territory according to Political-Administrative Criterion 22 Percentage of Amazonian Territory according to Political-Administrative Criterion 24 7 Deforestation Rates in Amazonia 51 8 Main Productive Activities in Amazon Countries 64 9 Overall CO 2 Emissions from Amazon Countries 71

List of Illustrations 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

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Per Capita CO 2 Emissions from Amazon Countries 72 Timeline of Phase 1 of cooperation within the act’s framework (1978–1989) 97 Phase 1: Summary of Meetings and Results within the act’s framework (1978–1989) 119 Timeline of Phase 2 of cooperation within the act’s framework (1989–1994) 141 Summary of Meetings and Results during Phase 2 within the act’s framework (1989–1994) 158 Timeline of Phase 3 of cooperation within the act’s framework (1994–2002) 163 Summary of Meetings and Results within the act’s framework during Phase 3 (1994–2002) 164 Meetings of the ad hoc working group on the establishment of the Permanent Secretariat (1996–1998) 169 Meetings of the ad hoc working group on the establishment of the Permanent Secretariat (1999–2002) 172 Financial Contributions of Countries (2000) 180 Phase 1 of the Tarapoto Proposal (1995–2002) 184 National Consultations conducted in the Tarapoto Process 187 Phase 4 Timeline (2002–2009) 214 Summary of Meetings and Results within the act’s framework during Phase 4 (2002–2009) 215 Logical matrix of the 2004–2012 strategic plan 226 acto Projects under Development in 2006 234 acto Projects Planned in 2006 235 Alliances between the ps and third parties (2004–2005) 236 Phase 5 Timeline (2009–2017) 275 Summary of Meetings and Results during Phase 5 (2009–2016) 276 Contributions of Countries 288 Synthetic Matrix of the Plan 293 Categories of the protected areas of the Amazon biome/country (2010 vs. 2015) 443 Deforestation inside protected areas 447 Deforestation inside Indigenous Territories 448 Results of Phase 1 of arpa (2003–2010) 459 Goals of Phase 2 of arpa (2010–2017) 461 Definitions of private protected areas 478 Private conservation initiatives in Amazon Countries 481 Environmental Institutions of the Amazon Countries 523 Summary of pncs 541

Abbreviations and Acronyms abbif acc act acto aeca aheg

alfa arpa bid bndes BioCAN bmz

caf can cbd ccacc ci cites CO 2 coica cop dgis eia ecosoc eu fao funai gdp gef

Amazon Basin Biodiversity Information Facility Amazon Cooperation Council Amazon Cooperation Treaty Amazon Cooperation Treaty Organization Amazonian Strategic Cooperation Agenda Ad Hoc Expert Group (convened/called for in the context of multiple un Forums on Forests, including most recent one leading to the current unff Strategic Plan) Application of Forest Legislation in the Amazon Brazilian’s Amazon Region Protected Areas Programme Banco Interamericano de Desarrollo Banco Nacional de Desenvolvimento Econômico e Social Regional Biodiversity Program in the Andean Amazonian regions of the Member Countries of the Andean Community Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung (German Federal Ministry for Economic Cooperation and Development) Andean Development Corporation Comunidad Andina de Naciones (Andean Community of Nations) United Nations Convention on Biological Diversity Coordinating Commission Amazon of the Cooperation Council Conservation International Convention on International Trade in Endangered Species of Wild Fauna and Flora carbon dioxide Amazon Basin Indigenous Organizations Coordinator Conference of the Parties Netherlands Directorate-General of Development Cooperation environmental impact assessment United Nations Economic and Social Council European Union Food and Agricultural Organization of the United Nations Fundação Nacional do Índio (Brazilian National Foundation of Indigenous People) gross domestic product Global Environmental Fund

Abbreviations and Acronyms gfffn

gfgs ghg giz gtz iapa idb ipcc it itta itto iucn ilo imazon imf inpe ipcc iucn kfw mea MERCOSUR mfa mmfa nascc ngo npa npas oas oda pncs PoWPA ps/acto

xxiii

Global Forest Financing Facilitation Network (new terminology for the portion of the current unff Strategic Plan discussing financing) Global Forest Goals (coming out of the aheg 1 meeting and being incorporated into the current unff Strategic Plan for Forests) greenhouse gas Deutsche Gesellschaft für Internationale Zusammenarbeit (German Agency for Technical Cooperation) German Technical Cooperation Agency Integration of Amazon Biome Protected Areas Project Inter-American Development Bank Intergovernmental Panel on Climate Change Indigenous Territories International Tropical Timber Agreement International Tropical Timber Organization International Union for the Conservation of Nature International Labour Organization Instituto do Homem e Meio Ambiente da Amazônia International Monetary Fund Instituto Nacional de Pesquisas Espaciais (Brazilian National Institute for Space Research) Intergovernmental Panel on Climate Change International Union for Conservation of Nature German Development Bank Multilateral Environmental Agreements Mercado Común del Sur / Mercado Comum do Sul (Common Market of the South) Ministers of Foreign Affairs Meeting of the Ministers of Foreign Affairs Protected Areas, Natural Solutions to Climate Change Project non-governmental organization Natural Protected Area Natural Protected Areas System Organization of American States / Organización de los Estados Americanos Official Development Assistance Permanent National Commissions Program of Work on Protected Areas of the cbd Permanent Secretariat of the Amazon Cooperation Treaty Organization

xxiv pts raisg Redparques res scea sciaa scha scsta sdg sfm tbpas tnc unamaz unced unctad undp unep unep-wcmc unfccc unff unesco unspf unspf usaid wb wcs whc wdpa wwf

Abbreviations and Acronyms Pro Tempore Secretariat Amazon Socio-environmental Georeferenced Information Network Latin American Technical Cooperation Network in National Parks, other protected areas, flora and fauna Resolution Special Commission on Environment for the Amazon (cemaa originally) Special Commission on Indigenous Affairs for the Amazon (ceaia originally) Special Commission on Health for the Amazon (cesam originally) Special Commission on Science and Technology for the Amazon (cecta originally) Sustainable Development Goals Sustainable Forest Management Trans-boundary Protected Areas The Nature Conservancy Association of Amazonian Universities United Nations Conference on Environment and Development United Nations Conference on Trade and Development United Nations Development Program United Nations Environment Program United Nations Environment Program – World Conservation Monitoring Centre United Nations Framework Convention on Climate Change United Nations Forum on Forests United Nations Educational, Scientific and Cultural Organization un Strategic Plan for Forests 2017–2030 (what was drafted by the UNFF12 Working Group) un Strategic Plan for Forests United States Agency for International Development The World Bank Wildlife Conservation Society World Heritage Convention Word Database on Protected Areas (of the World Conservation Monitoring Centre) World Wildlife Fund

chapter 1

Introduction Amazon has become a charged word that evokes strong emotions and stereotypes. […] Amazon is a mysterious word that can denote the world’s largest river, the planet’s most expansive rainforest, or, to some, an environmental tragedy that is cynically ignored by politicians and developers alike.1

∵ The Amazon rainforest has existed for at least 55 million years.2 It is the result of different geological, geomorphological, climatological, hydrographic, and biological processes. South America is characterized by diversity.3 Over 100 million years ago, South America and Africa were one single continent that shared the same fauna and flora. After the partition, the continent remained for a long period a large island. About 15 to 20 million years ago, the displacement of the Nazca Plate below the South American Continental Plate formed the Andes mountain range, and a sedimentary structural basin in between the mountains and the Guyana Shield. South America became physically attached to North America about four million years ago. The union brought a variety of animal groups, leading to a rich mix of biodiversity.4 The biological diversity in Amazonia is just a part of the rich array that exists in the continent. With five biodiversity hotspots, it is a reflection of the variations in geography and climate.5 Amazonia extends far beyond a local context and knows no political boundaries. It spreads over an area ranging between 5,147,970 km2 and 8,187,965 km2, depending on the criteria used to define it.6 Due to the wide range covered, 1 2 3 4 5

1 Michael Goudling et al., The Smithsonian Atlas of the Amazon 10 (2010). 2 Id. 3 Jerry D. Moore, A prehistory of South America: ancient cultural diversity on the least known continent 29 (2014). 4 Michael Goudling et al., supra note 1, at 32–34. See also unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 32 (2009). 5 Jerry D. Moore, supra note 3, at 29.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_002

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the total Amazonian territory can represent between 4 and 6 percent of the planet’s ­total land surface, and between 25 and 40 percent of the surface of Latin America and the Caribbean.7 It ranges from the Andes to the Atlantic and is entirely ecologically connected.8 Its forests spread over nine countries: Bolivia, Brazil, Colombia, Ecuador, Guyana, French Guyana, Peru, Suriname, and Venezuela.9 As a vast area that spreads over nine different jurisdictions, understanding the legal framework that applies to Amazonia is a challenge. National policies are often different, and rarely coordinate with one another. However, cooperation between those countries is of the upmost importance. Since the ecosystem doesn’t respect borders, the laws and regulations of one country directly affect the environment of others. This book focuses on cooperation for forest protection in Amazonia. It therefore frames the ecosystem in the context of international, regional, and national forest law. By looking at the vast array of regulation that applies to the region, it contributes to a better understanding of the legal system of the Amazon rainforest. Since French Guyana is still an overseas territory of France, and is therefore not included in the regional cooperative scheme that exists in Amazonia, it was not included in this analysis. Amazonia is a mixture of myths and facts. In order to clarify some of the facts, Chapter 1 sets the stage for the analysis of the laws that rule Amazonia. It introduces the Amazon as a unique ecosystem, with its many riches and singularities. Before reaching the core of this book, it is essential to understand the context in which the region is inserted, and why it is important to protect it. This should be done, however, with a caveat. As a lawyer, and not at all a scientist, the research conducted for this chapter was undertaken to satisfy my own curiosity and provide readers a brief welcome to the world of Amazonia. Brief is the key word here. This chapter is not at all comprehensive, and only presents some pieces of the puzzle. The information here provided was carefully chosen in order to provide some background for later chapters. It therefore replicates some of my own readings, not my own findings. Rainforests, or megathermal moist forests, only occur in tropical regions that meet specific standards: abundant rainfall, less than four months of dry

6 7 8 9

6 unep, acto and ciup, supra note 4, at 39. These numbers were based on superimposed geospatial information according to the three criteria explained below, which have a c­ omposite map of the region identifying two areas: “Greater Amazonia” (maximum extension) and “Lesser Amazonia” (minimum extension). 7 Id., at 38. 8 Michael Goudling et al., supra note 1, at 11. 9 Please note that French Guyana is not included in the analysis of this book.

Introduction

3

season, and with an average monthly temperature of at least of 18°C (64.4°F) with small seasonal variation.10 Currently, these conditions are only met at the tropics.11 The Amazon rainforest is situated right at the Equator, where there are yearlong high temperatures and constant rain. It is divided between two hemispheres, therefore alternating between a six-month-long dry and rainy seasons. The climate is warm and humid, with a greater difference between day and night temperatures than in between seasons. These conditions provide for yearlong high temperatures and constant rain, with a six-month rainy season. The rainy season plays a significant role in creating the climatic conditions necessary for tropical rainforests. With the combined geographic and climatic conditions, tropical rainforests have unparalleled biodiversity.12 The rainforest is named after the Amazon River, which represents its life force. The river was first discovered by Europeans in 1500 by Vicente Yañez Pinzon, a Spanish explorer, who originally called it “Río Santa María de la Mar Dulce”.13 The term “mar dulce” means the “freshwater sea”. Even far from the river’s mouth, the ocean water is not salty due to the massive discharge into the ocean. When Pinzon first saw its brown, dark water he believed to be standing by the Ganges River in India. For this reason, he called the native people Indians.14 There are two theories as to the source of the name Amazonas. A folk legend explains that the name “Amazonia” derives from the female warriors who fought a Spanish expedition in search of the El Dorado in 1540.15 Legend goes 10 11 12 13 14 15

10

11

12

13

14 15

Mark Maslin et al., New views on an old forest: assessing the longevity, resilience and future of the Amazon rainforest, 30, Trans. Inst. Br. Geogr., 477 (2005), available at http://earth .leeds.ac.uk/ebi/publications/Maslin_2005.pdf. Tropical rainforests exist in the Indo-Malayan region of South and Southeast Asia (the western portion, composed of Borneo, Malaysia, and Indonesia; the southern portion, consisting of Thailand, Myanmar (Burma), Cambodia, Vietnam and Laos; and the east portion, extending from Papua New Guinea to the Solomon Islands and Northern Australia); in Sub-Saharan Africa, including Guinea, Nigeria, Cameroon-Gabon and Congo, in South America (e.g. the Amazon Rainforest) and Central America (e.g. Bosawás, southern Yucatán Peninsula-El Peten-Belize-Calakmul). wwf, Terrestrial Ecoregions, Tropical and subtropical moist broadleaf forests, http:// worldwildlife.org/biomes/tropical-and-subtropical-moist-broadleaf-forests (last visited July 28, 2013). Isaac Taylor, Names and Their Histories: A Handbook of Historical Geography and Topographical Nomenclature 44–45 (2nd ed., 1898), available at http://books.google.com/ books?id=vqgYAAAAIAAJ&pg=PA44&hl=en#v=onepage&q&f=false. John Hamming, Árvore de rios: a história da Amazônia 15 (2011). Isaac Taylor, supra note 13.

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that Francisco de Orellana, who headed the expedition, became separated from the other ships and found his way home by sailing down the Amazon River. Throughout it, he encountered many challenges, including an indigenous group called the Tapuya. Tapuya women fought beside the men.16 The word Amazon, from the Greek mythology, means fierce warrior-women who fight like men. Based on the encounter, the women warriors became the source of the region’s name. A second theory maintains that the name derives from the Tupi or ­Guarani word translated into Portuguese. The indigenous term “amassona,” boat-­ breaker, refers to a phenomenon that occurs when a large wave is created by seawater flowing at high volume in an upstream direction that destroyed boats at spring tides in the river’s lower portion.17 The tidal phenomenon can produce waves twelve to fifteen feet high sweeping hundreds of miles upstream. The longest wave in the world is known locally as “pororoca.”18 Just like its name, Amazonia maintains several secrets, and new discoveries are constant. This chapter thus represents Amazonia and some of its misteries. Section 1.1 describes what Amazonia is. It summarizes some of the aspects of Amazonia’s geography and biodiversity that render the tropical rainforest and its river system unique. Section 1.2 presents some of the parameters used to define Amazonia’s boundaries, discussing the difficulties that arise from it. It therefore discusses how to define it according to three criteria widely used: hydrographic, ecological, and political/administrative. These are essential to understanding some of the challenges in forest regulation. After the brief factual introduction, Section 1.3 frames the book, outlining the core ideas within it, and presenting a roadmap to the chapters that follow. 1.1

Geography of Amazonia

The Amazon rainforest is all superlatives and heterogeneity. With black waters and ancient lands,19 the moist broadleaf forest covers most of the Amazon Basin. If Amazonia were a country, it would be the world’s ninth largest in size, as it is comparable to the size of Australia. The Great Amazonia20 is 16 17 18 19 20

16

17 18 19 20

Or, at least, what they thought to be women. Another theory argues that the Spaniards saw beardless long-haired warriors decorated with jewelry, and thought that at least some of them were women. John Hamming, supra note 14, at 43. Michael Goudling et al., supra note 1, at 30. Id., at 21. According to the largest possible extension of the region, see Section 1.2. How to Define Amazonia, below.

Introduction

5

administered by eight Amazonian national states and an overseas department of France, and is divided into four areas: Northeast Amazonia, Southeast Amazonia, Central Amazonia, and Western Amazonia.21 The region represents over half of the planet’s remaining tropical forests and one sixth of all broadleaf forests.22 ­Amazonia is a unique ecosystem due to the combination of aspects that define it: its nutrient-poor soil, the unparalleled extent of biodiversity, and the volume of water. This section explains each of those factors, and how they contribute to making Amazonia exceptional. From above, the Amazon looks like a continuous coating of large crowns. But instead of a uniform green area, it is a mosaic of landscapes and ­ecosystems, divided between four layers. The emergent tier can reach up to 200 feet, and is exposed to fluctuation of temperature, wind, and rainfall. The canopy, the main layer, filters about 80 percent of sunlight. The understory only gets about two to five percent of sun, with plants adapting to the shadows, growing up to twelve feet high. The forest floor, the lowest tier, receives only two percent of sunlight, and has almost no plants. It is littered with decomposing vegetation and organisms that are broken down into usable nutrients.23 Because of these multiple layers, the soil in the Amazon rainforest is incredibly nutrient poor.24 The nutrient-poor soils represent a key characteristic of the Amazon rainforest. As a porous mass, it prevents minerals and nutrients from being washed away and lost. The soil has been constantly described as acid and infertile. Since it is low in mineral nutrients, the soil is destroyed once forests are cleared. As the regional biological diversity is rich, the characteristic seems an apparent paradox.25 However, while the tropical rainforest has a nutrient-poor substrate, it has a relatively rich nutrient economy.26 Nine tenths of the forest’s energy is stored in the leaves and tissues of trees. When these 21 22 23 24 25 26

21

22 23

24 25 26

F. Gutiérrez, L. Acosta and C. Salazar, Perfiles urbanos en la Amazonia colombiana: Un enfoque para el desarrollo sostenible, in Proyecto Perfil Urbano de los Departamentos de Putumayo y Amazonas 34 (Instituto Amazónico de Investigaciones Científicas sinchi ed., 2004). Michael Goudling et al., supra note 1, at 19. See Green Tracks, Amazon Rainforest, http://www.greentracks.com/amazon-rainforest .html (last visited Jul. 15, 2016); C.M. Shorter, Layers of the Rainforest, Tiger Homes, http://www.tigerhomes.org/animal/layers-rainforest.cfm (last visited Jul. 15, 2016); Action for Our Planet, Amazon Rainforest, http://www.actionforourplanet.com/#/amazon -rainforest/4558761309 (last visited Jul. 15, 2013); Blue Planet Biomes, Amazon Rainforest, http://www.blueplanetbiomes.org/amazon.htm (last visited Jul. 15, 2016). Michael Goudling et al., supra note 1, at 43. P.M. Vitousek and R.L. Sanford, Jr., Nutrient Cycling in Moist Tropical Forest, 17 Annu. Rev. Ecol. Syst. 137, 137–167 (1986). Robert H. Whittaker, Communities and Ecosystems (1975).

6

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fall, a layer of decomposed leaves and branches add to dead animals, and is converted into nutrients, feeding the forest. The ecosystem is therefore highly interconnected, and renews itself to continue the cycle, thus maintaining the balance with a maximum seize of resources. Amazonian soils also protect the forests. Since most of it cannot be used for agriculture once cleared, regions in which the soil is poorer are actually more protected from this kind of threat. Amazonia’s extent of biodiversity is unparalleled. As the world’s most diverse terrestrial ecoregion, it hosts about a quarter of all global biodiversity.27 It is estimated that one in ten known species lives there, the largest collection to be found in a single region. Nonetheless, despite constant analyses about its biodiversity, the canopy of Amazonia is less studied than the ocean floor. Knowledge is still flawed and insufficient. The regional biodiversity could be even greater than assessed, and some scientists estimate that it may contain half of the world’s species. Indeed, a recent study built a compendium of tree species collected from the Amazon over the past three centuries, and concluded that new trees will likely continue to be discovered for the next 300 years.28 Due to the uncertainty and the loose parameters to define Amazonia’s boundaries, the exact number of species found in the region often varies.29 So far, researches have collected 11,676 unique tree species and 50,000 plant ­species.30 In a single tree, 95 species of ants were found, ten less than in the entire German territory.31 Brazil, Colombia, and Peru alone have a third of the world’s known vascular plants. According to some estimates, 427 mammal species, 1,294 birds, 378 reptiles, 427 amphibians, and 3,000 fishes have been identified in the region.32 In addition, it boasts a record of 4,000 species of ­butterflies and over 30 million insect types, with 3,000 bees just in the Brazilian 27 28 29 30 31 32

27

28

29

30

31 32

Richard A Betts et al., The future of the Amazon: new perspectives from climate, ecosystem and social sciences, 363 Phil. Trans. R. Soc. B 1729 (2008). unep, acto and ciup, supra note 4, at 109. Nathaniel Scharping, We Won’t Finish Discovering New Trees in the Amazon for 300 Years, Discover Maganize (Jul. 15, 2016), http://blogs.discovermagazine.com/d-brief/2016/07/15/ we-wont-finish-discovering-new-trees-in-the-amazon-for-300-years/#.V_JmkpMrLaY. See wwf, supra note 12; wwf, Amazon Alive! A decade of discovery 1999–2009 (2010), a­ vailable at http://wwf.panda.org/?196057/Amazing-Discoveries-in-the-Amazon-New -Species-Found-Every-Three-Days-Over-Last-Decade. Hans ter Steege et al., The discovery of the Amazonian tree flora with an updated checklist of all known tree taxa, 6 Scientific Reports, 29549 (Jul. 13, 2016), available at http://www .nature.com/articles/srep29549#ref16. Leandro Beguoci, O tesouro escondido na selva, Veja (Sep. 2009), http://veja.abril.com.br/ especiais/amazonia/tesouro-escondido-na-selva-p-072.html. José Maria Cardoso da Silva et al., The Fate of Amazonian Areas of Endemism, 19(3) Conservation Biology (Jun. 2005), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1523 -1739.2005.00705.x/abstract;jsessionid=3206DD526EA7217C2A390CE4437A8AB1.f03t02.

Introduction

7

part of the forest. One in every five birds in the world, as well as one in every 5 fishes originates from the region. Numbers are constantly growing, with new discoveries on a regular basis. Due to the extraordinary concentration of biodiversity, six of the eight ­Amazon countries belong to a group of megadiverse countries: Bolivia, ­Brazil, Colombia, Ecuador, Peru, and Venezuela.33 With nearly 12 percent of the world’s wildlife spread over the greatest territorial extension of the continent, Brazil is considered the most biodiverse country in the region. It has the largest collection of plant, mammal, bird, reptile and amphibian species, totaling over 58,000 species.34 Due to its very diverse ecosystem, Brazil has a high level of endemism.35 Colombia follows in terms of biological diversity.36 The country currently has 56,343 species, which represent around 10 percent of the world’s biodiversity.37 Peru concentrates 38,020 species, including the world’s largest record of butterflies and 20 percent of the world’s avian species.38 Bolivia follows, with 22,268 species.39 It includes 70 percent of the world’s known species of birds, being the sixth most diverse country considering bird species.40 Ecuador is also home to a great variety of species, a lot of them endemic.41 33 34 35 36 37 38 39 40 41

33

34 35

36 37

38 39 40

41

Conversation International identified 17 megadiverse countries in 1998, a group that harbor the majority of the Earth’s species. Conservation International, http://www.conservation .org/documentaries/Pages/megadiversity.aspx. See also Declaración de Cancún de Paises Megadiversos Afines, available at http://wayback.archive.org/web/20050528132549/ and http://cdi.gob.mx/internacional/declaracion_de_cancun_de_paises_megadiversos _afines.pdf (last visited Feb. 18, 2016). unep, acto and ciup, supra note 4, at 112. Adalberto Veríssimo et al. (eds.), Protected Areas in the Brazilian Amazon: Challenges and Opportunities 14 (imazon, 2011), available at http://www.socioambiental.org/banco _imagens/pdfs/10381.pdf. unep, acto and ciup, supra note 4, at 112. Colombia has 56,343 species according to the gbif – Global Infrastructure of Biodiversity Information. See SiB, Biodiversidad en Colombia, http://www.sibcolombia.net/web/sib/ cifras (last visited Oct. 3, 2016). unep, acto and ciup, supra note 4, at 112. Id., at 112 (See Table 3.2, for the number of species by group reported in the Amazonian countries). Bolivia has 2,194 known species of amphibians, birds, mammals, and reptiles, 3,000 types of butterfly, and more than 17,000 species of plants. Bolivia features over 200,000 species of seeds, including over 1,200 species of fern, and at least 800 species of fungus. In addition, there are more than 3,000 species of medicinal plants. Mongabay, Amazon Rainforests, available at https://news.mongabay.com/list/rainforests/amazon/ (last visited Nov. 15, 2016). Ecuador represents 0.2 percent of the world’s surface, but contains 18 percent of the bird species, 18 percent of the orchids, 10 percent of the amphibians, and 8 percent of the mammals.

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A third characteristic of Amazonia is the abundance of water. The rainforest is the drainage basin for the Amazon River and its 15,000 tributaries and sub-tributaries, which constitute the Amazon Basin. The world’s longest river expands over 6,992,06 km (4,195 miles), representing 16 percent of the world’s river water flows.42 It encompasses over two thirds of the global freshwater supply.43 The Amazon River originates in the Peruvian Andean mountain range as a stream trickling from a glacier at 5,600 m (18,360 ft).44 It begins as Rio Marañon and is joined by numerous rivers flowing from Peru, Ecuador, and Colombia as it moves east over the Northern half of South America.45 In the Brazilian highland, it is joined by the Rio Negro and other tributaries until it empties in the Atlantic Ocean. It takes at least a month for the river’s water to flow from the Andes to the Atlantic. In its course, the river and its tributaries create numerous fluvial islands and channel bars that snake around islands. It can vary from 1.6 to 10km (1–6.2 miles) in width, reaching 48km (30 miles) or more during the rainy season.46 The River Amazonas carries the greatest volume of water in any single river in the world, and its annual discharge of 6,300 km3 represents 20 percent of the world’s total amount.47 Fifty-seven million gallons of water flow into the Atlantic per second, diluting its salinity for more than 100 miles offshore. In two hours it could supply New York City’s water demand for a year.48 With 106 million cubic feet of sediments discharged daily, the Amazon River 42 43 44 45 46 47 48

42

43 44

45

46 47 48

It was argued that the Nile was longer than the Amazon River, leading to a long-lasting controversy. However, scientists determined in 2007 that the Amazon River was indeed the longest one. John Roach, Amazon Longer Than Nile River, Scientists Say, National Geographic (June 18, 2007), available at http://news.nationalgeographic.com/ news/2007/06/070619-amazon-river.html. Investigators have tried to precisely determine the length of the Amazon River, and a 5 percent error margin is usually expected. See also Michael Goudling et al., supra note 1, at 23. wwf, Amazon, http://worldwildlife.org/places/amazon (last visited July 27, 2016). The source of the Amazon River has been for long contested. See Shreya Dasgupta, Why the source of the Amazon river remains a mystery, bbc (May 16, 2016), available at http://www.bbc .com/earth/story/20160516-why-it-is-hard-to-find-the-source-of-rivers-like-the-amazon. Jerry D. Moore, supra note 3, at 33. The Amazon River is actually divided into four main stretches, two of them named Amazonas. Beginning upriver in Peru is the Ucayali, followed downstream by the Amazonas in Peru and Colombia. After entering Brazil, the Amazon River is called the Solimões until its confluence with the Negro, where it is again called the Amazonas. Amazon Waters, Sediments, The Alluvial Gift of the Andes, http://amazonwaters.org/waters/flows-and-floods/sediments/ (last visited Sep. 9, 2016). Id. Michael Goudling et al., supra note 1, at 10. Id., at 28.

Introduction

9

ranks among the three largest contributors of fluvial sediments to the oceans, along with the Yellow River in China and the Ganges-Brahmaputra Delta in India and Bangladesh.49 However, since sediments originate in the Andes, the main erosion zone in the Amazon Basin, the river has a relatively low sediment yield. Due to shore currents, 30 percent of the sediments reach the Atlantic along the French Guiana, Suriname and Guyana coasts.50 In addition to the Amazon River, several of its tributaries and sub tributaries are noteworthy due to their magnitude and proportion. Indeed, the Amazon Basin is the only in the world to have three tributaries longer than 3,000 km: the Purus, the Juruá and the Madeira rivers. While the Amazon River drains 38 percent of South America, the Amazon Basin drains an area of over 6.1 million km2, almost the size of the United States.51 Amazonia has two main sources of water: rain and snowmelt. The forest receives 60 to 120 inches of rain every year. Annual amounts of 470 inches have been recorded in some regions.52 Sixty percent returns to the atmosphere through the foliage of trees, thus contributing to its humidity. The remaining 40 percent returns to the Atlantic through the network of rivers.53 The second and largest source of the river’s water derives from the annual snowmelt in the Peruvian Andes and the Lake Lauricocha.54 Rain and snow reach the Amazon through its tributaries and produce the high-water season. Due to the seasonality, large tracts of rainforest can be inundated to depths of up to 40 feet. The lowest flood stage occurs in August and September, while the highest stage occurs in April and May.55 Different rainy seasons in Ecuador (March-July) and Peru (October-January) produce alternating floods in the drainage basin’s upper reaches.56 With an extraordinary concentration of species and ecosystems, the ­Amazon region offers a wealth of goods and services to society.57 More than 49 50 51 52 53 54 55 56 57

49 50 51

52 53 54 55 56 57

Amazon Waters, Waters, http://amazonwaters.org/waters/ (last visited Sep. 9, 2016). Id. Smithsonian National Zoological Park, Amazon Basin Facts, http://nationalzoo.si.edu/ animals/amazonia/facts/basinfacts.cfm (last visited Aug. 4, 2013). Please note that other studies indicate the area covers 7,165,281km2 instead. Michael Goudling et al., supra note 1, at 27. Id., at 25. Smithsonian National Zoological Park, supra note 51. Rhett Butler, Flooding, Low Water, and High Water Levels in the Rainforest, Mongabay (Jul. 31, 2012), available at http://rainforests.mongabay.com/0604.htm. Jerry D. Moore, supra note 3, at 33. Jonathan A. Foley et al., Amazonia revealed: forest degradation and loss of ecosystem goods and services in the Amazon Basin, Frontiers in Ecology and the Environment, 5: 25–32 (2007).

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2,000 plant species with nutritional and medicinal purposes have been identified.58 For centuries, indigenous groups have used plants for their health and survival, and studies indicate that indigenous peoples in Amazonia use 1,600 species of medicinal plants to cure diseases.59 Scientists are constantly discovering solutions for modern diseases, and people worldwide are traveling to the region in search of untraditional cures to untreatable illnesses.60 Indeed, the vast knowledge of Amazonian Shamans was acquired over thousands of generations spent experimenting with Amazonian wildlife.61 Now viewed as “an infinite sea of possibilities”, this knowledge is being recognized by scientists as key to unlocking the rainforest’s vast potential to provide new pharmaceuticals for a multitude of diseases, from the common cold to cancer and aids.62 The world’s most extensive tropical forest also provides a variety of ecosystem services to mankind. Environmental or ecosystem services are the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life.63 Amazonia acts as a major ­“flywheel” of global climate, ensuring climate stability. The forest transpires water and generates clouds, affecting atmospheric circulation across continents and hemispheres, storing substantial reserves of biomass and soil carbon.64 Indeed, the rainforest is essential to the planet due to carbon sequestration and its ability to modulate regional patterns of climate. First, it absorbs heat and solar energy and evaporates water through its foliage. The energy seized benefits the entire world through climatic “teleconnections.” Second, it captures and stores carbon, which, as released through deforestation, drought and fires, contributes further to the accumulation of greenhouse gases (GHG). Indeed, it has the capacity to absorb up to 2 billion tons of carbon dioxide (CO2) per year, about 20 percent of the atmospheric carbon emitted by the burning of fossil 58 59 60 61 62 63 64

58 59 60

61

62

63 64

unep, acto and ciup, supra note 4, at 111. Id., at 110. Carolyn Gregoire, Scientists Put Shamanic Medicine Under the Microscope, The Huffington Post (Oct. 16, 2015), http://www.huffingtonpost.com/entry/shaman-medicine -autoimmune-disease_us_55f8737be4b0d6492d633c23. Simeon Tegel, Dying Amazon healers are taking potential cures for cancer, aids and other diseases with them, Los Angeles Daily News (Jun. 06, 2015), http://www.dailynews.com/ health/20150630/dying-amazon-healers-are-taking-potential-cures-for-cancer-aids-and -other-diseases-with-them. Tom Phillips, Brazilian explorers search ‘medicine factory’ to save lives and rainforest, The Guardian (Apr. 27, 2009), https://www.theguardian.com/environment/2009/apr/27/ amazon-rainforest-medicine. Gretchen Daily, Nature’s services: societal dependence on natural ecosystems 3 (1997). Id., at 1729.

Introduction

11

fuels, acting as a global repository of ghg. Third, its freshwater discharge into the Atlantic Ocean influences large ocean currents that are important climate system regulators.65 As the source of one-fifth of all fresh water on the planet, the Amazon Basin’s hydrological system plays a critical function in regulating the global and regional climate. Water condensation, evaporation, and transpiration over the Amazon are key drivers of the global atmospheric circulation, affecting precipitation across South America and much of the Northern Hemisphere. Among the regions directly linked to the Amazon by a complex weather system is the Rio de la Plata basin of southeastern South America, one of the most important agricultural zones on the planet. Recent climate models indicate that deforestation has also had the effect of reducing precipitation as far afield as the lower Midwest of the United States.66 The region provides more obvious goods and services such as agricultural and timber commodities, but also lesser-known ecosystem services, such as pollination and flood control, which extend over complex landscapes and watersheds. The Amazon is the origin of the majority of the developed world’s diet. It is estimated that at least 80 percent of it originated in the ­tropical ­rainforest, including fruits like avocados, coconuts, figs, oranges, lemons, grapefruit, bananas, guavas, pineapples, mangos, and tomatoes; vegetables including corn, potatoes, rice, winter squash, and yams; spices like black pepper, cayenne, chocolate, cinnamon, cloves, ginger, sugar cane, turmeric, coffee, and vanilla; and nuts including Brazil nuts and cashews. It regulates freshwater and river flows, providing watershed management, and ameliorates the spread of vector-borne and water-borne infectious diseases across regions.67 Finally, it promotes biodiversity conservation and the preservation of landscape beauty. Amazonia is an interconnected ecosystem, with several uniform characteristics that can be found throughout the countries that share it. Some similarities are observed throughout countries: patterns of biodiversity, wealth of species and endemism, ecosystem abundance and complexity.68 Political boundaries have had little effect on its functional patterns. Nonetheless, each Amazonia is unique. There are several different Amazons within Amazonia. The region is not homogenous in its plant and animal communities. Indeed, it is an archipelago of distinct areas of endemism, island-like areas that are divided through 65 66 67 68

65 66 67 68

unep, acto and ciup, supra note 4, at 100. ipcc, The Regional Impacts of Climate Change, http://www.ipcc.ch/ipccreports/sres/ regional/index.php?idp=123 (last visited Nov. 15, 2016). Jonathan A. Foley et al., supra note 57. unep, acto and ciup, supra note 4, at 108.

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rivers, each with a unique ecosystem.69 The areas of endemism, with species concentrated and delimited to a specific region, are the most threatened.70 1.2

How to Define Amazonia

The diversity seen in the multiple characteristics of Amazonia brings challenges to the legal and policy-based significance of the region. Indeed, such as the on-the-ground conditions that define Amazonia, rendering it unique, there are multiple aspects that define the region and its political boundaries. As such, one of the biggest challenges for Amazon scholars is to define the area it covers. Several criteria have been proposed and discussed both at the academic and government levels to delimit its area and establish its boundaries, but there is still no uniformity in the parameters chosen. Every study about Amazonia thus starts with a key question: “what is ‘Amazonia’, its limits, its outreaches and, of course, its challenges?”71 Criteria vary based on forest cover (ecological), altitude, hydrography, biogeography, political and administrative limits, and social and economic factors. As a result, regional statistics vary greatly, making it more difficult to estimate progress and compare among regions or countries. The limits within each criterion are also subject to different interpretations.72 Countries use different standards to define its territory. Some have their own definition of what Amazonia means to them.73 Brazil, for example, legally includes the cerrado biome, close to its capital Brasília.74 Even when countries use the same criteria, they may use different thresholds within it.75 The challenge is due to the fact that the Amazon ecoregion is not necessarily identical to the Amazon River Basin, both of which face permanent natural and man-made change.76 At the national level, the lack of uniform criteria poses no problem. However, at the regional level, it brings many practical difficulties. Indeed, the issue is not at all academic: an agreement on the possible definitions of Amazonia

69 70 71 72 73 74 75 76

69 70 71

72 73 74 75 76

Michael Goudling et al., supra note 1, at 28. José Maria da Silva, supra note 32, at 1. unep, acto and ciup, supra note 4, at 116. Rosalía Arteaga Serrano, Foreword in A Proposal for Defining the Geographical Boundaries of Amazonia V (European Commission (ec) and acto, 2005), available at http:// publications.jrc.ec.europa.eu/repository/bitstream/JRC68635/eur%2021808%20en.pdf. bid, pnud and tca, Amazonía sin mitos 25 (1992), available at http://www.amazonia .bo/administrador/imgnoticia/mitos.pdf. unep, acto and ciup, supra note 3, at 41. bid, pnud and tca, supra note 72, at 25. ec and acto, supra note 71, at 1. Manfred Grasserbauer, Foreword in ec and acto, supra note 71, at vii.

Introduction

13

enhances the understanding of the political, social, economic, and ecological processes within the region, as well as their spatial expression, such as deforestation, land use, protected natural areas, etc.77 Indeed, a simple question like indicating the population of Amazonia or a more complex one like estimating the carbon balance of the Amazon Basin rely on it.78 In addition, it contributes to the development of better tools for sustainable land management.79 Finally, the issue presents many challenges in terms of regional cooperation. The legal consequences of the lack of a uniform concept will be discussed in subsequent chapters, and represent one of the main practical challenges yet to be overcome. The problem is such that in 2005, the Amazon Cooperation Treaty Organization (acto) requested the assistance of the European Commission for scientific and technical support of the Commission’s Joint Research Centre (jrc) in defining the geographical boundaries of Amazonia.80 They proposed three different criteria,81 and divided the region into five sub regions.82 Subsequent documents show, however, that the organization did not reach a consensus, and there is still no universal definition of the Amazonian area.83 Since this book discusses the acto at length, using its system as the basis for regional cooperation, the data used is based on a 2009 study developed by the organization in collaboration with unep.84 However, a report written by raisg complements it, adding to the discussion.85 Overall, there are three common criteria to define Amazonia, which are used both by the acto and raisg: hydrographical, ecological, and political/­ administrative. While the first two criteria are geographical, the third is ­political. The first geographical criterion stands for the biophysical borders, which relate to hydrography of the region. It is based on the total extent of the Amazon Basin, which forms the central constituent of the definition.86 77 78 79 80 81 82 83 84 85 86

77 78 79 80 81 82 83 84

85 86

Rosalía Arteaga Serrano, supra note 71, at v. Manfred Grasserbauer, supra note 76, at vi. Rosalía Arteaga Serrano, supra note 71, at v. Id. Hydrographical, ecological and biogeographical. Id., at iii. One core subregion: Amazonia sensu stricto; and four peripheral regions: Andes, Planalto, Guiana and Gurupí. Id., at iii. unep, acto and ciup, supra note 4, at 21. Id. There is no indication that the parameters used by the acto in this study relate to those suggested by the European Commission. Indeed, through the ec’s parameters, the entire Amazon region would total 8,121,313 km2, which does not correspond to the three paramenters included in the study. See ec and acto, supra note 80, at 14. raisg, Amazon Under Pressure (2012). ec and acto, supra note 71, at iv.

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The second geographical criterion is ecological, which relates to the different ecoregions within Amazonia, and exercises strong direct or indirect influences on the Amazon region.87 Finally, the administrative boundaries recognized by nations constitute the third criterion. These often relate to the conservation and/or development policies, and take into account the region’s unique features.88 Although not all countries have one, the political criterion represents each country’s chosen parameter to officially define it. The three criteria will therefore be analyzed separately in this section. After a brief explanation of their core aspects, each criteria includes two tables: one that compares the total Amazonian territory and another that compares the percentages of territory based on the country’s total area and the country’s Amazonian region. Hydrological Criterion The hydrological criterion is based on the total extent of the Amazon Basin: 2,862 hierarchized and structured river drainage systems, corresponding to 1,453 basins covering more than 150,000 hectares and their 1,409 intermediary areas, affluents of the Orinoco and Amazon rivers, as well as the Guianas, the areas surrounding the Tocantins river and the western part of the Brazilian “ne Atlantic.”89 The criteria suggested by the European Commission includes the entire drainage basin formed by the river network of the Amazon and the Tocantins river basins, extending in Bolivia, Brazil, Colombia, Ecuador, Peru and Venezuela, from all the watersheds down to the outer mouth of the river delta, including the brackish water ecosystems.90 It includes 12 macro-basins and 158 sub-basins and covers an area between 6,118,334 km2 and 6,913,054.35 km2.91 Except for the territory of Brazil, there is no significant difference between the parameters used by the acto and raisg. Table 1 shows the countries’ Amazonian territory according to the hydrological criterion, based on the data of the two reports mentioned. By looking at the size of the national basin compared to the size of the Amazon Basin as a whole, four different groups of influence can be identified: (i) countries with a large basin area (in this case, more than 20 percent of the Amazon basin), which only includes Brazil; (ii) countries with a medium basin 87 88 89 90 91

87 88 89 90 91

Id. raisg, supra note 85, at 10. raisg, supra note 85, at 9. ec and acto, supra note 71, at 10. See Table 1 below.

15

Introduction Table 1

Amazonian territory according to hydrographic criterion

Country

acto92

Bolivia

raisg93

724,000 km2

Brazil

3,869,953 km2

714,493 km2

4,692.488 km2

Colombia

345,293 km2

342,372.9 km2

Ecuador

146,688 km2

131,950.45 km2

Guyana French Guyana Peru

12,224 km2 –

12,300 km2

967,176 km2

966,170 km2

Suriname

–

Venezuela

53,000 km2

Total

6,118,334 km2

53,280 km2

6,913,054.35 km2

92 93 94

92 93 94

unep, acto and ciup, supra note 4, at 41. raisg, supra note 85, at 11. Numbers are approximate. Id., at 11.

Notes from raisg94 The watershed is comprised of the Rio Madera and a small portion of the upper Amazonas basin on the border with Brazil. Basins of the rivers Amazonas, Negro, Madera and ­Tocantins, the Guyana/Macapá and ­Atlantic Ocean. Basins of the rivers Putumayo, Negro, Caquetá and a small portion of the Napo. Includes portions of the basins of the rivers Putumayo, Napo, Tigre, Pastaza, Morona Santiago and Mayo. All are binational or transnational basins. Tributary of the Branco River. Is not tributary of the Amazonas River. Drained by many rivers of varying sizes and volumes; the largest include the Amazonas, Marañón, Napo, Ucayali and Madre de Dios Rivers. Is not tributary of the Amazonas River. Includes the area south of the Casiquiare river, which communicates the Orinoco with the Negro River. N/A

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area, which includes Bolivia and Peru, both with more than 10 percent of the total basin area; (iii) countries with a small basin area, including Colombia and Ecuador (up to 10 percent of the Amazon basin); and (iv) countries with an insignificant basin area, almost nonexistent (and, for this reason, generally not considered to have an Amazon Basin area at all), which include Guyana and Venezuela; and (v) countries that do not have tributaries of the Amazon River, which include Suriname and French Guyana. A closer look shows, however, that despite a smaller significance regionally, these areas have relevance nationally. Bolivia and Peru, for example, countries included within the medium influence category, both have between 65 and 75 percent of their national territory composed of the Amazon Basin. In this sense, they are the most “Amazonian” countries from a hydrological p ­ erspective. ­Ecuador and Brazil fall shortly behind, with close to half of their respective territories composed by the Amazon Basin. The basin has a s­ ignificant smaller influence in Colombia, encompassing 30 percent of its territory. Lastly, Venezuela and Guyana have around five percent of their national territory ­considered Amazonian through this perspective, which corresponds to their influence in the entire basin. Table 2 shows the percentage of the ­Amazon Basin compared to the national territory and the total basin area. Table 2

Country

Bolivia Brazil Colombia Ecuador Guyana Peru Suriname Venezuela Total

Percentage of Amazonian territory according to hydrographic criterion

Total country territory

1,098,581 km2 8,514,876 km2 1,141,748 km2 283,561 km2 214,960 km2 1,285,216 km2 142,800 km2 916,445 km2 13,598,187 km2

Territory ranking world / Amazonia

25th / 4th 5th / 1st 26th / 3rd 74th / 6th 85th / 7th 20th / 2nd 92nd / 8th 33rd / 5th N/A

% of national basin according to Hydrographic criteria95 Over total national area

Over total basin area

65.9% 45.4% 30.2% 51.7% 5.7% 75.3% – 5.8% N/A

11.8% 63.3% 5.6% 2.4% 0.2% 15.8% – 0.9% 100%

95

95

Percentage of country’s Amazon area based on the national territory according to the hydrographic criteria (first column). Percentage of country’s Amazon area based on the

Introduction

17

Ecological Criterion The ecological criterion relates to the ecological and functional connections of the three ecoregions present in the Amazon rainforest: (i) the Amazonia sensu stricto, which includes the area of the Amazon and Tocantins river basins dominated by the Amazon lowland rainforest biome; (ii) the Andes, extending along the eastern slopes of the Andean Cordillera between Bolivia and Colombia, from 700m upwards to the actual watershed; and (iii) the Planalto, located on the northern slopes of the Brazilian Shield and the Bolivian central plains of Santa Cruz. The Planalto extends along the southern Amazon rainforest limit and the southernmost watershed limits of the Amazon and Tocantins river network, and meets eastwards the upper Mearím River in Maranhão.96 A biogeographical definition of Amazonia includes two additional sub regions: the Guiana and the Gurupí. The Guiana comprises the Guiana region of Venezuela, parts of Colombian Amazonia, the three Guianas and the northern part of the state of Amapá in Brazil, including the sandstone and granite mountains of the Guiana up- and highlands, and the enclosed area north of Guri; the Gurupí includes the river basins between the lower Tocantins and the Mearím/Pindare rivers draining into the Atlantic Ocean in Brazilian northeastern Pará and western Maranhão.97 Table  3 shows the countries’ Amazonian territory according to the ecological criterion, based on the data of the two reports previously mentioned. By looking at the size of the national rainforest compared to the size of the regional area of the Amazon Rainforest, four different groups of influence can be identified: (i) countries with over a million square kilometers of rainforest area, which only includes Brazil, the country that has by far the largest portion, with 61.5 percent of the Amazon rainforest; (ii) countries with more than 400 thousand square kilometers, but less than a million square kilometers of rainforest area (more than 5 percent of the Amazon rainforest), which includes Peru, Bolivia, and Colombia, with 11.5, 8.3 and 6.6 percent respectively; (iii) countries with between 100 to 400 thousand square kilometers of r­ainforest area, including Venezuela, Guyana, Suriname, with 5.7, 3.1 and 2.1 percent of the Amazon rainforest respectively; and (iv) countries with less than 100 thousand square kilometers of rainforest area, which includes Ecuador, with 1.1 percent of the Amazon rainforest. It should be noted that the ecological 96 97

96 97

total Amazon area according to the hydrographic criteria (second column). Calculated based on the acto/unep data. ec and acto, supra note 71, at 10. ec and acto, supra note 71, at 10.

452,572 km2 483,164 km2

4,196,943 km2 4,213,463 km2

Brazil

Colombia

567,303 km2 475,278 km2

Bolivia

Consists of a mosaic of extensive upland and seasonally flooded (várzea and igapó) Amazonian forests, flooded savannas, semi-humid transition forests in the direction of the Cerrado, and sub-Andean and Yungas forests (the latter being characterized by high biodiversity). Wide variety of physiognomies, with dominance of flat-topped interfluves covered by evergreen tropical forests and submontane forests associated to infrequent elevations. It includes a transitional zone between rainforest and savanna like areas (locally called “cerrado”), and large extensions of sandy soils with structural and floristic patterns of forest and sandy savannas highly and locally adapted, called “campinaranas” and “campinas,” respectively. Periodically flooded wetlands have vegetation types that vary from wet fields to Palm Swamps (locally called veredas) and riparian forests. The Amazon region incorporates hydrographic as well as biogeographic political administrative boundaries: (i) the basin boundary in the western sector is defined by the drainage divide in the upper part of the eastern mountains of the Colombian Andes; (ii) the northern sector reaches up to where the forest cover limits with the natural savannahs in the Orinoquia; (iii) the southern and eastern boundaries limit the international borders of Colombia with Ecuador, Peru, Brazil and Venezuela; and (iv) the ecosystems include the Eastern Mountain “Paramos,” birth of important rivers which cross the Amazon basin, to areas of the tropical rain forest. These ecosystems range from Andean, flood plains, mainland to xeric and savannahs.

Notes from raisg100

acto98

Country

raisg99

Amazonian territory according to ecological criterion ( forest cover)

Table 3

18 chapter 1

142,800 km2

391,296 km2 453,915 km2

Suriname

Venezuela

There are several different classifications of ecosystems in the Peruvian Amazon. Most of them divide this region into two large landscapes: The Amazonian lowland, located below the 500 to 800 msnm and the high jungle or montaña above the Plain and up to 3600 msnm. However, this classification simplifies the eco-systemic diversity in contrast with that postulated by Encarnación (1993) who identifies 16 types of vegetation in the Amazon lowland defined by the predominant plant species or by the type of waters that flood the forests. Historically known region of the Amazon lowland rainforest biome in northern South America. It is equivalent to the Venezuelan Guiana Shield region, which occupies, in its widest interpretation, the states of Amazonas, Bolívar and Delta Amacuro. N/A

Starts in the Andean-Amazonian transitional forests, at 1,300 meters above sea level along the foothills of the Andes, and moves toward the Amazon floodplain to about 300 m altitude it is dominated by several types of lowland evergreen forests including flooded forests of white and black water, palm forest with a significant presence of lacustrine grasslands and other non forested ecosystems. The entire country. The entire country.

98 unep, acto and ciup, supra note 4, at 41. 99 raisg, supra note 85, at 11. Numbers are approximate. 100 Id., at 11.

98 99 100

6,825,421 km2

782,786 km2 782,813 km2

Total

214,960 km2 N/A

Guyana French Guyana Peru

91,045.74 km2

76,761 km2

Ecuador

Introduction

19

20

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criterion shows a larger difference between the parameters used by the acto and raisg.101 Comparing the rainforest area with the national territory of each country, this scenario changes significantly. Indeed, in five of the eight countries (Bolivia, Brazil, Guyana, Peru, and Suriname), the Amazon area is over half of their total territory. Venezuela and Colombia are close, with around 40 percent, followed by Ecuador, with the smallest percentage. The analysis shows that there is a great discrepancy between the regional and national relevance of the rainforest. Indeed, a closer look shows that despite a smaller significance regionally, the Amazon portion of some of the countries’ areas have a large relevance nationally. Bolivia and Peru, for example, countries included within the medium influence category, both have between 65 and 75 percent of their national territory composed of the Amazon Basin. In this sense, they are the most “Amazonian” countries through an ecological perspective. Ecuador and Brazil fall shortly behind, with close to half of their respective territories composed by the Amazon Basin. The basin has a significant smaller influence in Colombia, encompassing 30 percent of its territory. Lastly, Venezuela and Guyana have around five percent of their national territory considered Amazonian through this perspective, which corresponds to their influence in the entire basin. In this sense, while regionally Brazil has the largest area and the most relevant ecological role, the same cannot be said according to a national perspective. Indeed, the rainforest has a significant role within all countries, and, as will be discussed in later chapters, local policies are constantly at odds with the protection of the forests. Table 4 shows the percentage of the Amazon Rainforest compared to both to the national territory and the total rainforest area. Political-Administrative Criterion A third way to define the boundaries within Amazonia is to refer to each state’s recognized limits. Most of the Amazonian states have laws that have l­egally established those boundaries for protection and/or developmental policies. Countries can be grouped into three categories: (i) countries that have 101

101 Bolivia has almost 100 thousand square kilometers difference between the parameters used by the two studies; Venezuela, around 60 thousand square kilometers; Colombia, around 30 thousand square kilometers; Brazil, around 20 thousand square kilometers; and Ecuador and Peru both with around 15 thousand square kilometers difference between the parameters used by the two studies.

21

Introduction Table 4

Percentage of Amazonian territory according to ecological criterion

Country

Total country territory

Bolivia Brazil Colombia Ecuador Guyana Peru Suriname Venezuela Total

1,098,581 km2 8,514,876 km2 1,141,748 km2 283,561 km2 214,960 km2 1,285,216 km2 142,800 km2 916,445 km2 13,598,187 km2

Territory ranking % of national rainforest according world / Amazonia to ecological criterion102

25th / 4th 5th / 1st 26th / 3rd 74th / 6th 85th / 7th 20th / 2nd 92nd / 8th 33rd / 5th N/A

Over total national area

Over total rainforest area

51.6% 49.3% 39.6% 27.1% 100.0% 60.9% 100.0% 42.7% N/A

8.3% 61.5% 6.6% 1.1% 3.1% 11.5% 2.1% 5.7% 100%

established boundaries in their constitutions;103 which includes Bolivia and Ecuador; (ii) countries that have established boundaries in their federal laws, including Brazil; (iii) countries that have established boundaries in executive degrees or other policies from the executive government, including Colombia, Peru and Venezuela; (iv) and countries without any official boundaries, including Guyana and Suriname. The political-administrative criterion extends Amazonia over a 7,413,827 km2, representing 54 percent of the total area of the eight Amazon countries. Using this criterion, Brazil accounts for 67.9 percent of Amazonia, followed by Bolivia with 9.8 percent, Peru with 8.8 percent, Colombia with 6.4 percent, Guyana with 2.9 percent, Suriname with 1.9 percent, and Venezuela with 0.7 percent.104 Table 5 shows the countries’ Amazonian territory according to the 102 103 104

102 Percentage of country’s Amazon area based on the national territory according to the ecological criteria (first column). Percentage of country’s Amazon area based on the total Amazon area according to the ecological criteria (second column). 103 The constitutional environmental aspects of Amazon countries will be analyzed in subsequent chapters. 104 unep, acto and ciup, supra note 4, at 41.

477,274 km2

115,613 km2

Ecuador

5,034,740 km2

Brazil

Colombia

724,000 km2

116,605.87 km2

483,164 km2

5,217,423 km2

156,267 km2

Article 390 of Bolivia’s Constitution defines the Bolivian Amazon as a strategic area, specially protected for the comprehensive development of the country given its environmental sensitivity, existing biodiversity, water resources, and eco-regions. It is understood to encompass the entire department of Pando, the province of Iturralde in the department of La Paz, and the Ballivián and Vaca Diez provinces in the department of Beni. The extent of the political and the hydrographic criteria are the same. Region of planning and incentive to occupation called “Amazonia Legal,” defined by Federal Law 1806 from January 6th, 1953 with the political aim of integrating the region to the national territory and foster its development. It consists of the Brazilian north region states (Acre, Amazonas, Amapá, Pará, Roraima, Rondônia and Tocantins), Mato Grosso and a portion of Maranhão (west from meridian 44°). The political criterion extends beyond the hydrographic and ecological criteria. The political-administrative division covers the southern part of the department of Vichada; the southeastern of the Meta Department; the entire territory of the departments of Guainia, Guaviare, Vaupes, Amazonas, Putumayo and Caqueta; “la Bota Caucana”, in the department of Cauca and the Amazonian watershed of Nariño (the highest part of the Guamuez, Sucio, San Miguel and Aguarico rivers). The basin’s administrative districts or municipalities are in total 78. Fifty-eight correspond to municipalities (41 fully included in the region and 17 partially included) and 20 departmental administrative districts, all included in the region (Murcia Garcia et al., 2009). The extent of the political and the ecological criteria are the same according to raisg. Article 250 of the Constitution of Ecuador of 2008, referred to the Ecuadorian Amazon as the territory of the Amazon provinces and states that it is part of an ecosystem necessary for

Criteria according Criteria according Notes107 to acto105 to raisg106

Amazonian territory according to political-administrative criterion

Bolivia

Country

Table 5

22 chapter 1

N/A

53,280 km2

782,813 km2

In terms of political units, the Peruvian Amazon includes the entirety of the Departments of Loreto, Ucayali and Madre de Dios and a part of the Departments of Amazonas, Cajamarca, Huancavelica, La Libertad, Pasco, Piura, Puno, Ayacucho, Junín, Cusco, Huánuco and San Martín. Source: minam 2009. Mapa de Deforestación de la Amazonía Peruana – 2000. Memoria Descriptiva, Lima, p14. The extent of the political and the ecological criteria are the same according to raisg. Relates to the forest area.108 Officially includes only the hydrographic boundaries of the watershed. The extent of the political and the hydrographic criteria are the same. N/A

105 Id., at 41. Based on official government information provided by Amazon countries. According to the political-administrative criteria (noting that Venezuela and Bolivia only use the hydrographic criterion to define Amazonia, which is therefore recognized as being political-administrative). 106 raisg, supra note 85, at 11. Numbers are approximate. 107 Based on raisg, supra note 85, at 11, and complemented with additional research. 108 ec and acto, supra note 80, at 2.

105 106 107 108

7,413,827 km2

142,800 km2 53,000 km2

Suriname Venezuela

Total

651,440 km2

214,960 km2 N/A

Guyana French Guyana Peru

the environmental balance of the planet. This territory will be a special land for which there will be a comprehensive planning law including social, economic, environmental and cultural issues, with a land use planning to ensure the conservation and protection of ecosystems and the principle of “Sumak Kawsay” (Good living). The Ecuadorian Amazon region comprises the provinces of Sucumbios, Napo, Orellana, Pastaza, Morona Santiago and Zamora. The political criterion extends beyond the ecological criterion but falls below the hydrographic criterion. Relates to the forest area. Without information.

Introduction

23

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chapter 1

political-administrative criterion, based on the data of the two reports previously mentioned. The political-administrative criterion contrasts substantially from the percentages encountered in the hydrological and ecological criterion. Indeed, in some cases, such as the territories of Bolivia, Colombia, Ecuador, Guyana, and Suriname, the political-administrative criterion presents an area in ­between the hydrologic and the ecologic criteria. In other cases the political-­ administrative area is higher. Brazil is an example, as it includes the cerrado area in the criterion. Finally, countries such as Peru and Venezuela have smaller territories according to the political-administrative criterion. Table 6 shows the percentage of Amazonian territory compared to both the national territory and the total regional area. For the purposes of this book, the ecological, as well as the political-administrative criteria will be most widely used. Since the focus of the research is on forests, the ecological parameter and the discussions on how to define it are Table 6

Percentage of Amazonian territory according to political-administrative criterion

Country

Total country territory

Bolivia Brazil Colombia Ecuador Guyana Peru Suriname Venezuela Total

1,098,581 km2 8,514,876 km2 1,141,748 km2 283,561 km2 214,960 km2 1,285,216 km2 142,800 km2 916,445 km2 13,598,187 km2

Territory ranking % of Amazonia according to world / Amazonia ­political-administrative criteria109

25th / 4th 5th / 1st 26th / 3rd 74th / 6th 85th / 7th 20th / 2nd 92nd / 8th 33rd / 5th N/A

Over total national area

Over total pol.-adm. area

65.9% 59.1% 41.8% 40.8% 100% 50.7% 100% 5.8% N/A

9.8% 67.9% 6.4% 1.6% 2.9% 8.8% 1.9% 0.7% 100%

109

109 Percentage of country’s Amazon area based on the national territory according to the political-administrative criteria (first column). Percentage of country’s Amazon area based on the total Amazon area according to the political-administrative criteria (second column).

Introduction

25

particularly relevant. However, as this analysis is legal rather than scientific, the political-administrative boundaries define the scope of laws and policies applied to the region, including the percentage of each country characterized as Amazonian biome, and are therefore prioritized. 1.3

About This Book

The discussion of what defines Amazonia is at the core of this research, as it delineates the laws applied to the region. The Amazon rainforest has amazed us for centuries. Amazonia is remote, and even among the countries that share it, a distant reality. Sparsely populated, the nationals that know the forest and cherish it are often the ones that live there. The Amazon rainforest is less studied than the ocean floor, and there is a lot about it that is still unknown. In this sense, it still is somehow seen as an “El Dorado,” a rich place that can solve all of humanity’s current problems, but is nevertheless a mystery. On the other hand, Amazon countries have often been criticized for not taking proper care of the region, with questions by the international community as to whether they even deserve to own it in the first place. Discussions are often charged, with passionate opinions on both sides. Solutions have been widely suggested, with no agreement that satisfied all stakeholders involved. No country or person has found comprehensive answers or solutions yet. As a result, deforestation remains a severe problem and a constant threat. Preserving Amazonia and preventing the reduction of biological diversity is one of the greatest environmental challenges facing Amazon countries.110 This book contributes to a better understanding of the legal system of the Amazon rainforest. Through a belief that the first step to achieving solutions remains in the law, the book seeks to lay the groundwork for academics, practioneers and policy-makers alike. As the first comprehensive work on the subject, it introduces the legal framework of environmental law, and forest law in particular, at the international, regional, and national levels. While it does not provide a solution to the challenges that Amazonia faces, it explains the ways in which the law can be used to formulate effective responses. This book was written with three different key concepts in mind: forests, regional cooperation, and protected areas. Although waters have great significance in the region, this book focuses on forests. Unlike waters that travel across countries, forests are more subscribed to a specific territory. National policies are more easily applied, with less consideration as to the impact to 110

110 unep, acto and ciup, supra note 4, at 109.

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neighboring countries. While there is broader international and regional ­regulation applied to transboundary waters, there are still limited rules as to forests that spread across different territories. The book therefore focuses on forest law, although it mentions broader legislation when relevant. Many years practicing international environmental law have taught me that the answers to the regional challenges faced in Amazonia lie in a combination of cooperation and protected areas. Cooperation therefore remains the focus throughout this book. Amazonia is shared, and shall therefore be protected through shared efforts. The comparative parts of this book were therefore developed with cooperation in mind. Regardless of how to do it, it is clear that any solution shall involve all Amazon countries. Cooperation is key. National laws were therefore analyzed to find ways in which countries can cooperate, filling the gap of international and regional law. Instead of analyzing the broad legal framework that applies to forests at the national level, which are often poorly implemented, the book focuses on case studies of policies that have effectively helped protect the rainforest and curb deforestation. The case studies focus on protected areas and financial mechanisms that have helped fund conservation policies. Indeed, conservation shall be promoted through protected areas. However, establishing them is only the first step. While countries have vast protected areas, deforestation remains an issue. The threats to the forest are essential to understanding the flaws in the existing legislation. The main challenge remains the high cost of conservation. The book thus presents some examples of solutions that have shifted the balance between conservation and economic development to the former rather than the latter. The case studies show some examples that could be replicated regionally. Chapter 2 provides an overview of the past threats to Amazonia. It analyzes the development of a destructive pattern in the region, which started many centuries ago, creating a mentality of the forest as a source of resources to be taken. Through this mindset, which persists to this day, the regional landscape was shaped. After analyzing some of the repeated actions that created it, the chapter addresses specific regional challenges Amazon countries currently face in Chapter 3. As developing countries, governments are constantly trying to balance development and conservation. Understanding the conflicting interests at stake is essential to fully grasping the region. Chapter 3 therefore focuses on current deforestation, with the specific emphasis on the economic activities that threaten the region. Additionally, the chapter gives an overview of the threats and opportunities presented by climate change in Amazonia. Chapters 4 through 9 focus on the development of regional cooperation between the Amazon countries. It discusses how the Amazon countries organized

Introduction

27

themselves through the Amazon Cooperation Treaty (act), and the ­Amazon Cooperation Treaty Organization (acto), created decades later. As the only international framework that includes all Amazon countries, the regional perspective focuses on the developments within its framework. In each phase of cooperation, the specific initiatives of the environmental agenda, and projects that advance forestry policies and protected areas are analyzed. The study also provides a parallel to the development of International Forest Law during the same period. The failure to agree on a forest treaty at the i­nternational level often resonates with the challenges faced regionally. In addition, the developments at the global level have often influenced those at the r­ egional level. For this purpose, they are analyzed concomitantly. Chapter 4 provides a historical analysis of regional cooperation from initiatives in the colonization era to the negotiation of the act, which was agreed on in 1978. It presents the early stages of cooperation between newly independent countries, as well as some of the initiatives in creating an international body for Amazonia that, albeit unsuccessful, paved the way to the act. Finally, it examines the negotiations between Amazon countries for an Amazon Pact in the 1970s, and some of the concerns that shaped the way its language developed. The period culminates in the agreement on the 1978 act, leading the way to the following period. At the global level, the period saw the rise of environmentalism, starting with international organizations such as iufro and the iucn. Through the 1972 Stockholm Conference and Declaration, International Environmental Law effectively entered a new phase. Chapter 5 explores the first period under the framework of the act, starting with the signing of the treaty and the years after it entered into force. The defensive-protectionist phase covered the 1978–1989 period, and presents some of the early developments of cooperation in the region. After the Treaty came into effect in 1980, there was a period of inactivity due to the countries’ different realities, institutional weakness and scarce social recognition. In addition, the Treaty was inactive due to the failure of the act in recognizing the Amazon region as a priority to the sovereign states.111 During that phase, there was a general concern in expressing sovereignty over their shared Amazonian patrimony. Due to the global pressure and concern over the region, the act decided to shift its political-diplomatic efforts by making it clear that the shared responsibility for the environment between developed and developing countries is common but differentiated. In addition to discussing the development of Amazonian cooperation in the first phase, the chapter analyzes the 111

111 acto, Strategic Plan 2004–2012, 11 (2004), available at http://otca.pagina-oficial.com/­ assets/documents/20161220/104e8a0adc01c25d4813b4b1b3b4fdbb.pdf.

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treaty itself, presenting the main aspects that characterize it, as well as the original structure of cooperation. It thus presents the principles that define it, the rights and duties of member states, and provides an overview of its original institutional setting. Finally, the chapter briefly looks at the inception of International Forest Law, which was characterized, during the period, by one of the early examples of a conservationist aspect in a commodities agreement, embodied in the itta-1983. The period also saw the publishing of the Brundtland Report, which coined the term sustainable development – a term which later became the core of the act. Chapter 6 discusses the second development phase of the act, encompassing the 1989–1994 period. Like the previous period, it saw few developments within the treaty’s framework. However, it was particularly important for strengthening the political commitments of member countries to regional cooperation, through two meetings of the heads of state held in 1989 and in 1992. The commitments assumed then reshaped the act, gearing the cooperation process towards an environmental focus, and a platform for Amazon countries to present a unified voice at the global level. The change was particularly ignited by the boom of the international environmental agenda, which provided an opportunity for the act to reinvent itself. In particular, the 1992 Manaus Declaration positioned the act as a unified body before the 1992 United Nations Conference on Environment and Development. This turning point set the stage to a more equitable dialogue between developed countries and the Amazon countries.112 Indeed, it paved the way for one of the main functions of the act/acto, the role of a unified voice for Amazonia, developed later on, as well as one of the most important arguments presented by developing countries, the principle of common but differentiated responsibilities. Chapter 7 discusses the third development phase of the act, encompassing the 1995–2002 period. It saw the most significant changes in the structure of the treaty, leading to institutional maturity. The period was the result of the growing efforts of the member countries and the need to consolidate what had been achieved so far. As a result, the Permanent Secretariat was created. An Amendment Protocol officially shaped an international organization of ­Amazon countries, and transitioned the act to the acto. The process culminates when the countries complied with the deposit of the ratification of the Amendment before the Brazilian government, on August 2002. In addition to delineating the process that led to the acto, the chapter analyzes the Amendment Protocol and its implementation, as well as the structure of the acto as a new organization. Finally, it discusses the negotiations for a new financial 112

112 Id., at 17.

Introduction

29

mechanism, which brought cooperation to a new level, strengthening the environmental agenda as a consequence. Indeed, the period reinforced the commitment of countries to the environmental agenda, and to sustainable development in particular. It promoted an active participation of regional and local players, especially the importance of the role played by the local communities and indigenous peoples.113 In addition, environmental projects were largely advanced, achieving practical results that were unusual in the previous periods. Specifically, three forest-related projects were highlighted in the chapter, namely: (i) the Tarapoto Process on Criteria and Indicators of Sustainability of the Amazon Forest, (ii) the Pucallpa Proposal, and (iii) the Regional Program on Planning and Management of Protected Areas in the Amazon Region. Finally, the unified voice of Amazon countries was largely echoed at international negotiations. The “joint foreign policy” agenda by Amazon countries became a staple during the third phase of cooperation. The third period of cooperation between Amazon countries was concomitant to increased efforts in forest protection at the international level. In particular, the Intergovernmental Panel on Forests (ipf) and the Intergovernmental Forum on Forests (iff) evolved as a response to the failure to adopt a legally binding international forest convention. The work developed by the groups were further advanced by the creation of a body responsible for the forest agenda at the United Nations, the unff, and the Collaborative Partnership on Forests (cpf), responsible for its implementation. Chapter 8 discusses the fourth development phase of the act, encompassing the 2002–2009 period. Building on the strengthened institutional structure of the acto, the period adopted for the first time a strategic agenda, paving the way for the achievement of practical results and directing the organization towards a thematic focus. Through the adoption of the 2004–2012 Strategic Plan, the period saw significant developments in the thematic agenda of the acto, leading to institutional visibility. The chapter analyzes the institutional developments observed throughout the period, the Strategic Plan specifically, as well as its implementation. With the adoption of the Strategic Plan, a proper budget, and support from several external organizations, projects and plans were advanced successfully, leading to an effective trend of development. Indeed, the plan guided the organization in the following years, and allowed for the further advancing of the environmental agenda. The Strategic Agenda promoted the sustainable development of Amazonia, and suggested ways in which to advance conservation and sustainable use of natural resources. The general goal was to change 113

113 Id., at 18.

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the unsustainable pattern of exploitation that had been for decades promoted in the region. Despite the insufficient funds and the institutional crisis that the acto was under at the second half of the fourth period, several projects advanced the environmental agenda. Specifically, the chapter highlights the second phase of the Tarapoto Process, and the beginning of a program developed to monitor deforestation. Within the framework of protected areas, the acto developed the Biodiversity Program, the Project “Strengthening of Joint Regional Management for the Sustainable Use of Amazonian Biodiversity”, the Amazon Regional Program, and supported the first trinational protected area under its umbrella, in the La Paya (Colombia), Güeppí (Peru) and Cuyabeno (Ecuador) areas. Climate change also became a core thematic focus of the treaty, embodied in a project developed for the management of water resources. With the renewed structure and a new Secretary-General, the acto achieved many concrete actions in the first years of the fourth phase. Nonetheless, the period ended with a political stalemate, led by disagreements on the election of the Secretary General and financial struggles faced by the organization. As a consequence of the strategic plan and the Tarapoto Process, countries effectively participated in the unff, allowing for a joint position from the Amazon countries. During this phase, discussions at the global level on the significant impact and role of the Amazon region, such as the unfccc, the un Forum on Forests, and the cbd, cites, and Doha Rounds (omc). Notably, the NonLegally-Binding Forest Instrument represents the culmination of this period’s increasingly expansive recognition of both the importance of and the complex nature of sustainable global forest management, showing that the international community was gradually coming together to recognize the multi-faceted and deeply challenging nature of building broadly-applicable policies which adequately account for global differences while incentivizing partnerships between public, private, and ngo sectors to protect the world’s forests. Chapter 9 discusses recent developments of the act/acto, up to the beginning of 2017. It encompasses the 2009–2017 period, called the “revitalizing the acto phase”. The period began with the 2009 Meeting of the Presidents, which relaunched the acto after the political stalemate of the previous period, endowing it with a modern role according to two specific mandates: to develop a new agenda and once again strengthen the institution through a set of revisions of regulations. A new Strategic Agenda of Amazon Cooperation was adopted, giving the organization a guideline for the 2010–2018 period, and specific activities in the short, medium, and long terms. The chapter thus analyzes the institutional developments of the organization throughout the period, the contents of the Strategic Agenda, and its implementation, with particular emphasis on the structural changes and the institutional challenges

Introduction

31

faced to make it effective. In addition, it takes a closer look at three aspects of the environmental focus contained in the Strategic Agenda: forests, protected areas, and climate change. After presenting the goals of the agenda in the three areas, a more in-depth analysis of the implementation is provided. Indeed, the environmental agenda greatly developed during the fifth phase of cooperation, with the implementation of a series of projects that started in the previous period. In the forestry agenda, priority was given to the ­Monitoring Deforestation Project, and the Tarapoto Process, which entered its last implementation phase. The Monitoring Deforestation Project successfully expanded the Brazilian technology to all Amazon countries, showing one of the strengths of the organization in assisting the Amazon countries. In order to promote more regional information, the geo Amazonia was developed, a report based on unep’s Global Environmental Outlook methodology. These proved that information gathering and technology transfer are successful roles played by the acto. The protected areas agenda developed at a slower pace, and had to be supplemented by initiatives from other stakeholders, which advanced regional cooperation outside the act/acto’s framework. Within the climate change thematic focus, the organization continued to implement the gef Water Management Project, providing data to propose a sustainable and integrated water and land resources management through an intergovernmental strategy. Finally, recent developments of International Forest Law are noted, specifically the approval of the Sustainable Development Goals, and the Paris Agreement. International Forest Law was particularly advanced, especially through unff gathering. In particular, the UNFF9 promoted the International Year of Forests, and the UNFF11 adopted a Ministerial Declaration shaping the path for a desirable future for forests. The New York Declaration on Forests was adopted in 2014 as another non-legally binding agreement, which contained a timeline to cut natural forest loss as a way to address climate change and limit global warming to 2°C. UNFF12, which took place in the beginning of 2017, reviewed the strategic plan for forests, moving towards a cross-cutting plan that addresses the forest-related targets of the 2030 Agenda for Sustainable ­Development, the Aichi Biodiversity Targets, and the Paris Agreement on Climate Change. Ending the historical analysis, a critical review of the efficiency of the treaty is warranted. The subsequent chapters explore whether and how the act/acto can continue to improve, breaking the slow pattern of development, and inducing increased cooperation among Amazon countries through common policies and joint efforts towards protection. Chapter 10 thus provides a broad analysis of the act/acto, discussing some of the challenges faced. Before

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looking at the regional scheme of cooperation, however, two questions are discussed: whether forestry shall be regulated at the regional level, and whether the acto is the appropriate forum for regional cooperation and development of the forestry agenda in Amazonia. Based on the answers to both questions, the second part of the chapter addresses the roles the acto actually can fulfill. While there has been e­ normous criticism to the act/acto framework, mostly due its slow development, bureaucratic institutions, and loose implementation, it has s­uccessfully ­ ­developed some interesting initiatives, especially in its forestry agenda. After the broad historical analysis of the development of regional cooperation in Amazonia, specifically focused on the act’s framework, this chapter critically analyzes the acto and asks whether it can induce socio-economic sustainability in Amazonian forests through a regional approach. It discusses how cooperation may be facilitated, and how the acto can serve this purpose. Some suggestions are presented on what could be improved within the acto’s framework to reach more effective practical purposes. The third part of the chapter specifically looks at Brazil’s successful experience at drastically reducing deforestation rates through a broad set of policies. Although the country historically presented the largest deforestation rates in the region, it showed a surprising turnaround after 2004 through multi-­ stakeholder and multi-level initiatives that quickly proved fruitfull. B ­ razil’s ­example informs the following chapters as a case study to be followed throughout the region. Based on Brazil’s experience, as well as on other countries innovative policies to address deforestation, chapters 11, 12, and 13 address some of the ­challenges identified in Chapter 10 more specifically. Indeed, Chapter 11 delves deeper into one of the main gaps of the treaty, the lack of legally binding environmental obligations. It specifically discusses whether the constitutional law of countries might fill this gap, ensuring enforceable obligations towards environmental protection. It analyzes the environmental constitutional framework of Amazon countries, asking whether constitutional environmental law fills the regulatory gap, ensuring there is an inherent duty to protect Amazonia. It compares how constitutional law has shaped the way for environmental protection, and concludes with an analysis of whether it indeed fills the gap. Chapters 12 and 13 look at two areas that have failed to induce the necessary developments in regional cooperation: protected areas and financial mechanisms. The first one, analyzed in Chapter 12, is thematic. Considering protected areas have been used worldwide as one of the main conservation tools, especially by Amazon countries, it argues for an increased participation in the subject by the acto. The second one, analyzed in Chapter 13, is more procedural.

Introduction

33

Since the lack of sufficient financial resources has often been used as an excuse for the lack of proper implementation of policies, and remains the main challenge to be overcome, the chapter looks at some initiatives by Amazon countries, using national experiences as case studies to be replicated throughout the region, having the acto as a guiding leader. Chapter 12 focuses on national initiatives for the establishment and implementation of protected areas as a conservation tool in Amazon countries. Based on the premise that protected areas represent the fundamental building blocks of conservation strategies, and are critical for maintaining a healthy environment, the chapter looks at some of the innovative ways these are implemented in Amazonia. Speficially, it looks at how countries are complying with international commitments to establish protected areas, such as the Strategic Plan for Biodiversity 2011–2020, with its 20 Aichi Biodiversity Targets. It begins with an analysis of the most recent data on existing protected areas and indigenous territories in Amazonia, and the deforestation rates observed within them. It then analyzes the need for a regional effort on protected areas, and discusses why such an approach would be preferable in the case of A ­ mazonia, as opposed to an individual effort by each country. It then explains some of the existing initiatives in regional approaches for protected areas, including some unsuccessful discussions developed within the act’s framework, as well as other more successful initiatives adopted by Redparques, outside the act/acto’s framework. The chapter then analyzes three different models for protected areas, through specific examples observed in the region. The first one represents a national approach, using Brazil’s Amazon Region Protected Areas (arpa) program as a case study that addressed the many challenges in implementation often faced throughout the world. The second one presents some initiatives in transboundary-protected areas, showing how collaboration between neighboring countries can prove fruitfull through shared resources. Finally, the chapter discusses the role of privately protected areas in promoting conservation, giving an overview of the legal framework of Amazon countries, and looking at some examples more specifically. Chapter 13 focuses on the financial mechanisms developed by countries to advance conservation efforts, addressing one of the main challenges in implementation. This chapter thus looks at national initiatives for forest protection, providing concrete case studies based on a few strategies that provide the n ­ ecessary funds to protect forests. Following a similar funding strategy as the projects advanced by the acto, Colombia’s “Forest Conservation and Sustainability in the Heart of the Amazon” project relies on funds from the gef. Through a different approach, Brazil, Guyana, and Ecuador created, in similar

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ways, a national fund based on contributions to induce conservation in the Amazon rainforest. Finally, Ecuador sought a national conservation agreement scheme, which provides economic incentives to individual landowners and indigenous communities who voluntarily commit to conservation and protection of their native forests, moors or other native vegetation. These examples inform alternatives for the acto to more actively engage in the region, gathering the necessary funds to do so. Chapter 14 ends the national analysis through a discussion of the stakeholders involved in the development of policies and enforcement of protection in Amazonia. It begins by briefly discussing the relevance of stakeholders in shapping environmental policies Latin America. It then summarizes the structure of environmental organizations in each country, in particular as it pertains to forests. Through an analysis of the government structure, the chapter considers how environmental matters, and forest matters in particular, are dealt with by the government. For the purposes of this chapter, the following government bodies were identified in each country: the environment management agency, the forestry agency, as well as the protected areas agency. In addition, some countries have a special body within its ministry of environment to address the Amazon rainforest specifically, which are highlighted when applicable. The chapter also looks at the structure of the Permanent National Commissions (pncs), the national agencies in charge of coordinating with the acto. Finally, it provides a brief overview of other non-governmental parties that make up important Amazonian stakeholders in cooperation for forest protection. These include nonprofit organizations, multilateral institutions, and others. Governance is paramount to environmental protection. By analyzing the government structure, it is easier to understand how environmental decisions are made. The analysis is done through the enhanced role of regional organizations such as the acto, and with the enforcement of the rules of protected areas in mind. Appendices to this book include the full text of the Amazonian Cooperation Treaty (Appendix 1), the Amendment Protocol to the Amazonian Cooperation Treaty, and the three declarations of the presidents of Amazon countries, adopted in 1989, 1992, and 2009.

chapter 2

History of Amazonia and Amazonian Deforestation The use of tropical forests has implications beyond the borders that ­contain them.1

∵ In order to understand Amazonia today, it is important to investigate how ­humans have occupied it and affected their natural environment through time. Chapter 2 therefore explains how the use of natural resources and environmental degradation has shaped the region. The chapter is divided into five sections that relate to historical periods: (i) occupation by indigenous groups in pre-Columbian times; (ii) European conquest and colonization; (iii) independence; (iv) military dictatorships; and (v) reestablished democracies. This historical study is by no means exhaustive. It provides a framework to understand how the Amazon region was settled, and how political periods shaped it. This analysis sets the stage for Chapter 3, which provides an overview of the challenges and economic drivers currently faced by Amazonia. Environmental historians often refer to three issues of particular interest that influence how a society relates to its environment: territories, commodities and knowledge.2 This approach is particularly relevant in the Amazon ­region. The development of Amazonia is the result of three factors combined: (i) the geographic and ecological diversity that influences human occupation processes and methods; (ii) the continued human presence in the region for 12,000 years, as well as the interruptions and lack of continuity of occupation of territory; and (iii) the diversity of colonization processes commenced by European countries in the 16th century, continued by the new independent national states in the 19th century.3 More recently, the region has been affected

1 Philip E. Wilson, Jr., Barking Up The Right Tree: Proposals for Enhancing the Effectiveness of the International Tropical Timber Agreement, 10 Temp. Int’l & Comp. L.J.at 232–233 (1996). 2 Gavin O’Toole, Environmental Politics in Latin America and the Caribbean, Introduction, 11–12 (2014). 3 unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 42 (2009).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_003

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by an increase in scientific knowledge, which has shaped laws and policies, and advanced environmental protection. 2.1

Occupation before Colonization

The large-scale degradation of tropical rainforests has become one of the iconic images of the impacts of the 21st century on the environment, and may be one of our century’s most profound legacies.4 Despite the current magnitude of this degradation, deforestation started long before that. Indeed, it dates back to ancient times. Human society was transforming the environment of the Americas long before European civilizations arrived.5 Evidence of community occupation within Amazon countries varies. The first known settlements date to 11,200 years ago at the Caverna da Pedra Pintada, in Brazil.6 Due to its geographical location, present-day Colombia was a c­ orridor for the movement of populations between Mesoamerica, the ­Caribbean, the Andes and the Amazon. Indigenous communities have inhabited what is now Colombia since 12,000 years ago.7 Complex prehistoric indigenous tribes populated what is now Brazilian and Venezuelan territory about 10,000 years ago, mostly in the Amazon region.8 The earliest evidences of human presence in the Peruvian territory have been dated to approximately 11,000 years ago. Bolivia and Suriname show signs of occupation by indigenous communities for over 3,000 years.9 Peru was home to the Norte Chico civilization,10 which flourished between 4,000 and 6,000 years ago. Guyana, which then also encompassed the territories of French Guyana and Dutch Guyana (Suriname), was populated by two indigenous groups, the Arawak along the coast and the Carib in the interior. 4 5 6

7 8 9 10

Richard A Betts et al., The future of the Amazon: new perspectives from climate, ecosystem and social sciences, 363 Phil. Trans. R. Soc. B 1729 (2008). unep, acto and ciup, supra note 3, at 42. A.C. Roosevelt et al., Paleoindian Cave Dwellers in the Amazon: The Peopling of the Americas, 272 Science, 373 (1996), available at http://www.sciencemag.org/content/272/5260/373 .short. For example, the Muisca, Quimbaya, Tairona. Large groups Tupis, Guaranis, Gês, and Arawaks. Most important subdivisions are ­Tupiniquins and Tupinambás. For example, the Aymara (2000 years), and the Tiwanaku (since 1500 bc). Also called Caral or Caral-Supe civilization. For more on the Norte Chico civilization, see Ruth Shady Solis et al., Dating Caral, a Preceraminc Site in the Supe Valley on the Central Coast of Pery, 292 Science 723–726 (Apr. 27, 2001); and Jonathan Haas et al., Dating the Late Archaic occupation of the Norte Chico region in Peru, 432 Nature, 1020–1023 (Dec. 23, 2004).

History of Amazonia and Amazonian Deforestation

37

Some scholars maintain that the impoverished soils typical of the tropics actually impeded the development of complex cultures in the Amazon region, while others argue that complex societies lived there.11 The second theory has recently found more support, as evidence shows that indigenous groups competed to settle on more fertile and productive lands. These were located on the banks of major rivers, in the Andean valleys, fertilized by annual floods, or in the valleys by Andean headwaters.12 The rich resources from rivers, tidal areas and mangroves provided communities with the means to flourish, and evidence from the Amazon basin indicates that the fertile lowlands may have supported millions of people in huge settlements. These groups were able to cultivate plants and establish landholding patterns, irrigation, and terracing systems, which allowed for communities to thrive and expand. Groups without similar access were smaller, and relocated often in the interfluvial areas. Since these areas were less fertile, their livelihoods were based on primary extraction, hunting and low scale agriculture.13 In the Peruvian-Ecuadorian zone, between 3500 and 300 b.c., a trade link existed between the Pacific coast, the Andean altiplano and the eastern slope of the Andes, called Upper Amazonia.14 Bolivia, Peru and Ecuador were also home to the Inca Empire, the largest state in Pre-Columbian America. Amazonia has been the subject of many studies and theories. Anthropologists moved away from the traditional romantic concept of the forest as an untouched environment, a terra nulis, or land of nobody, by showing that indigenous groups and hunters have altered and improved it through a soil management technique known as “terra preta”, which produced a highly fertile soil that shaped the region.15 “Terra Preta de Indio”, or Amazonian Dark Earths, is a nutrient-rich soil that was created from concentrated recycled waste.16 It was widely used in South America by pre-Columbian Indians from 500 to 2500 b.p., but was abandoned after the invasion of Europeans. While its origin is not entirely clear, it is widely accepted that it was used as an indigenous soil management technique.17 According to this theory, the modern Amazon rainforest 11 12

unep, acto and ciup, supra note 3, at 42. Gavin O’Toole, supra note 2, at 12. raisg, Deforestación en la Amazonía (1970–2013) 5 (2015), available at http://infoamazonia .org/2015/10/raisg-deforestation-in-the-amazon-from-1970-to-2013/#!/story=post-13786. 13 Gavin O’Toole, supra note 2, at 12. 14 Id., at 42. 15 Unnatural Histories: Amazon (bbc 2012), available at http://www.youtube.com/ watch?v=HUXLim2HIvU and http://www.bbc.co.uk/programmes/b0122njp. 16 Gavin O’Toole, supra note 2, at 13. 17 Cornell University, Department of Crop and Soil Sciences, Terra Preta de Indio, http:// www.css.cornell.edu/faculty/lehmann/research/terra%20preta/terrapretamain.html (last visited Nov. 15, 2016).

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would have developed over time with human influence.18 According to this theory, the modern Amazon rainforest would have developed over time with human influence.19 Pre-colonial Amazonian populations also altered the landscape by constructing drained cultivable plots and land elevations for agriculture, housing, defense and burials. These existed mainly in parts of Bolivia, Brazil, Guyana and Venezuela.20 The Amazonians even manipulated rivers and streams to modify the landscape. By the time of the conquest, Mesoamerican cultures had developed highly productive agricultural methods, including the technique for creating terra preta.21 2.2

European Colonization

When the Spanish and Portuguese disembarked in 1491, the landscape had already been shaped by 15,000 years of human activity.22 The present configuration of the Amazonian territory is the result of the occupation of European colonizers.23 According to the Treaty of Tordesillas (1494), South America was supposed to be divided between Spain and Portugal. However, the English, French and Dutch also claimed parts of the region, ending the Iberian domination of the continent. Brazil was discovered by the Europeans in 1500 and became a Portuguese colony. Settlements began in 1534, when King Dom João iii divided the country into fifteen decentralized and autonomous Captaincy Colonies.24 This form of territorial administration ensured that the entire territory would be explored and colonized through the assignment of land to private parties. However, the decentralized government was ineffective, and Portugal restructured the ­Governorate General of Brazil as a colony in 1549. Bolivia, Colombia, Ecuador, Peru and Venezuela became colonial territories of Spain after several explorations in the 16th century. Although Guyana’s territory was originally claimed by Spain, the Dutch were the first to establish colonies. The town of Santa María la Antigua del Darién in Colombia was the first Spanish settlement on

18 19 20 21 22 23 24

Gavin O’Toole, supra note 2, at 13. Id., at 13. unep, acto and ciup, supra note 3, at 44. Gavin O’Toole, supra note 2, at 13. Id., at 12. unep, acto and ciup, supra note 3, at 44. In the original: capitanias hereditárias.

History of Amazonia and Amazonian Deforestation

39

the ­continent in 1510. Quito was founded in 1534 on the site of the capital of Atahualpa’s Inca kingdom, after the defeat and capture of the Incas.25 The first decades of European colonization saw extreme violence and the overthrow of many local civilizations. As indigenous leaders resisted the incursions, communities were decimated through systematical killing. At the time of European discovery, the territory of present-day Brazil had as many as 2,000 tribes. Europeans led by Francisco Pizarro conquered the Inca Empire, in one of the most extraordinary downfalls in history.26 Afterwards, a search for spices and gold began, in response to the legend of the El Dorado and its promises of wealth.27 Most expeditions ended in death, since the Europeans did not learn how to survive in the forest.28 Francisco de Orellana was one of the first Europeans to successfully travel the Amazon River. In his travel journals, he described a complex civilization. Since no later traveler confirmed what he saw, his descriptions were for long thought to have been fictitious. However, recent excavations showed that approximately 5.5 million people populated the area in large civilizations in the 16th century, thus supporting the accuracy of Orellana’s descriptions.29 Orellana’s expedition allowed for more systematic penetration and area recognition, leading to the later development of gold mining and cotton cultivation following a rigorous plan to build a complex administrative structure.30 Colonization had an irreversible impact on the Amazon’s landscape, with the transformation of the ecology of large areas and the propagation of disease and non-native fauna and flora.31 Indigenous populations declined by 90 ­percent, mostly as a result of diseases. The demographic collapse in the Amazon Basin allowed for the regeneration of forests. By the late 18th c­ entury, many ecosystems once exploited had recovered. Since there was a limited scale of immigration during the early colonial era, food was abundant.32 ­Europeans 25

26 27 28 29

30 31 32

Helen Lord Clagett, A Guide to the Law and Legal Literature of Ecuador, 1 (1947), a­ vailable at http://heinonline.org.rlib.pace.edu/HOL/Page?collection=cow&handle=hein.cow/ gulllecu0001&div=1&country_code=EC. John Hamming, supra note 14, at 27. Willie Drye, El Dorado Legend Snared Sir Walter Raleigh, National Geographic, http:// science.nationalgeographic.com/science/archaeology/el-dorado/. John Hamming, supra note 14, at 28–35. John Hamming also calculates that between 4 and 5 million people inhabited the region, of which 3 million were in Brazil. They were divided in groups of approximately 400 people. Id., at 24. unep, acto and ciup, supra note 3, at 46. Gavin O’Toole, supra note 2, at 15. Id., at 17.

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brought new land-use patterns, and reproduced a mono-crop economy based on plantations, clearing lands to plant foreign species. Wheat, sugar and coffee were widely introduced.33 Plantations expanded greatly to serve Jesuit and Franciscan missions, causing further deforestation concentrated in small areas.34 Due to the Iberian land tenure system, lands were often concentrated in the hands of large landowners, creating forms of monopoly to secure labor and limit competition. Uncultivated property remained untouched, reducing the degree to which forests and soils were depleted.35 Deforestation was also caused by urban development, as small-forested areas were converted to open space surroundings colonial cities, such as Belém in Brazil or Moyobamba in Peru.36 The focus of the Spanish and Portuguese was the search for precious metals. Mining was the driving force of colonial expansion, and had a larger ­environmental impact than agriculture and human settlement. Gold was the most sought after commodity in the early 16th century, but was quickly replaced by silver as large deposits were found.37 Mining was a major source of deforestation as lands were cleared to provide timber for shafts and pasture for draft animals.38 Since the method for extraction of these metals used mercury, pollution entered rivers, poisoning the food chain and soil, leading to a devastating effect on indigenous groups. Forests were constantly burned, causing extensive soil erosion. In addition, indigenous groups were enslaved to work for the mining industry.39 Brazil’s territory was also intensively exploited for sugarcane in the 16th ­century and gold and 17th century, which were mostly exported to Europe. As a result, it became the largest and wealthiest colony, and European powers were constantly trying to take over the land. To ensure colonial power, expedition groups known as Bandeirantes advanced to the borders and otherwise remote areas such as the Amazon, in order to occupy them. While enslaved indigenous peoples were the predominant labor force throughout Amazonia, African slaves also played an important role in its development. In the Portuguese region, they were more numerous in the eastern part, working on sugar cane, rice, and cotton crops, as well as close to the 33 34 35 36 37 38 39

Id., at 16. raisg, supra note 12, at 5. Gavin O’Toole, supra note 2, at 17. raisg, supra note 12, at 5. unep, acto and ciup, supra note 3, at 46. Gavin O’Toole, supra note 2, at 18. Id., at 18.

History of Amazonia and Amazonian Deforestation

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frontier with Bolivia. These populations were the origin of quilombolas, fenced enclosures that still exist in Brazilian Amazonia. In Guyana, Suriname, and French Guyana, Africans made up the main work force, developing a culture known as the maroons. In Suriname, the African slaves fought the colonizers for decades.40 Interests serving overseas’ markets dominated the economy during the 16th and 17th centuries. The Amazon Basin became a territory for resource extraction, a character that remained until the early 20th century. Colonial policies were directed at satisfying European demand, and expansion into the Amazon was driven by the focus on tradable commodities. Economic exploitation of forests and rivers was at the heart of further penetration in the region.41 2.3 Independence Since the beginning of colonization, various movements had rebelled against Spanish rule. In the 19th century, most of these wars of independence succeeded, altering the defined borders in the Amazon region. Colombia proclaimed its independence in 1819, defeating pro-Spanish resistance a few years a­ fterwards. At that time, it consisted of what are now the territories of ­Colombia, Panama, Ecuador, and Venezuela, as well as parts of Guyana and Brazil. Venezuela and Ecuador seceded in 1830, and Panama in 1903. After a war with Peru over a territorial dispute involving the Amazonas department, the Putumayo River was established as a border between the two countries.42 Peru declared independence from Spain in 1821, and Bolivia in 1825. In the aftermath of disputes with neighboring countries, Bolivia lost over half of its territory in the following years, including the state of Acre, which was signed over to Brazil in 1903 and represents part of Amazonia.43 Brazil followed a different path, as the Prince of Portugal voluntarily proclaimed its independence in 1822. The Empire of Brazil was created, although it remained a unitary state under a constitutional monarchy and a parliamentary system, with the Prince as Emperor. Following a period of independence wars, Portugal officially recognized Brazil as an independent sovereign country 40 41 42

43

unep, acto and ciup, supra note 3, at 49. Gavin O’Toole, supra note 2, at 19. Rio de Janeiro Protocol. This designation influenced the long dispute between Peru and Ecuador over territories in the region, since it recognized Peru’s rights to the territory claimed by Ecuador. Treaty of Petrópolis (Nov. 11, 1903).

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in 1825. In 1889, Brazil became a presidential republic, with the proclamation of the Republic by the military. With independence, young states were left with large unoccupied ­territories, mostly foreign to them. It was important to promote overall occupation, expanding to new frontiers. Most of the Amazon areas within these young nations were unknown and isolated from the rest of the country. In the first years of the republic, most countries’ policies focused on public land concessions for colonization and reconnaissance explorations. For instance, Bolivia searched for an outlet to the Atlantic Ocean from the Amazonian rivers. In Colombia and Ecuador, the occupation of the Amazon had been monopolized by missionaries, which were expulsed at the end of the 18th century. Explorers had to rediscover the region after the republics were established. Brazil had the fastest occupation, with already-established cities and ports that were integrated with the inland regions of the country. Colonial methods of occupying the territory and the exploitation of the work force remained, with even greater violence against indigenous people.44 Although independence and the new republics brought different ideas and the development of capitalism, the region was still shaped by demand from the North for non-timber Amazonian resources. While independence opened the Amazon countries to new markets, they remained suppliers of commodities in the era of imperialism.45 Extractive sectors offered the new countries a path to economic prosperity, and the first wave of exploitation of Amazonian territories was therefore motivated by extractive activities. Amazonian rubber was the main natural resource in high demand because of the growth of the automotive industry in Europe and the usa.46 The rubber boom had the most significant environmental impact up to that point, caused by the extractive activities themselves, human migration and new settlements, and deforestation to enhance food supply in the region.47 Latex production was developed throughout Amazonia, and provided some infrastructure to the region. The rapid expansion of production, however, was made possible by to the introduction of steam-powered shipping, which allowed for regional transport, drastically reduced the duration of journeys along the Amazonian rivers, and connected the Amazonian foothills to the Atlantic.48 The expansion of rubber 44 45 46 47 48

unep, acto and ciup, supra note 3, at 50–51. Gavin O’Toole, supra note 2, at 21. raisg, supra note 12, at 5. Id., at 5. unep, acto and ciup, supra note 3, at 50–52.

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exports led to regional migration and immigration from other countries, and, as a consequence, to the growth of old urban centers.49 The rubber boom lasted until 1913, when plantations in Asia satisfied global demand. Competition led to an irreversible drop in prices and the collapse of the rubber-based economy. Many areas were abandoned, and new extraction fronts were opened in an attempt to diversify extractive activities. Human occupation of the land followed a pattern of exhausting local natural resources and causing severe environmental damage before moving on to another area. These unsustainable practices made it impossible for human settlements to remain in the affected areas.50 Modern occupation in Amazonia started in the 1930s, strongly influenced by the expansion of industrialization. Due to the Great Depression, countries in Latin America started to reconsider the reliance on export of commodities and import of manufactured goods, and started nurturing their own industries.51 Within the Amazon region, deforestation primarily occurred in the ­Brazilian portion, where livestock farming and unproductive large plantations replaced forests.52 In Venezuela and Ecuador, the oil industry started to develop, ­destroying millions of acres of tropical forests and changing land-use patterns. The discovery of massive oil deposits in Venezuela during World War i prompted an economic boom and changed the country from an underdeveloped exporter of agricultural commodities to one of the world’s leading exporters of oil. Oil production led to serious pollution and had a lasting impact on the environment and on indigenous groups. Since technology was rudimentary, repeated oil spills contaminated the land and the rivers.53 ­Colombia endured bloody political conflicts between the 1940s and 1950s, a period known as La Violencia. These conflicts led to the creation of an armed faction of guerrillas known as the Fuerzas Armadas Revolucionarias de Colombia or farc, which fought the government and the political apparatus.54 The rise of the farcs led to the increased occupation in the Amazon rainforest, as the groups have for long used the remote forest as their base. The occupation have had the unintended positive consequence of discouraging development within the 49 50 51 52 53 54

Id., at 54–55. Id., at 55. Gavin O’Toole, supra note 2, at 30. raisg, supra note 12, at 5. Gavin O’Toole, supra note 2, at 25. The conflicts have started in the 1960s, escalated in 1990s, but have decreased since the 2000s.

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rainforest due to the high risk of violence from the militia, which discouraged developers. 2.4

Military Regimes and Amazonian Occupation to Protect Borders

Notwithstanding the activities discussed above, the Amazon rainforest was, in general, sparsely populated until the 1960s. Authoritarian regimes that rose regionally in the 1960s and 1970s began to develop policies directed at integrating the Amazon region to the rest of the national territories, prompted by national security reasons. The context of military dictatorships is essential to comprehending the regional integration that started with the Amazon Cooperation Treaty (act), which will be discussed in detail in Chapter 4. Brazil, Bolivia, Ecuador and Peru suffered a long period of political instability and military coups during the 20th century, which endured until democracies were reestablished in the late 1970s and early 1980s. This period also saw the independence of Guyana and Suriname. A wave of government policies for Amazonian integration began. National land reforms geared towards occupying empty spaces helped consolidate sovereignty. However, deforestation was deemed essential to ensure the areas were in use, as untouched forests were left at the peril of settlers.55 In Brazil, the construction of highways was one of the main causes of loss and fragmentation of the forest ecosystem within its share of the Amazon. The highways integrated the region to the rest of the territory, bringing migrants as well as developers. The Amazon was virtually a free resource to be exploited in the name of national development with little regard for the environmental and social costs involved.56 The integration of Amazon lands occurred later in Ecuador, Colombia, Venezuela and the Guianas.57 2.5

Reestablished Democracies

In the 1980s, democracies were reestablished in Amazon countries, and national economies began to expand, leading to a period characterized by 55 56 57

Brazil (Plano of Valorização da Amazônia), Peru (creation of the Department of Affairs Orientales, Colonization and Land East), and Bolivia (Bohan Plan). Anthony Hall, Better red than dead: paying the people for environmental services in A ­ mazonia, 363 Phil. Trans. R. Soc. B 1925 (2008). raisg, supra note 12, at 5–6.

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­agro-industrial expansion in the context of a globalized economy. Development plans were no longer focused on food imports, but also on agricultural production for exportation. This led to the profusion of mono-crop rural enterprises covering extensive landholdings and utilizing mechanized production methods.58 Industries also expanded on the area, and livestock to supply food for the workers became the main cause of deforestation. Brazil’s Grande Carajás Project converted a large area of Amazon rainforest into the world’s largest industrial and agro-livestock center, with a massive impact on the regional ecosystem. The opening of the roads also allowed for informal mining to expand, with the garimpeiros, which promoted gold mining, constantly polluting Amazonian rivers.59 In the 2000s, the devaluation of Brazil’s currency and the increase in international oil and gold prices triggered the additional exploitation of natural resources, resulting in illegal mining and increased deforestation in the Andean countries. In Venezuela, the construction of hydropower plants, transmission lines, and the exploitation of mineral resources, especially iron and aluminum, caused environmental degradation. Brazil began the construction of huge dams for hydroelectric generation and interconnection to implement through cross-border projects, especially with Peru.60 The environmental impacts associated with these massive cross-border energy projects led to unprecedented rates of deforestation. 2.6 Conclusion As seen throughout this chapter, historic deforestation has been a constant challenge in Amazonia. Human presence in the region has continued for approximately 12,000 years, leading to patterns of destruction caused by a multitude of factors. Indigenous tribes, from complex societies to smaller groups, have shaped the region for millenniums. Some established landholding ­patterns that allowed them to thrive. The “terra preta”, a soil management technique said to have fertilized Amazonia, is one of the greatest examples of how these communities shaped the region, even by developing the forest themselves. With European conquest and colonization, a destructive pattern emerged. Replicating European landholding systems, the region was largely divided into 58 59 60

Gavin O’Toole, supra note 2, at 33. Id., at 37. raisg, supra note 12, at 6.

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large estates assigned to private parties. These would exploit the forests, ­rivers, and soils for economic purposes: gold and spices at first, plantations of sugarcane, and mining for precious metals afterwards. Indigenous groups were persecuted, leading to the killings of many tribes, and the overall reduction of the population to only 10 percent. Key themes can be highlighted from the role played by the environment and natural resources in the Amazon rainforest. Imperialism has been a key driver of resource extraction since the pre-Columbian era. As Latin America and the Caribbean entered the world economy, external forces defined their terms. The region thus became subordinate to the needs of the Northern countries. External demand pressured the abandonment of soils as these became exhausted, creating a tradition of frontier expansion marked by deforestation and soil erosion. Neocolonialism showed that these policies persisted, with elite alliances exploiting remote areas of their countries that were ethnically or racially distinct.61 Indeed, after independence, the new countries did little to change the paradigm marked by destruction, using the natural resources as their path towards prosperity. Amazon rubber was the commodity in high-demand then, and latex production thrived throughout the region. It was important to settle on the unoccupied territories, and ensure border protection. Investments in infrastructure thus began, bringing migrants and additional speculation. With the end of the rubber boom, many areas were abandoned, and the need to diversify extractive activities emerged. The pattern of destruction soon became obvious: exhausting local natural resources and causing severe environmental damage before moving on to another area. With industrialization, some Amazon countries started nurturing their own industries. Livestock farming and large plantations replaced forests. The oil and gas industry started to develop. Export booms in the early republics perpetuated policies that promoted agricultural and mineral production while causing deforestation. Reliance on mono-crop commodities nurtured new scientific state institutions for agricultural expansion magnifying the impact of development on the environment.62 With the military regimes that became common in Latin America throughout the 1960s and 1970s, integrating the Amazon region to the rest of the national territories became a priority for national security. These were especially motivated by a suspicion of an excessive international interest in the region, as will be explained in Chapter 4. It was once again essential to settle on unoccupied areas to ensure sovereignty. In the 1980s, with reestablished democracies, 61 62

Gavin O’Toole, supra note 2, at 40–43. Id., at 43–46.

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there was an agro-industrial expansion in the context of a globalized economy, leading to the profusion of mono-crop rural enterprises covering extensive landholdings and utilizing mechanized production methods. Mining, hydropower plants, and transmission lines proliferated, with massive cross-border energy projects leading to unprecedented rates of deforestation. The ways countries in Latin America and the Caribbean have utilized resources over centuries reveal how a lack of democratic norms have shaped environmental history. The region offers many examples by which to explore the relationship between environmentalism and democracy. Authoritarianism and centrism have often led to developmental policies that had little regard for the environment. Authoritarianism often leads to severe environmental implications, as rulers have little incentive to use resources sustainably, prioritizing rapid economic development to gain legitimacy and bolster security. The lack of democracy in the region has promoted quiet citizens that could do little to change the paradigm. Only recently have environmental policies arisen, with the establishment of legal rights for the protection of nature. Good ­governance, however, is at the heart of the rule of law, and the failure to enforce ­environmental norms has often led to degradation, despite the expanse of environmental democracy. Nonetheless, democratic transitions have cumplimated in the emergence of civil society groups and environmental awareness.63 Although deforestation rates are still high, the indigenous and environmentalist movements consolidated over the last decades, leading to environmental policies that remain the basis of environmental law in the region, and are the focus of later chapters of this book. These key issues help identify continuities in the politics of the environment today, as many are still present in recent times.

63

Id., at 47–50.

chapter 3

Threats to the Amazon Rainforest: Deforestation and Climate Change Deforestation in the Amazon rainforest is not new. Natural resource exploitation and other economic activities have for centuries impacted its ecosystem, leading to ongoing degradation. With 13.3 percent of the original forested area already destroyed, deforestation is a serious environmental concern.1 It is estimated that up to 9.7 percent of the region had been destroyed by 2000, and another 3.6 percent between 2000 and 2013. This 37 percent increase in 13 years is worrisome, and brings into question each country’s ability and willingness to protect the environment.2 A total forested area of 222,248 km2 disappeared between 2000 and 2013, an expanse equivalent to the entire territory of the United Kingdom.3 Cleared areas are visible to the naked eye from outer space. Deforestation also accelerates climate change. It is estimated that 22,000 tons of CO2 are emitted per km2 cut and burned. The entire Amazon, if completely cleared, would emit a total of 366 billion tons of CO2, equaling 10 years of global emissions at the current rate of emissions. The release of even a ­portion would accelerate global warming significantly, having devastating ­consequences. Human-induced climate change, if left unchecked, may soon cause the Amazon to emit more carbon into the atmosphere than it absorbs. This occurred in 2005, when a prolonged drought in the Amazon released close to one billion tons of carbon dioxide into the atmosphere and less than that amount was absorbed during that year. While Chapter 2 gives an overview of the development of deforestation in the region, Chapter 3 analyzes the current threats to the ecosystem in Amazonia: deforestation and climate change. Section 3.1 summarizes the data on deforestation rates in Amazonia. This section builds on the findings of Red Amazónica de Información Socioambiental Georreferenciada (raisg),4 1 2 3 4

1 INFOAMAZONIA, raisg: Deforestation in the Amazon from 1970 to 2013 (Oct. 5, 2015), http://infoamazonia.org/2015/10/raisg-deforestation-in-the-amazon-from-1970-to-2013/#!/ story=post-13786&loc=−4.390228926463384,-64.5611572265625,7. 2 raisg, Amazon Under Pressure 3 (2012). 3 INFOAMAZONIA, supra note 1. 4 Red Amazónica de Información Socioambiental Georreferenciada, https://raisg.socioambiental.org/ (last visited Nov. 22, 2016).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_004

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which published a comprehensive analysis of deforestation in Amazonia in 2015.5 raisg’s analysis divides deforestation rates in two categories: historic deforestation (1970–2000), and current deforestation (2000–2013). Current deforestation is further subdivided in three periods: 2000–2005, 2005–2010, and 2010–2013. This section gives an overview of the trends in deforestation rates in the Amazon region as a whole. In addition, it briefly discusses rates in each country specifically. Section  3.1 informs Section  3.2, which looks at regional economic dynamics and the main drivers of forest loss. Through an analysis of the causes of deforestation, it highlights their role in specific Amazon countries, when applicable. By analyzing the threats observed across countries, some common denominators can be found. The section thus highlights major causes of pressure at the regional and national levels. Finally, Section 3.3 explores the causes and consequences of climate change regionally. It discusses how Amazonia contributes to climate change, especially through deforestation, as well as how the region has been affected by it. In addition, it shows some of the current estimates of the impacts climate change might have in the biome, based on Intergovernmental Panel on Climate Change (ipcc) data.6 This chapter establishes the building blocks for the legal analysis presented in subsequent chapters. By showing the causes and consequences of deforestation and climate change, some of the challenges faced by Amazon countries can be more easily understood. At the core of the regional and national policies that affect Amazonia is the constant balance and interrelation between socioeconomic development and environmental protection, which informs regional and national policies. This chapter is therefore essential for the full comprehension of this book. 3.1 Deforestation The Amazon region has one of the world’s largest areas of deforestation, resulting in devastating forest loss over the years. Based on an initial forest cover of 6.1 million km2, deforestation reached 9.7 percent of the Amazonian territory by 2000. With almost 60 percent of Amazonia, Brazil had the highest amount in the region, showing a 12.8 percent loss of forest cover during this pre-2000 period. It is followed by Ecuador, with 9.6 percent deforestation, and Colombia and Peru with 7.4 and 7.0 percent respectively. The combined d­ eforestated

5 6

5 raisg, Deforestación en la Amazonía (1970–2013) (2015), available at https://raisg.socioambiental.org/system/files/deforestacion_en_la_Amazonia%281970-2013%29_0.pdf. 6 See ipcc, http://www.ipcc.ch.

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rates of the remaining countries slightly surpass that of Brazil, totaling 13.3 ­percent. In total, the region lost 591,414 km2 of forest cover due to historic deforestation, an area slightly smaller than the entire territory of France.7 Current deforestation has increased in amount and rate. Between 2000 and 2013, 13.3 percent of the total Amazon rainforest was lost, representing a 37 percent increase compared to the period of time up to the year 2000.8 With a combined area of 222,248 km2 cut, deforestation amounted to 3.6 percent of the original territory, with a 27.1 percent cumulative forest loss in the 13-year period.9 Brazil still leads with 4.8 percent, followed by Bolivia, Peru and Colombia, with 3.1, 2.4 and 2.0 respectively. Table  7, developed by raisg, summarizes the data on deforestation up to 2013. In total, 13.3 percent of the original forested area has already been destroyed.10 Through a comparison of the rates between countries, it can be observed that Brazil has the largest relative proportion of forest loss, amounting to 17.6 percent. It is followed by Ecuador, with 10.7 percent, and Colombia and Peru with over 9 percent. Brazil is also responsible for the highest forest loss in absolute terms, both in historical and current deforestation.11 Proportional to the size of their territories, Bolivia and Venezuela stand out as the countries that lost the greatest percentage of their forest cover in the 2000–2013 period. ­Although, as noted in above, Bolivia is responsible for only 3.1 percent of the total Amazon forest loss between 2000 and 2013, this represents 42.6 percent of that country’s Amazon forest area. Similarly, Venezuela accounted for 1 ­percent of total Amazon forest losses during this period, but this represents a worrying 34.2 percent of the Amazon rainforest within its territory.12 Deforestation is decreasing in the majority of countries. Examples include Brazil, Bolivia, and Ecuador. Brazil, however, has regressed in the last year, as deforestation has started to accelerate once again. The trend is not obvious in some countries, such as Colombia, Peru, and Guyana, where periods of regression alternate with periods of stabilization. The only country with an opposite trend is Venezuela, which shows signs of acceleration of its rate of forest loss. 7 8 9 10 11 12

7 8 9 10 11 12

raisg, supra note 5, at 6. See Table 7: Deforestation Rates in Amazonia, below. raisg, supra note 2, at 3. raisg, Amazonia 2015: Protected Areas and Indigenous Territories 2 (2015), available at https://raisg.socioambiental.org/system/files/mapa_ingles_2015.pdf. raisg, supra note 5, at 6. raisg, supra note 9, at 2. raisg, supra note 5, at 6.

792,999 150,254 397,812 6,099.788

13

raisg, supra note 5, at 6.

55,649 5,664 8,914 591,414

333,004 3,587.052 465,536 97,530 192,405 83,195

Bolivia Brazil Colombia Ecuador Guyana French Guyana Peru Suriname Venezuela Total Amazonia

13

14,035 458,500 34,673 9,343 3,097 1,539

Surface of original forest cover (km2)

6,680 194 890 118,530

4,614 101,138 3,446 487 785 295 7,225 263 1,521 77,809

3,733 57,399 6,167 424 821 257 2,306 144 1,742 23,909

2,049 15,395 1,684 216 125 248 7.1 3.8 2.3 9.7

4.2 12.8 7.5 9.5 1.6 1.8 2.0 0.4 1.0 3.6

3.1 4.8 2.4 1.2 0.9 1.0

9.1 4.2 3.3 13.3

7.3 17.6 9.9 10.7 2.5 2.8

Deforestation Deforestation Deforestation % of original % of origi- % of original Cumulative nal forest forest cumurate 2000–2005 rate 2005–2010 rate 2010–2013 forest until deforestation 2000–2013 lative total 2000 (km2) (km2) until 2000 (km2) (km2)

Deforestation rates in Amazonia13

Country

Table 7

Threats to the Amazon Rainforest

51

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French Guyana, Suriname, and Venezuela show a trend towards an increase in deforestation if they maintain the rate of loss seen in the 2010–2013 period.14 Bolivia used to have one of the region’s lowest deforestation rates, with an annual proportion of 0.2 percent between 1986 and 1990. During the 1990s, Bolivia’s deforestation rate more than doubled, and as a result, Bolivia is responsible for the loss of 4.2 percent of the original forest was cut until 2000. Historical deforestation (1970–2000) therefore amounted to 7.3 percent of the territory, around 14,400 km2, as recent deforestation (2000–2013) amounted to 10,400 km2.15 Currently, about 2,049 km2 are cut in Bolivia each year, and during the period from 2000–2013 Bolivia’s forest loss has increased to 42.6 percent. Due to its small population and vast area, Bolivia has one of the highest deforestation rates per capita in the world.16 In total, over 24,000 km2 was lost, an area larger than the state of Belize.17 Most of the pressure from economic exploitation is concentrated in the headwaters of watersheds, posing a major risk to the quality and quantity of forests and bodies of water. The Mamoré and Beni basins have been particularly affected, having lost 14 and 2.7 percent of their forests respectively.18 Historically, Brazil had the highest deforestation rate, and an area the size of the state of Maryland was clear-cut every year. The cumulative area lost by 2000 was 458,500 km2, almost 3.5 times the size of deforested areas in all other countries combined, including French Guyana. This rate started to decrease in 2004, and the percentage of forest areas lost went from 12.8 percent to 4.8 percent between 2000 and 2013. Still, due to Brazil’s large size, the number still amounts to very significant loss of forest cover. In the 2000–2013 period 174,000 km2 of forest were lost, totaling 5 percent of the original forest cover. Recently, however, deforestation rates have been on the rise again. In the period between August 2014 and July 2015, deforestation increased by 16 percent. Forest loss amounted to 5,831 km2, which represents an area half the size of Los Angeles.19 According to Global Forest Watch, Brazil has the second highest tree 14 15 16 17 18 19

14 15 16 17 18 19

Id. Id., at 12. Juan Forero, Guess Who’s Chopping Down The Amazon Now?, npr (Sep. 06, 2012), http:// www.npr.org/2012/09/06/160171565/guess-whos-chopping-down-the-amazon-now. raisg, supra note 2, at 6. Id., at 12. Rhett A. Butler, Amazon deforestation jumps in Brazil, but remains historically low (Mongabay, Nov. 27, 2015), https://news.mongabay.com/2015/11/amazon-deforestation-jumps-inbrazil/.

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cover loss in the world between 2001 and 2014. With a total of 38.34 Mha, it is only surpassed by Russia.20 Colombia had the third highest percentage of historical deforestation in the region, with 7.5 percent cumulative deforestation by 2000. Deforestation in the 2000–2013 reached 11,200 km2. While deforestation decreased in the 2000–2005 period, it increased significantly in the 2005–2010 period, when 6,167 km2 of forest cover was lost. The 2010–2013 period recorded a loss of 1,684 km2, equivalent to a 0.36 percent loss compared to the original forest area. Cumulative deforestation of the original forest amounts to approximately 10 percent as of 2013.21 A recent report by Colombia’s Institute of Hydrology, Meteorology and Environmental Studies (ideam) suggests that deforestation increased by 16 percent in 2014, with almost half of it occurring in the Amazon region.22 While the percentage of deforestation in the Colombian Amazon seems high, it actually decreased 8 percent compared with the amount of forest lost in 2013. Ecuador historically had one of the highest rates and the worst environmental record in Amazonia. Indeed, it followed Brazil with the second highest percentage of its forest lost by 2000, amounting to a loss of 9.5 km2, equivalent to 9.6 percent of original forests.23 A total area of 10,470 km2 of original forest cover was lost between 1970 and 2013. Deforestation decreased over time in the period after 2000, with 1,127 km2 forest losses between 2000 and 2013. The loss of 487 km2 during the 2001–2005 period was greater than the loss of 424 km2 in 2005–2010 and the subsequent loss of 216 km2 in the 2010–2013 period. Although lower than the average amount of deforestation in the region, historical deforestation in the Peruvian Amazon up to 2000 was also high, amounting to an estimated 55.649 km2 or 7.1 percent of Peru’s original forest cover. It is estimated that around 55,649 km2 was lost until then. Between 2000 and 2013, forest loss reached 16,211 km2.24 Peru experienced the fourth worst cumulative forest loss in the region between 2010 and 2013, behind Brazil, ­Ecuador, and Colombia. 20 21 22 23 24

20 21 22

23 24

Global Forest Watch, Country rankings, http://www.globalforestwatch.org/countries/ overview (last visited Nov. 16, 2016). raisg, supra note 2, at 22. Mike Gaworecki, Deforestation in Colombia up nearly 20 percent last year, but down in the Colombian Amazon (Mongabay, Nov. 26, 2015), https://news.mongabay.com/2015/11/ deforestation-in-colombia-up-nearly-20-percent-last-year-but-down-in-the-colombianamazon/. raisg, supra note 2, at 28. Id., at 32.

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Deforestation in the Venezuelan Amazon has been traditionally low. ­Indeed, only 2.3 percent of the original forest cover was lost by 2000, and 1 percent in the 2000–2013 period. However, contrary to the regional trend, forest loss has increased progressively between 2005 and 2013. The sustained increase is ­worrisome, with increased forest loss sustained in a varied manner during the periods analyzed.25 Deforestation was greatest in the north of the Orinoco River, where 94 percent of the population resides. Finally, deforestation in the Amazon region of Guyana, French Guyana, and Suriname has been relatively low. Jointly, the three Guianas have lost 3.2 ­percent of their forests. However, Suriname shows higher historic deforestation rates, while Guyana and French Guyana showed higher losses between 2000 and 2013.26 Indeed, historic deforestation in 2000 reached over 10,000 km2, while forest loss between 2000 and 2013 reached more than 3,000 km2. 3.2

Causes of Deforestation

In spite of the economic heterogeneity outlined in Chapter 1, Section  1.2., a common aspect is clear across Amazon countries: Amazonia’s main economic activities depend on its natural resources.27 There is no single universal cause of forest loss and deforestation. Indeed, it results from a combination of factors and disruptions to historical patterns of land use.28 The causes of deforestation vary greatly within and between countries.29 However, some trends can be observed. The direct drivers consist predominantly of large-scale industrial agriculture and extensive cattle ranching. The exploitation of natural resources (mining, hydropower and other non-timber forest resources) also plays a significant role, followed by government policies and demographic growth.30 Agriculture and cattle ranching are the main causes of deforestation in several areas of Amazonia, especially in Brazil, Bolivia, and Colombia. Three different types of agricultural activities can be observed in the region: (i) subsistence farming,31 (ii) illicit crops and small-scale agriculture, and 25 26 27 28 29 30 31

25 26 27 28 29 30 31

Id., at 36. Id., at 40. Id., at, at 59. Gavin O’Toole, Environmental Politics in Latin America and the Caribbean, Introduction, 136 (2014). unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 134 (2009). Id. Such as cassava, maize, rice, beans, bananas.

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(iii) ­agro-production.32 The first two types contribute to deforestation to a lesser degree. Agro-production,33 which can be found throughout the region, is more significant. While this type of agriculture was more common in Brazil and Bolivia, it is expanding towards the interior of Amazonia.34 Medium and large-scale individual family farms are often located in appropriated public lands, with low investment in technology and infrastructure.35 Large-scale agribusiness,36 albeit less pervasive, is on the rise in zones with better infrastructure, prioritizing mechanized monocropping, intensive use of chemicals, and a small workforce.37 While this type of agriculture has been concentrated in Brazil and Bolivia, it is expanding towards the interior of Amazonia, mostly due to the rise in commodity prices.38 Globalization has a large impact on regional agriculture. When prices for soybeans, beef, and timber rise, so does deforestation.39 Trade and price fluctuations on commodity markets influence agricultural practices. For example, rising prices of soy increased its importance in food crops in Brazil and B ­ olivia, encouraging the expansion of monocultures.40 Increased regional large-scale agriculture is also influenced by the rise of biofuels, mainly biodiesel and ethanol from maize and sugar cane. Livestock farming is responsible for 75 percent of deforestation in the region.41 Although medium and large-scale ranchers possess 89 percent of the ­Amazon’s private land, small farmers are responsible for 30 percent of forest destruction. Pastures occupy more than 90 percent of the areas initially used for annual, perennial, or agroforestry crops.42 Brazil has the largest growth of livestock production in Amazonia, with an estimated 73.7 million heads of cattle in Brazilian Amazonia, as opposed to 26 million in 1990.43 However, most of the area has a relatively low production. Indeed, 7 percent of the total farming 32 33 34 35 36 37 38 39 40 41 42 43

32 33 34 35 36 37 38 39 40 41 42 43

unep, acto and ciup, supra note 29, at 80. Such as African oil palms, cocoa, annatto, fibers, tea, coffee, and grains such as soya, rice, sunflower, sorghum and maize, among others. unep, acto and ciup, supra note 29, at 80. raisg, supra note 2, at 15. Such as African oil palms, cocoa, annatto, fibers, tea, coffee, and grains such as soya, rice, sunflower, sorghum and maize, among others. raisg, supra note 2, at 15. unep, acto and ciup, supra note 29, at 80. Id. at 82. Gavin O’Toole, supra note 28, at 134. unep, acto and ciup, supra note 29, at 82. raisg, supra note 2, at 14. unep, acto and ciup, supra note 29, at 81.

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area, estimated at 3.4 million hectares, is used for agriculture, and the remaining 93 percent has a productivity ranging from 0.4 to 5 animals per hectare.44 The agricultural sector in Brazil is large (especially coffee, soybeans, wheat, rice, corn, sugarcane, cocoa, citrus, and beef), and composes 5.2 percent of its economy when combined with allied sectors, such as logging and fishing. Brazil is the third largest agricultural exporter in the world.45 The forestry sector represents around 3–4 percent of the country’s gdp, and employs around 9 percent of the economically active population (around 8.5 million people).46 Soy production and cattle ranching are the main drivers of deforestation in Brazil. The expansion of soy production on savannah and forestland encourages farmers and cattle ranchers to expand deeper into the forests in search of new land.47 Agriculture and cattle ranching are also the primary causes of deforestation in Bolivia and Colombia. While the disorderly establishment of pastures and the arrival of rural migrants has a significant impact in deforestation, mechanized farming in the southern part of the Bolivian Amazonia has also accelerated the rate of deforestation significantly.48 In Colombia, deforestation was fueled by government-promoted colonization programs, which distributed land in Amazonia to rural populations displaced by violence in the Andean zone. These areas were later replaced by coca grown for illegal use.49 There are currently three major direct drivers of deforestation in the Bolivian Amazon: cattle ranching, industrial agriculture and small-scale agriculture. Industrial agriculture includes soy, sugarcane, rice, sunflower and sorghum, mostly directed to outside markets. Industrial agriculture is responsible for over 50 percent of deforestation in Bolivia until the 1990s, and around 30 percent currently. Small-scale agriculture contributes to 15–20 percent of deforestation, and usually remains stable. Cattle ranching takes place in lowlying areas, especially in Beni. Clearings are usually illegal, and pastures keep expanding through an inefficient use of space. Livestock production mainly 44 45 46 47 48 49

44 45

46

47 48 49

raisg, supra note 2, at 15. usda, United States Department of Agriculture, Trade (last updated May 30, 2012), available at http://www.ers.usda.gov/topics/international-markets-trade/countries-regions/ brazil/trade.aspx#.U08Ab164nFI. Naisy Silva Soares, Eliane Pinheiro de Sousa and Marcio Lopes da Silva, Importancia do Setor Florestal para a Economia Brasileira (sober, xlvi Congresso da Sociedade Brasileira de Economia, Administração e Sociologia Rural, 20–23 July 2008), available at http:// ageconsearch.umn.edu/bitstream/108583/2/214.pdf. unep, acto and ciup, supra note 29, at 82. raisg, supra note 2, at 15. Id., at 15.

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s­ upplies the domestic market and, to a lesser extent, international markets, mainly Peru. Since 2000 cattle ranching is the leading cause of deforestation in Bolivia, and was responsible for 60 percent of clearing between 2005 and 2010. Domestic demand for beef is another important factor to be considered.50 The cultivation of coca in Bolivia, Colombia and Peru, mainly used for narcotics production, has increased in recent years.51 Large-scale agriculture also threatens the environment due to the use of fertilizers and pesticides. Regional data for the use of pesticides is unreliable, but intensive farming often uses chemical additives to make crops more productive.52 In Colombia, natural reserves have been sprayed with pesticides in order to target drug crops in the region. Aerial eradication was widely used as part of Colombia’s strategy to eliminate drug crops. Herbicides were sprayed over a large part of the country’s arable lands, causing severe social impact and environmental damage. Expansion of the agricultural frontier into fragile ecosystems such as the edges of the Amazon forest makes the region one of the worst affected areas in terms of land degradation.53 Land degradation is the result of soil erosion, exhaustion or the loss of nutrients, and the accumulation of toxic substances, often resulting from changing land-use patterns and poor management.54 ­Agricultural production leads to two trends: deforestation, as land is brought under cultivation, and the abandonment of land as it becomes unproductive.55 Deforestation, along with poor irrigation, excessive grazing, poverty, and political instability can lead to unproductive lands. As a result, there is a high rate of land abandonment in Amazonia, especially in Bolivia and Peru. In extreme cases, land degradation can lead to desertification as a result of climatic variation and human activity. Latin American and Caribbean countries are affected by significant levels of desertification, including 10 percent of Brazil. Others, such as Bolivia, are severely threatened.56 Timber exploitation in Amazonia is selective, and therefore usually not considered a direct cause of deforestation. Most Amazonian countries have extensive regulation on sustainable forest management.57 However, poor 50 51 52 53 54 55 56 57

50 51 52 53 54 55 56 57

Id., at 14. unep, acto and ciup, supra note 29, at 83. Gavin O’Toole, supra note 28, at 134. Id., at 129. Id. Id., at 130. Id., at 131. Examples of sustainable forest management includes the Forest Stewardship Council (fsc). In Brazil, Imazon developed the Logging Monitoring System (Simex). Around 75 percent of Brazilian Amazonia is public land, with restricted forest concessions. In Peru,

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­enforcement still leads to loss of forest cover. Lack of supervision and control often leads to unsustainable forestry practices with consequences to endemic species in the region.58 While the demand for forest certification helps address illegal logging, it is only successful when timber is exported, and is not required in domestic markets, where most Amazonian timber production goes.59 In Guyana, French Guyana and Suriname, the growth in timber exports and monocropping for the production of biofuels are identified as the main drivers of deforestation and forest degradation in the region.60 Mining, hydrocarbon exploitation and infrastructure projects also represent a significant threat in Amazonia. In the 20th century, large mineral deposits were discovered in the Brazilian Amazonia, leading to a proliferation of mining activities that cover much of the region today.61 In addition to bringing large revenues to the national economy, mining is a major source of foreign investment in the region.62 The increase in the price of gold and other minerals in international markets has caused a spike in mining over the last 20 years.63 However, it is also one of Latin America’s most polluting activities, with severe impacts on water, forests, and soils. The growth of the mining industry in the region has often resulted in socio-environmental impacts, causing deforestation, loss of plant cover and soil erosion.64 One of Brazil’s main current projects involves its largest open gold mine in the Xingu River. While Brazil largely promotes mining exploration in Amazonia, Colombia announced a moratorium on mining activities in the region in 2012.65 Small-scale gold mining remains one of the most destructive practices 58 59 60 61 62 63 64 65

58 59 60 61 62 63 64 65

Permanent Production Forests (bpps) are exclusively for forest management, auctioned off to private bidders through Forest Concessions (fcs). In Bolivia, the Land and Forest Public Oversight Authority (abt) manages forest resources, land, and soils. However, since concessions for forest resources are not recognized, illegal exploitation is a serious issue. In Ecuador, illegal forest logging still consists of the majority of exportations, mostly from indigenous lands or zones reserved to isolated indigenous groups. Finally, forestry certificates still amount to 33 percent of sold timber. Through the Legal Timber Agreement, the Inter-Sector Agreement for Legal Timber oversees the legality of the chain of forest sources. Overall, monitoring remains a serious challenge, and a large amount of illegal logging goes unchecked in the region. See raisg, supra note 2, at 16. unep, acto and ciup, supra note 29, at 84. Id., at 86. raisg, supra note 2, at 50. Id., at 30. Gavin O’Toole, supra note 28, at 131. raisg, supra note 2, at 37. Gavin O’Toole, supra note 28, at 132. raisg, supra note 2, at 30.

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in the region. Concentrated in the Brazilian and Guyana Shields, gold is mined from alluvial deposits in the large rivers and stream by garimpeiros. Despite extensive legislation, illegal mining has increased over the recent decades, with larger and more uncontrollable environmental and social impacts. Clandestine mining is largely carried out along the borders of Brazil and Venezuela. In Venezuela, illegal mining remains the main source of deforestation.66 In addition, the Beni River in Bolivia, and the Madre de Dios river basin in Peru have seen an increase in illegal mining, with severe consequences for local ecosystems.67 While the use of mercury in the mining extraction process has decreased over the years, mercury contamination is still a serious environmental problem. It has particularly damaged the Amazon since the 1990s.68 It is estimated that there are between 100,000 and 200,000 garimpeiros in Colombia and Peru, and twice that amount in Brazil.69 Suriname also has gold and silver mining. Guyana is the country with the largest proportion of its Amazonian territory covered by mining concessions, followed by Brazil and Suriname. Bolivia has limited mining blocks, and there is still no large-scale mining in Ecuador. However, mining is still a threat in the medium term.70 In Guyana, mineral deposits are extensive and include mainly bauxite, gold, and diamonds. Border disputes between Guyana and Suriname, and Guyana and Venezuela have preserved pieces of the Amazon rainforest that would have otherwise been exploited for gold and oil. Constant threats of military or retaliatory action by the countries involved create a barrier to foreign investment in the disputed areas, preventing further development of the rich natural resources in the country. Gold mining is also a source of deforestation and environmental degradation in the Peruvian Amazon. Peru’s forests contain alluvial gold deposits that are pursued by large-scale operators and informal, small-scale miners. Both kinds of operators rely heavily on hydraulic mining techniques, blasting away at riverbanks, clearing floodplain forests, and using heavy machinery to expose potential gold-yielding gravel deposits. Mercury contamination and increased river sedimentation can be a problem downstream from operations, while mining roads can open remote forest areas to transient settlers and land speculators. Oil and gas extraction also play an essential role in regional development, with a key productive sector throughout the Amazon Basin. The largest oil and 66 67 68 69 70

66 67 68 69 70

Id., at 50. Id., at 32. Gavin O’Toole, supra note 28, at 132. unep, acto and ciup, supra note 29, at 87. raisg, supra note 2, at 33.

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gas fields are close to the Andes in Peru, Colombia, Ecuador, and Bolivia. Brazil and Venezuela also have extensive oil and gas blocks, although the percentage is limited in relation to Amazonia.71 Ecuador is the Amazon country with the largest oil production in the region, with 74.9 percent of total production in the Amazon region. Brazil has limited petroleum exploitation in Amazonia, mostly restricted to the Urucú river region. Guyana has some oil exploitation in the Takatu river basin. Gas reserves are more limited, as they have only been recently discovered. Most of the known reserves are located in Bolivia and Peru. As a strategic resource, hydrocarbon reserves are typically the property of the nation under the constitutions of the Amazon countries.72 Oil ­exploitation is largely encouraged by government policies as part of a regulatory framework. These policies, however, typically fail to include provisions relating to prevention and mitigation of soil and other environmental impacts or requirements to compensate for them.73 Without proper controls, hydrocarbon exploitation often leads to oil leakage and spills, as well as dumping of oil and toxic waste. Ecuador experienced one of the region’s worst environmental oil spills through years of exploitation by Texaco. Pools with waste and toxic water can still be found throughout the region.74 The oil industry remains the primary cause of deforestation in Ecuadorian Amazonia.75 More recently, Peruvian Amazonia experienced repeated oil spill from a leak on a pipeline that transported crude from the Peruvian Amazon to the Pacific Coast.76 Oil and gas reserves are found in some of the most ecologically sensitive areas, and oil exploration blocks are often granted within protected areas or buffer areas.77 Water resources in Amazonia are usually seen as an inexhaustible source for energy production. Water is the source of up to 75 percent of the current supply of national electrical energy from Amazonia in Peru, Bolivia, and Ecuador, with an endless potential of unexplored capacity in other areas. In addition to having the highest number of hydroelectric power plants in Amazonia, Brazil has a hydroelectric potential of 260,000 mw, accounting for over 50 percent of 71 72 73 74 75 76 77

71 72 73 74

75 76 77

Id., at 24. Id., at 24. Id., at 24. See Maria Antonia Tigre, Environmental Law of Ecuador in Comparative Environmental Law and Regulation, Vol. 1, Chapter 18A (Elizabeth Burleson, Lye Lin Heng, and Nicholas Robinson, eds.) (2013). raisg, supra note 2, at 28. Irene Banos Ruiz, Repeated oil spills threaten Peru’s Amazon (dw, Sep. 30, 2016), http:// www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538. unep, acto and ciup, supra note 29, at 89. raisg, supra note 2, at 24.

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the exploitable capacity of the entire Amazon region.78 Brazil and Peru signed an energy agreement in 2012 to produce and export electricity in Peru’s border zones in Amazonia, supplying Brazil’s growing demand. In addition to the six projects in the Peruvian Andes, Brazil continues pushing forward several projects in Amazonia, including the Belo Monte dam, the third largest in the world.79 As of 2013, Peru had 33 hydroelectric power plants in operation or under construction, and 11 planned. Other countries had less than 10 hydroelectric power plants, with the exception of Guyana, with no hydroelectric power plants recorded.80 Ecuador recently opened a new hydroelectric power plant that will supply around 30 percent of the national demand.81 While the hydroelectric potential of Andean Amazonia is currently underexploited, pressure is increasing from medium and large-scale hydroelectric generation projects. While hydroelectric energy provides low-cost electricity without resorting to fossil fuels or nuclear reactors, there are several environmental and social concerns associated with hydroelectric projects. First, flooding directly alters the water regime and destroys forests, reducing hydrological diversity and accelerating deforestation.82 Dams can potentially modify the water discharge cycle, with complex effects on local fishing, fauna and flora.83 Several rivers in Amazonia cross international boundaries, as well as over transition zones between the Andes and the Amazonian floodlands. The cross-border effects of the changes in the water cycle are rarely debated or analyzed, despite the ­potential for exponential environmental impacts with unknown consequences. Because decaying vegetation killed by flooding large reservoirs releases methane, hydroelectric power plants are also significant sources of ghgs. The construction of hydroelectric dams on the Madeira River and its tributaries poses a major threat of deforestation through the imminent flooding of large tracts of forest.84 Also, traditional communities are often displaced, losing the link to the lands they have called home for centuries. Finally, the migration of settlers to scarcely populated forests areas, and the consequent increase in population density show a significant influence on 78 79 80 81 82 83 84

78 79 80 81

82 83 84

raisg, supra note 2, at 38. Id., at 38. Id., at 40. Valeria Heredia, Coca Codo Sinclair, la central más grande de Ecuador, se inauguró (El Comercio, Nov. 18, 2016), http://www.elcomercio.com/actualidad/coca-codo-sinclairhidroelectrica-china.html. raisg, supra note 9, at 2. unep, acto and ciup, supra note 29, at 90. raisg, supra note 2, at 14.

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­deforestation.85 The expansion and improvement of road infrastructure, migration to the lowlands and population growth in settlement areas shall be accounted for.86 While Amazonia is one of the most sparsely populated areas on Earth,87 it is inhabited by 385 different indigenous and tribal groups, totaling 1.4 million people.88 In addition, the urban population amounts to 33 million people, around 11 percent of total population of the countries.89 Several cities are growing exponentially, putting additional pressure in the forests in the surrounding areas.90 Population growth and urbanization increase the demand for food and income, intensifying the drive to convert forests to agricultural use.91 Migration, and the exploitation of natural resources are often encouraged by roads, which, in turn, act as a catalyzing factor in deforestation.92 The correlation between paved roads and deforestation is high. For example, it is estimated that deforestation is found around 30 km from paved roads in Brazilian Amazonia. Road infrastructure is often provided by the government in order to facilitate transportation of imported goods from sea ports to different regions; as well as exportation of raw materials, minerals, oil and manufactured goods from the different regions to the sea ports, and also to strengthen the regional economy through the Initiative for the Integration of the Regional Infrastructure of South America (iirsa).93 The construction of roads is often associated with forest resource extraction such as illegal logging, the substitution of forest 85 86 87 88 89 90 91 92 93

85 86 87 88 89

90

91 92 93

wwf, For a Living Amazon!, available at http://wwf.panda.org/what_we_do/where_we_ work/amazon/ (last visited Jul. 16, 2016). raisg, supra note 2, at 14. Michael Goudling et al., The Smithsonian Atlas of the Amazon 53 (2010). raisg, supra note 2, at 4. acto and GiZ, Cooperation Opportunities in the Amazon Region, http://otca.info/portal/ admin/_upload/publicacoes/770-Pasta.OTCA-completo.ingles.pdf (last visited Nov. 4, 2016). La Paz (Bolivia) is the region’s most populated city in the Amazon drainage, with 1.5 million people. Manaus (Brazil) is the largest city in the lowlands, with a population of 1.4 million. Santa Cruz de la Sierra (Bolivia) and Pucallpa (Peru) are growing exponentially. The most heavy colonized areas are the Chapare region (Bolivia), Puerto Maldonado (Peru), Urubamba (Peru), Oriente (Ecuador) and the upper Putumayo and Caquetá Valleys (Colombia). See Michael Goudling et al., supra note 87, at 53–55. The Colombian, Ecuadorian and Venezuelan Amazon plain shows a lack of population, despite some population centers in the Andean foothills in the first two countries. See unep, acto and ciup, supra note 29, at 66. Gavin O’Toole, supra note 28, at 137. raisg, supra note 2, at 16. Id., at 16.

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landscapes with agrarian landscapes, and large-scale infrastructure and urbanization projects.94 The road infrastructure was greatly expanded in Amazonia over the last ten years, especially in Brazil. Indeed, 71.4 percent of the total length of roads in Amazonia are located in Brazil, followed by Peru, Bolivia, Ecuador, and Guyana, with 6.2, 5.6, 4.5 and 4.4, respectively.95 The vast majority is unpaved.96 Unlike other Amazon countries, Brazil has developed an industrial/manufacturing cluster within Amazonia. Specifically, it is located in Manaus, Brazil’s main city in Amazonia. The Zona Franca de Manaus was established in the 1960s as a free zone to stimulate growth. Predominant industries are electrical appliances, computing, professional equipment and electronic components.97 Certain economic, political, and social factors increase deforestation. Examples include the national development strategies and government incentives to expand extractive activities and land-use.98 Institutional factors include formal measures that favor deforestation, land use policies and economic development programs associated with colonization, transport, and subsidies for land-based activities. For example, Bolivia’s low rates of deforestation until the 1990s were not the result of successful environmental policies, but rather due to extreme poverty, the government’s inattention to the lowland parts of the country, and the weak export market of the landlocked country. In addition, most of the mechanized agriculture took place in Santa Cruz, which is located at the border of the Bolivian Amazon; while coca plantations were established in Chapare and Nor Yungas.99 Deforestation accelerated in the 1990s due to government incentives for logging, and for the cultivation of soybeans and coca. For example, the government distributed lands to small-scale farmers. In addition, immigrants, especially those of Japanese origin, established themselves within the Bolivian Amazon. In the 1960s and 1980s, state policies centered on the production of food for national consumption, and private investment in the agro-industry opened the economy to international markets, particularly in the export of soy. Several incentives were distributed by the state in the 1990s to stimulate the industry. These included credits, infrastructure, easier access to land and technical support, and led to the expansion of soy production. Soy has been the main 94 95 96 97 98 99

94 95 96 97 98 99

Id., at 22. Id., at 18. Id., at 19. unep, acto and ciup, supra note 29, at 59. Gavin O’Toole, supra note 28, at 136. raisg, supra note 2, at 13.

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driver of deforestation in Bolivia, and its production expands through an area of 600,000 to 1 million hectares. Environmental policies that arose in the 1990s did little to curb deforestation, and the need to show the economic and social function of a property rather incentivized further deforestation.100 Deforestation often reveals governance problems and policy failures. The lack of enforcement of regulations and corruption directly influence forest loss in Amazonia. Outdated land tenure systems and failed policies (such as the corruption or mismanagement within the forestry sector) are also important drivers of forest loss. A rise in deforestation in 2010–11 is often associated by experts with the passage of Brazil’s new forestry law, which imposed a deadline on an amnesty for past deforestation, encouraging landowners to quickly clear land before the new law went into effect.101 Table 8 summarizes the main productive activities by country, as well as the main causes of deforestation and forest degradation in Amazonia. Table 8

Main productive activities in Amazon countries102

Country

Productive activities

Bolivia

• Agriculture (maize, manioc, • Subsistence agriculture due to legumes) migration of landless individuals (Killeen, Calderón, Soria, Quezada, • Hydrocarbons (petroleum, Steininger and Harper 2007) natural gas) • Mining (gold, lithium, bauxite) • Soya cultivation, ranching activity • Forestry (timber-yielding (Steininger, Tucker, Townshend, Killeen, Desch, Bell and Ersts 2001) and non timber-yielding [chestnut]) • Pasture lands for ranching activity (Pacheco 1998) • Timber extraction • Agriculture (millet, livestock) • Pasture lands for ranching activity • Forestry (Arima, Barreto and Brito 2005) • Industry (agroindustry, petro- • Mechanized agriculture (Nepstad, chemical, manufactures) Moutinho and Soares-Filho 2006)

Brazil

100 101 102 103

100 101 102 103

Id., at 13. Gavin O’Toole, supra note 28, at 139. unep, acto and ciup, supra note 29, at 58. Id., at 138.

Main causes of deforestation and forest degradation103

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Threats to the Amazon Rainforest Country

Productive activities

Main causes of deforestation and forest degradation

• Mining (gold, copper, bauxite, iron)

• Infrastructure: highways and hydroelectric dams (Fearnside and Laurance 2002) • Agrarian reform settlements (Brandão and Souza 2006) • Timber activity (Lentini, Sabogal, Pokorny, Silva, Zweede, Veríssimo and Boscolo 2005) • Appropriation of public lands • Spontaneous settlement (­Armenteras, Rudas, Rodríguez, Sua and Romero 2006) • Pasture lands for ranching activity (Armenteras, Rudas, Rodríguez, Sua and Romero 2006) • Cultivation of illegal plantations (Armenteras, Rudas, Rodríguez, Sua and Romero 2006) • Policies of settlement and shifting borders, subsistence agriculture (Wunder 2003) • Infrastructure associated with petroleum production • Agriculture (epa 2007) • Bauxite mining (epa 2007) • Artisan mining (garimpo) (epa 2007) • Highways (Maki, Kalliola and ­Vuorinen 2001) • Agrarian reform (Álvarez 2003) • Timber activity

Colombia • Agriculture (coffee), livestock • Forestry • Hydrocarbons (petroleum) • Fishing (for consumption and ornamental) • Industry (agroindustry, aquiculture) • Services (tourism, banking, restaurants) Ecuador • Agriculture (bananas, flowers, cocoa, coffee) • Forestry • Hydrocarbons (petroleum) Guyana

• Agriculture (sugar, rice) • Forestry • Mining (bauxite, gold) Peru • Agriculture (oil palm, coffee, yellow maize) • Mining (gold) • Forestal • Hydrocarbons (petroleum, natural gas) Suriname • Agriculture (rice, bananas) • Forestry • Hydrocarbons (petroleum) Venezuela • Mining (bauxite) • Tourism

• Artisan mining, (garimpo) (Peterson and Heemskerk 2001) • Agriculture and ranching activity • Gold mining

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Climate Change and Amazonia

Climate change is the defining human development challenge of the 21st century.104 It has been defined as a variation in climate attributable directly or indirectly to human activity in addition to the natural processes of climate variability observed over comparable periods of time.105 When released into the atmosphere through anthropogenic practices such as the burning of fossil fuels and deforestation, greenhouse gases (ghg) absorb infrared radiation from the sun, altering the global atmosphere through trapped heat. After decades of debate regarding the existence and causes of climate change, the Intergovernmental Panel on Climate Change (ipcc) concluded that there is “unequivocal”106 evidence that global temperatures are on the rise and that the phenomenon is “very likely due to the observed increase in anthropogenic (human) greenhouse gas concentrations”.107 Indeed, anthropogenic emissions of ghgs are the highest in history, and climate change has had widespread impacts on human and natural systems.108 Latin American forests have a strong influence on local and regional climate, play a significant role in the global carbon budget, contain an important share of all plant and animal species of the region, and are economically important for national and international markets.109 Amazonia has the capacity to absorb up to 2 billion tones of CO2 per year, as such, tropical forests play a significant role in global carbon storage and can help regulate global climate patterns.110 This capacity corresponds to about 20 percent of the atmospheric carbon emitted by the burning of fossil fuels. However, Amazonia can only serve as a carbon sink as long as it absorbs more CO2 than it releases. High deforestation rates threaten to reduce the forest’s ability to stabilize global climate. 104 105 106 107 108 109 110

104 United Nations Development Programme (undp), Human Development Report, 2007–8: Fighting Climate Change – Human Solidarity in a Divided World 24, available at http:// hdr.undp.org/sites/default/files/reports/268/hdr_20072008_en_complete.pdf. 105 United Nations Framework Convention on Climate Change (unfccc), May 9, 1992, S. Treaty Doc No. 102–38, 1771 u.n.t.s. 107, art. 1(2). 106 ipcc, Summary for Policymakers in Climate Change 2013: The physical science basis 4 (2013). 107 ipcc, Climate Change 2007: Synthesis Report 39 (2007). 108 ipcc, Summary for Policymakers in Climate Change 2014: Synthesis Report 2 (2015). 109 ipcc, Latin America: Executive Summary in The Regional Impacts of Climate Change: An Assessment of Vulnerability (1997), available at http://www.ipcc.ch/ipccreports/sres/ regional/index.php?idp=123. 110 Gavin O’Toole, supra note 28, at 136.

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The consequences of climate change are devastating. Mean annual temperatures are predicted to increase by 1 to 4 degrees Celsius by the end of the ­century. With temperature rise, several other consequences follow: glacial melt, sea-level rise, droughts, desertification, more frequent natural disasters, and increased air pollution in urban areas. Changes in the physical ­environment or biota resulting from climate change have significant deleterious effects on the composition, resilience and productivity of natural and managed ecosystems and the operation of socio-economic systems and on human health and welfare.111 Amazonia’s ability to store ghg is at risk from land use changes and the effects of climate change, and as a result it may ultimately contribute significantly to ghg that cause global warming. Indeed, the reduction in terrestrial carbon sink is listed as a high global risk in the long term.112 The carbon stored in terrestrial ecosystems is vulnerable to loss back into the atmosphere, resulting from increased fire frequency due to climate change and the sensitivity of ecosystem response to rising temperatures. The risk, estimated with medium confidence, will lead to a warming and drying trend and extreme temperatures. Climate change could potentially lead to abrupt and irreversible regional-scale change in the composition, structure, and function of terrestrial and freshwater ecosystems in the Amazon forest, as well as additional regional effects.113 The effects of climate change in Amazonia are not uniform. The general trend of “drier gets drier” and “wetter gets wetter” does not apply. Currently, the strongest growth in rainforest occurs during the dry season, when strong insolation is combined with water drawn from underground aquifers that store the previous wet season’s rainfall. This scenario can be dramatically altered by climate change. As global temperatures rise, the Amazon could be caught in a potentially calamitous feedback loop: warmer oceanic waters dry out the basin by inhibiting rainfall; a longer dry season leads to increased forest fires and more carbon emissions, thus provoking more climate change.114 Increased drought, land-use change, and forest fire would cause much of the Amazon forest to become a less adapted ecosystem, increasing the risk to biodiversity while decreasing net carbon uptake from the atmosphere. Global 111 112 113 114

111 unfccc, art. 1(1). 112 ipcc, Climate Change 2014: Synthesis Report 70 (2015). 113 ipcc, Terrestrial and Inland Water Systems in Climate Change 2014: Synthesis Report 276 (2015). 114 wwf, Climate Change in the Amazon, available at http://wwf.panda.org/what_we_do/ where_we_work/amazon/amazon_threats/climate_change_amazon/ (last visited Mar. 16, 2016).

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warming slows down plant growth and causes trees to die more rapidly. The transition could be abrupt when the dry season becomes too long for the vegetation to grow effectively, thus leading to an ecological tipping point.115 The Amazon rainforest could potentially be replaced by seasonal forest, fire prone bush or even savannah (caatinga).116 A 70 percent forest cover reduction is predicted by the end of the 21st century as a result. Warmer temperatures and a dryer forest increase fires and droughts. Although 58 percent of the Amazon rainforest is currently too humid to support fire activity, land use change and climate change might increase its vulnerability, with the potential to reduce this to 37 percent by 2050.117 If climate change brings drier conditions closer to the surrounding seasonal forests, fire can act as a trigger to abruptly and irreversibly change the ecosystem.118 These consequences can further undermine the forest’s resiliency to climate change. In addition, changes in extreme flows in the Amazon River are predicted to occur. With reduced rainfall, the region would lose important runoff within and beyond the basin.119 A warmer climate leads to the melting of the glaciers of South America, in particular the tropical Andes, a significant source of water in the region. These scenarios and consequences are not as distant as one may think. While the average monthly temperature records show a global warming trend of 0.5 to 0.8°C, the Amazonian region shows a warming trend of +0.63°C over a period of 100 years.120 Human-induced climate change, if left unchecked, may soon cause the Amazon to emit more carbon into the atmosphere than it absorbs. This occurred in 2005, when a prolonged drought in the Amazon released close to one billion tons of carbon dioxide into the atmosphere, more than it simultaneously removed through absorption. While estimates differ, a forest dieback could occur by the end of this century.121 A critical tipping point has been identified at 40 percent deforestation, when the water and energy feedbacks between the forest and climate may lead 115 116 117 118 119 120 121

115 Id. 116 ipcc, Long-term Climate Change: Projections, Commitments and Irreversibility in Climate Change 2013: The physical science basis 1097 (2013). unep, acto and ciup, supra note 29, at 101. 117 ipcc, Carbon and Other Biogeochemical Cycles in Climate Change 2013: The physical science basis 542 (2013). 118 ipcc, supra note 116, at 1117. 119 ipcc, supra note 109. 120 unep, acto and ciup, supra note 29, at 100. 121 Id.

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to a decrease in precipitation.122 The Amazon rainforest could change abruptly to a less carbon-dense, drought and fire-adapted ecosystem.123 While the prediction is estimated with low confidence, the consequences of the outcome are severe.124 While the present and near term (2014–2030) risk of the Amazon tipping point is very low to medium, with a large potential for adaptation, the same cannot be said for the long-term scenario (2080–2100). Indeed, if there is a 2°C increase of temperature, the risk is medium-high, with a small probability of reduction due to adaptation. If there is a 4°C increase of temperature, the risk is very high.125 In this scenario, the Amazon basin will likely be affected by severe drought by the end of the 21st century.126 The risk of Amazonian forest dieback is, however, small. Since the strength of critical thresholds in tropical rainforests like Amazonia, purely driven by ­climate change, remains high, the possibility of a threshold being crossed in precipitation volume cannot be ruled out. Nevertheless, there is still some question as to whether a transition of the Amazonian or other tropical rainforests into a lower biomass state could result from the combined effects of limits to carbon fertilization, climate warming, potential precipitation decline in interaction with the effects of human land use.127 The threat of a downward spiral calls for immediate and meaningful action to halt deforestation and climate change. Protecting the Amazon basin, which contains the largest tropical rainforest on the planet, is critical to our planet’s climate stability. In addition, as seen in Section 3.2., Amazon countries are extremely dependent on the natural ecosystem. Indeed, the exploitation of natural resources is at the core of the economic activities of the region. For this reason, Latin America is a particularly vulnerable area. Potential impacts of climate and land-use changes could be large and costly for this region.128 These will adversely affect key sectors in the region’s economy, especially since it is largely dependent on commodities. Both the impacts of global warming and the measures required to mitigate its effects may undermine the region’s 122 123 124 125 126 127 128

122 World Bank, Turn Down the Heat: Confronting the New Climate Normal 5 (2014), ­available at http://www.worldbank.org/content/dam/Worldbank/document/Climate/English-Regional-Summary-Turn-Down-the-Heat-Confronting-the-New-Climate-Normal.pdf. 123 ipcc, supra note 112, at 70. 124 Id., at 36. 125 Id., at 70. 126 Id., at 3. 127 ipcc, supra note 116, at 1117. 128 ipcc, supra note 109.

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political, economic an social balance, potentially leading to a setback of years and costing billions in loss and damages.129 3.4

Emissions in Amazonia

The biggest risk is of the rainforest turning into a net source of carbon emissions.130 Carbon release due to deforestation in Latin America could potentially alter the global carbon balance. The forests in Amazonia represents close to 38 percent of the 228,700 MtC found in the tropical areas of America, ­Africa, and Asia.131 Increasing forest fires will eventually induce a surge in deforestation, releasing more carbon into the atmosphere. The consequences of ­increased forest loss could be devastating. The Amazon contains 90 to 140 billion metric tons of stored carbon – the release of even a portion of which would accelerate global warming significantly. It is estimated that 22,000 tons of CO2 are emitted per km2 cut and burned. The entire Amazon, if completely cleared, would emit a total of 366 billion tons of CO2, equaling 10 years of global emissions that might potentially alter the region’s ecosystem significantly.132 Latin America as a whole represents roughly 9.5 percent of global emissions, with the majority deriving from deforestation. Overall, the region is not a significant source of global greenhouse emissions. Considering the Amazon countries specifically, the overall contribution is even smaller. ­ ­Brazil is the dominant source of the region’s emissions. Because of Brazil and ­Mexico alone, Latin America exercises a relevant position in terms of climate change.133 Within Amazonia, Venezuela is another significant emitter, ranking 23rd in global emissions. Ecuador, Peru and Colombia also rank among the Top 50 emitters, although they are at the edge of the list (ranking between 40–50). Bolivia ranked 52st. Suriname and Guyana rank below the Top 100 emitters. Table 9 gives an overview of the emissions from Amazon countries as of 2012. 129 130 131 132 133

129 Guy Edwards & J. Timmons Roberts, A Fragmented Continent: Latin America and the Global Politics of Climate Change x, xvi (2015). 130 Id., at 7. 131 Wayne Walker et al., Forest carbon in Amazonía: the unrecognized contribution of indigenous territories and protected natural areas in 5(5–6) Carbon Management 479–485 (2015). 132 wwf, Climate change impacts in the Amazon: Review of scientific literature, available at http://wwf.fi/mediabank/1064.pdf (last visited Oct. 2, 2016). 133 Guy Edwards & J. Timmons Roberts, supra note 129, at 12.

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Overall CO2 emissions from Amazon countries134

Country

Total CO2 emissions excluding land-use change and forestry per capita – 2012

Bolivia 16.74 MtCO2 Brazil 477.77 MtCO2 Colombia 73.96 MtCO2 Ecuador 36.99 MtCO2 Guyana 1.66 MtCO2 Peru 49.60 MtCO2 Suriname 2.27 MtCO2 Venezuela 207.05 MtCO2

Total CO2 emissions including land-use change and forestry per capita – 2012

Importance as emitter

136.47 MtCO2 1,823.15 MtCO2 199.68 MtCO2 138.16 MtCO2 7.64 MtCO2 159.50 MtCO2 8.63 MtCO2 396.74 MtCO2

Below Top 50 (51st) Top 10 (7th) Top 50 (40th) Top 50 (50th) Below Top 100 (141st) Top 50 (47th) Below Top 100 (139th) Top 50 (23rd)

While the region is not a significant source of global ghg emissions, per capita emissions are largely higher than the global average. Indeed, emissions are on the rise as a result of the growth of the middle-class. The Latin American and Caribbean middle class is projected to grow to 42 percent of the population by 2030, thus decreasing inequality, but also raising emissions considerably.135 The accumulated emissions of middle-income countries in Latin America and worldwide represent significant contributions to global climate change. However, it is not distributed evenly. Latin America and the Caribbean account for 9 percent of the world’s total population, roughly 9 percent of global gdp, and 9.5 percent of global emissions.136 In terms of per capita emissions, the region can be divided into three groups: high, middle and low. The high group produces over ten tons of CO2 per capita, the middle group produces around five to seven tons of CO2 per capita, while the low group produces under three tons.137 Interestingly, the allocation 134 135 136 137

134 World Resources Institute (wri), cait Climate Data Explorer, Historical Emissions, available at http://cait.wri.org/historical/Country%20GHG%20Emissions?indicator[]=Total%20 GHG%20Emissions%20Excluding%20Land-Use%20Change%20and%20Forestry%20 Per%20Capita&indicator[]=Total%20GHG%20Emissions%20Including%20LandUse%20Change%20and%20Forestry%20Per%20Capita&year[]=2012&sortIdx=NaN&ch artType=geo&view=viz (last visited Mar. 28, 2016). 135 Guy Edwards & J. Timmons Roberts, supra note 129, at 8. 136 Id., at 8. 137 Id., at 9.

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Table 10

Per capita CO2 emissions from Amazon countries

Country

Total ghg emissions Importance excluding land-use as Emitter change and forestry per capita – 2012138

Bolivia

Total ghg Importance e­ missions including as emitter land-use change and forestry per capita – 2012139

4.39 tCO2e Per Capita Middle Group 13.00 tCO2e Per Capita Brazil 5.10 tCO2e Per Capita Middle Group 9.18 tCO2e Per Capita Colombia 3.23 tCO2e Per Capita Low Group 4.19 tCO2e Per Capita Ecuador 3.55 tCO2e Per Capita Low Group 8.92 tCO2e Per Capita Guyana 4.52 tCO2e Per Capita Middle Group 9.60 tCO2e Per Capita Peru 2.94 tCO2e Per Capita Low Group 5.32 tCO2e Per Capita Suriname 6.73 tCO2e Per Capita Middle Group 16.15 tCO2e Per Capita Venezuela 9.48 tCO2e Per Capita High Group 13.24 tCO2e Per Capita

High Group Middle Group Middle Group Middle Group Middle Group Middle Group High Group High Group

of Amazon countries within those groups changes significantly whether landuse change and forestry emissions are included. If these were not included, no Amazon countries would be included in the high group, with Venezuela almost achieving it, with 9.48 tons of CO2. Brazil, Bolivia, Guyana, and Suriname would be included within the middle group. Colombia, Ecuador, and Peru would be included in the low group. If emissions from land-use change and forestry emissions are included, however, the scenario changes substantially. Bolivia, Suriname and Venezuela would be included in the high group, with Guyana and Brazil at the limit, with more than 9 tons of CO2. Colombia, Ecuador and Peru would be included within the middle group. No country would be included in the low group. 138 139

138 wri, supra note 134. 139 Id.

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As can be observed, the majority of emissions in the region are generated from land use, land-use change, and forestry (lulucf) and agriculture, in contrast with most emissions, which derive from energy.140 The region’s emissions profile is the opposite of the rest of the world’s profile in 2005, with two-thirds of emissions from agriculture and land use, and over one-quarter from energy. As one of the world’s major supplier of food, agriculture plays a significant role in the region, with the ongoing threat to forests, and the Amazon rainforest specifically. The expansion of maize and soybean can be directly linked to a decrease in forest area in Latin America from 1990 to 2006.141 If agricultural expansion is not pursued with care, the increased emissions may slowly overshadow reductions in land-use emissions, undermining efforts to curb deforestation regionally. Latin America’s power sector is of secondary importance, as it generates 40 percent fewer CO2 emissions per unit of energy than the world as a whole. The region’s primary energy mix includes oil (42 percent), hydropower (21 percent), and biomass (13.5 percent). The global average mix is 32 percent, 6.7 percent and 8.7 percent, respectively. Latin America’s energy mix includes far less coal and nuclear power than the global mix (4.7 percent vs. 27 percent, and 0.8 percent vs. 5.6 percent, respectively). Nonetheless, energy emissions have been rising, with an insignificant share of renewables such as geothermal, solar, and wind power.142 In addition, with the discovery of Brazil’s offshore presalt layer (pré sal), the country has the potential of becoming the world’s largest oil producer. Combined with Venezuela’s oil reserves, which are the world’s largest known, exploiting these reserved will result in additional emissions, if not properly addressed. Although the majority of fossil fuels are meant for exportation, the region needs to keep emissions down by transitioning to renewables, while continuing to develop economically. 3.5 Conclusion Despite its unique biodiversity, the Amazon region still lacks proper protection. Deforestation is the region’s biggest challenge, followed closely by ­climate change. Following the pattern of exploitation initiated before European 140 141 142

140 Walter Vergara et al., The Climate and Development Challenge for Latin America and the Caribbean: Options for Climate Resilient Low Carbon Development 42 (2013), available at https://www.imf.org/external/np/seminars/eng/2013/caribbean/pdf/challenge.pdf. 141 Guy Edwards & J. Timmons Roberts, supra note 129, at 12. 142 Id., at 10.

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c­ olonization, and consolidated after their occupation, deforestation has for long pressured the Amazonian ecosystem. At the current rate of destruction, it is predicted that 30 percent of forests will be lost by 2030.143 Experts estimate that 130 species of plants, animals, and insects are lost daily. Many species are threatened, especially those that are rare, present in low concentrations, or endemic to specific subregions or areas with specific ecological conditions. Accordingly, clearing a single part of the forest has the potential to cause the extinction of a large number of species. Knowledge about medicinal species is also at stake, since most of it has already been destroyed along with indigenous groups. This loss is irretrievable. Scientists have found that virtually all of the Earth’s ecosystems have been dramatically transformed through human action, and the Amazon basin is one of the primary examples.144 As shown throughout this chapter, deforestation in Amazonia is one of the world’s largest, and amounts to an overwhelming sum of forest loss over the years. In total, 9.7 percent of the territory was lost by 2000. Brazil has the highest rates, followed by Ecuador, Colombia, and Peru. Current deforestation, which pertains to the 2000–2013 period, amounted to 13.3 percent, showing the pattern still remains the same. Brazil still leads, showing the highest rates, followed by Bolivia, Peru, and Colombia. Deforestation has multiple causes, as the main economic activities across Amazon countries rely on the exploitation of natural resources. Direct drivers consist predominantly of large-scale industrial agriculture and extensive cattle ranching. Indeed, livestock farming is responsible for 75 percent of deforestation, the majority of which is based in Brazil. Mining, hydropower and other non-timber forest resources also play a significant role, followed by government policies and demographic growth. Globalization has a significant impact, as prices of commodities directly alter agricultural practices. Due to the high rates of deforestation, Amazon forests have a strong influence on the global carbon budget. Indeed, despite the relatively small regional contribution of ghg emissions to climate change, the majority derives from deforestation. On the other hand, forests have the capacity to help regulate global climate patterns by absorbing up to 2 billion tones of CO2 per year, approximately 20 percent of the carbon emitted by the burning of fossil fuels throughout the world. Land use changes are thus at the core of climate change 143 144

143 wwf, supra note 85. 144 World Resources Institute, Millenium Ecosystem Assessment, Ecosystems and Human Well-Being: Biodiversity, Synthesis, 42 (2005), available at http://www.unep.org/maweb/ documents/document.354.aspx.pdf.

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in Amazonia. As such, the main avenue to reduce emissions in the region is to reduce deforestation. Within this context, forest policies are key. With the majority of the regional economy based on natural resources extraction and agriculture, Amazon countries face a constant challenge to strike a balance between economic development and environmental protection. This challenge is at the core of the environmental policies that define the region. Since individual countries face similar problems, some of the solutions may rely on regional cooperation. The following chapters thus analyze the development of cooperation in Amazonia, with a specific focus on forest protection.

chapter 4

Early forms of Regional Cooperation: From Bilateral Agreements to Regional Integration The principles and purposes of the Treaty […] reaffirm the sovereignty of each State over their respective territories and the need to be present in such vast areas which, inter alia, ensure such sovereignty in the face of a threat – whether or not real – of the internationalization of the Amazon, caused by the growing worldwide interest in environmental conservation issues following the 1972 Stockholm Conference.1

∵ Like deforestation and forest degradation, cooperation between Amazon countries is not new.2 It started in the 15th century, while the region was still under colonial power.3 This chapter provides an overview of the early forms of cooperation between the eight countries that share the Amazon rainforest. It begins with the first treaties adopted by the newly independent countries in the 19th century – with the exception of Guyana and Suriname, which achieved independence later – until 1978, when the Amazon Cooperation Treaty (act) 1 Carmelita Ossa Henao, Aspectos de la implementación del Tratado de Cooperación Amazónica en las relaciones bilaterales entre Brasil y Colombia: El plan modelo para el desarrollo integrado de las comunidades vecinas del Eje Tabatinga-Apaporis, 79/80 Boletim da Sociedade Brasileira de Direito Internacional 81, 82 (1992). In the original language: “Los princípios y propósitos que orientan el Tratado […], reafirmar la soberanía de cada uno de los Estados sobre sus respectivos territories, y de la necesidad de realizar actos de presencia en tan vastas extensions, que, entre otras cosas, asegurasen dicha soberanía, frente a una amenaza, real o no, de internacionalización de la Amazonia, provocada por el creciente interés, a nivel mundial, en los temas de conservación del medio ambiente a raíz de la Conferencia de Estocolmo de 1971.” 2 This chapter is not a comprehensive analysis of all of the cooperation mechanisms negotiated by the Amazon countries at the time, but rather illustrates how cooperation developed through some examples. 3 For example, the papal bull Inter Caetera of 1493, redefined in 1494, also known as Tordesilhas Treaty, which divided the “New World” between Portugal and Spain. See Beatriz Garcia, The Amazon from an international law perspective, 51 (2011).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_005

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was signed. In its inception, cooperation was usually limited to treaties between two or more Amazon States, mostly establishing common boundaries and ­defining rules for commerce and navigation. Nonetheless, some exceptions can be found. For example, cooperation within the framework of the inter-American conferences promoted technical, scientific and cultural cooperation, particularly in border areas. These paved the way for the 1978 act.4 As the historical chapters analyze the expansion of regional cooperation in Amazonia, specific developments in International Environmental Law are highlighted. While during this earlier period it was still in its inception, and therefore more general, it focuses, when applicable, on forests, and are e­ ssential to understanding the achievements of cooperation for environmental protection – or the lack thereof – at the regional level. By analyzing regional and international maturation jointly, trends, successes and failures, along with some of the reasons for those, can be observed. For example, international forest law was practically nonexistent during this first phase of regional development. However, the 1970s saw a rise of environmentalism through a global movement that jumpstarted at the 1972 United Nations Stockholm Conference. While the conference was not the sole reason – or even the main one – for a regional treaty focused on the world’s largest tropical forest, it influenced its development tremendously. These global events are shown throughout the ­following chapters, which follow a similar structure. 4.1

International Boundaries, Free Navigation, and Border Security

In the 19th century, bilateral friendship treaties between the Amazon countries were common: they defined borders and regulated navigation in transnational rivers.5 One of the first challenges of newly formed Amazonian nations

4 Id., at 50. 5 For example, in 1851, Brazil and Peru signed a Fluvial Convention that ensured free routes from the Amazonas River to neighboring riverine States. Treaty between Brazil and Peru of Oct. 23, 1851, expired Oct. 23, 1858; treaty of Jul. 26, 1851, came to an end on Dec. 9, 1863. See John Bassett Moore & Francis Vharton, A Digest of International Law, vol. 1, §131, 645 (1906). Also relevant are the 1851 treaty between Brazil and Peru, the 1853 treaty between Brazil and New Granada (present day Colombia), the 1859 treaty between Venezuela and Brazil, and the 1867 treaty between Bolivia and Brazil. See David França Ribeiro de Carvalho, O Tratado de Cooperação Amazônica no Contexto dos Processos de Integração Regional: da unidade fragmentada à unidade integrada 65 (2009) (unpublished Masters thesis, puc-mg), www.biblioteca.pucminas.br/teses/Direito_CarvalhoDF_1.pdf.

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was to maintain the borders previously defined by colonial powers.6 Based on the absence of terra nullius in Latin America, countries recognized that newly independent States should follow the same boundaries of colonies.7 As such, international treaties were signed based on the uti possidetis principle, which means “as you possess you shall continue to possess”.8 The prompt delimitation of its extensive international boundaries was one of Brazil’s main concerns once it reached independence from Portugal in 1822. It subsequently negotiated border treaties with Bolivia, Gran Colombia, British Guyana, Peru, and Venezuela.9 The interest was not purely political. Negotiations occurred during the “rubber boom” in the Brazilian Amazon, as the industrial revolution increased the demand for rubber, and, consequently, disputes over ill-defined boundaries.10 With independence, young states were left with large unoccupied territories, mostly foreign to them. It was important to dominate them, especially in the Amazon region, as the extraction of non-timber natural resources from Amazonia provided a path to economic prosperity. Independence also pushed for a revision of the rules on the navigability of international rivers. As Amazon countries emerged as actors in international trade, it was vital to discuss commercial routes and sovereignty of waters that led to the ocean. Defining political and territorial spaces became therefore particularly relevant for foreign relations between Amazon countries.11 Colonial powers were previously granted exclusive navigation rights over international rivers under their jurisdiction, as well as adjacent territories.12 The newly created Amazonian States continued to exercise exclusive navigation rights over their rivers after independence, although these were closed to outsiders. Dissatisfied with the arrangement, non-riparian States such as Great Britain, France and the United States demanded the opening of the Amazon basin to international navigation.13 Concurrently, a lieutenant of the United 6 7 8 9 10 11 12 13

Beatriz Garcia, supra note 3, at 51. Id., at 52, citing J. Barberis, “Les régles spécifiques du droit international en Amérique Latine,” Recuel de cours, vol. 235, 1992, p. 153. Id., at 52, citing C. Antonopoulos, The principle of uti possidetis iuris in contemporary international law, 49 Revue Hellénique de Droit International 29, 29 (1996). For a more in-depth analysis of the border treaties signed by Brazil during that period, see Beatriz Garcia, supra note 3, at 54–60. Id., at 56. Valéria Nely Cézar de Carvalho, Soberania e Confronto na Fronteira Amazônica (1850– 1910), 52(2) Anuário de Estudios Americanos 121, 129 (1995). Beatriz Garcia, supra note 3, at 60, citing C. Sosa-Rodriguez, Le droit fluvial international et les fleuves de l’Amérique Latine, 98–99 (1935). Id., at 60.

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States Navy raised the issue of internationalization of Amazonia to achieve a similar purpose. Maury Fontaine characterized the region as open to dispute and ­proposed the opening of its fluvial routes. Supported by broad media attention, the proposal gained force in 1851.14 While Brazil mostly took a protectionist position, other riparian States did not. An array of agreements followed, with Amazon States siding either with Brazil or the United States, and often changing their minds shortly after.15 From 1953, upper riparian States opened their rivers to international navigation.16 Brazil and Peru maintained a restrictive navigation regime. As Brazil possessed the Amazon’s entire downstream course, navigation was impeded.17 However, a few years later, these countries also opened the Amazon to international navigation.18 4.2

Environmental Agenda at the Global Level

In the period until the independence of Amazon states, environmental protection at the global level was still incipient. The first significant organization created with a conservationist focus was the International Union of Forest Research Organization (iufro), founded in 1892. iufro is a non-profit, ­non-governmental network of forest scientists who cooperate on a voluntary basis. Its denomination changed over time. Originally named the International Union of Forest Experiment Stations, it became the International Union of Forestry Research Organizations after World War i, and finally the iufro in 2000. iufro was conceived of during the 1890 Congress of Agriculture and Forestry in Vienna to centralize applied forest research in Europe.19 Originally focused only on forest research in Central Europe, the period between the two world wars saw it expand to include contributions from African, Asian, and South American forest researchers. The first major project that iufro took on was to establish international forestry “bibliographies” in 1903 for the first 14 15 16 17 18 19

Valéria Nely Cézar de Carvalho, supra note 11, at 130–131. Beatriz Garcia, supra note 3, at 61. Bolivia, Decree of January 27, 1853; Ecuador, Decree of November 26, 1853; Colombia, Law of May 24, 1856. Beatriz Garcia, supra note 3, at 63. Brazil, Decree No. 3.749 (Dec. 7, 1866), followed by Regulatory Decree of Jul. 31, 1867; Peru, Decree of Dec. 17, 1868. R. Seppala, iufro: History and Role in the 21st Century, in Environmental Forest Science, K. Sassa, ed. Springer Science+ Business Media Dordrecht (1998).

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time.20 Even now, iufro is recognized as a trailblazer in “establishing standards and harmonizing field investigations in forest research.”21 Another major early research thrust was conducting extensive experiments on the interactions between forests and water.22 Although initially founded by only three members,23 iufro grew over time as universities, forestry education centers and other forestry institutions joined. It currently unites more than 15,000 scientists in almost 700 Member Organizations in over 110 countries.24 Based on scientific evidence, iufro promotes global cooperation in forest-related research and enhances the understanding of the ecological, economic and social aspects of forests and trees. It disseminates scientific knowledge to stakeholders and decision-makers and contributes to forest policy and ­on-the-ground forest management. In 1948, the International Union for the Protection of Nature,25 the iucn was formed. Later renamed the International Union for the Conservation of Nature (iucn), it was the result of the advocacy of Sir Julian Huxley, then DirectorGeneral of unesco, and an early supporter of a strong science base for the organization.26 As the oldest and largest global environmental organization,27 iucn’s work is essential in promoting the biodiversity of the planet. IUCN has evolved into the world’s largest and most diverse environmental network, ­facilitating solutions to environmental problems through contributions from different stakeholders.28 20 21 22 23 24 25 26 27

28

Id., at 2. Id., at 2. Id., at 3. The Association of German Forest Experiment Stations, and the experiment stations of Austria and Switzerland. iufro, The Organization, http://www.iufro.org/discover/organization/. Leif E. Christofferson, iucn, A Bridge-Builder for Nature Conservation, Green Globe Yearbook 1997, at 60. Id. iucn, Vision and mission, available at https://www.iucn.org/regions/asia/about/visionand-mission. International membership-based environmental organizations such as iucn, iufro, and the fao do not exist without criticism. Their functionalities involve linking together practitioners and policymakers. Because of this dynamic, there are many critiques of the iucn body as a whole (as well as other organizations deemed to be “ideological actors”, “producing and circulating a definition” of – in the iucn’s case – what constitutes “conservation”. See Kenneth Ian MacDonald, iucn, A History of Constraint, Text of an Address given to the permanent workshop of the Centre for Philosophy of Law Higher Institute for Philosophy of the Catholic University of Louvain, (on file with author). However, the critical role played, and conservation work accomplished by the iucn in its long history is well-established and recognized worldwide. Id. at 59.

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iucn’s main goal was to link conservation experts and national organizations to create a global data center for information on the environment. Through information sharing, it intended for national members to develop more effectively in terms of environmental protection.29 Structurally, the iucn is a hybrid, membership-based organization arranged according to three pillars: membership, scientific and technical commissions, and the Secretariat. It is organized into six thematic commissions: Species Survival, Environmental Law, Protected Areas, Social and Economic Policy, Ecosystem Management, and Education and Communication.30 It convenes a Congress every four years, at which multiple key environmental agreements have been produced.31 iucn developed into an essential international environmental organization, producing indispensable tools in environmental governance. For example, the iucn Red List of Threatened Species (rls),32 which determines extinction risks across a broad spectrum of species,33 as well as the more recent Red List of Ecosystems,34 which identifies degraded ecosystems.35 These became a reference in species and ecosystem protection, leading to laws and policies that are based on its science. The iucn Commission on Ecosystem Management has set a target date of 2025 to assess the conservation status of the world’s terrestrial, freshwater, marine, and subterranean ecosystems.36 In addition, its World Commission on Protected Areas (wcpa), enumerates 29

30 31

32 33 34 35

36

Roger D. Schwass, Introduction to Sustainable Development, World Conservation Strategy of the International Union for the Conservation of Nature and Natural Resources (iucn) in Encyclopedia of Life Support Strategies 150 (David V.J. Bell and Yuk-kuen Annie Cheung eds., 2009). iucn, About, available at https://www.iucn.org/secretariat/about. These include the Convention on Biological Diversity (cbd), the Convention on International Trade in Endangered Species (cites), the World Heritage Convention, and the Ramsar Convention on Wetlands. Id. iucn, Overview of the iucn Red List, available at http://www.iucnredlist.org/about/ overview. Id. Id. The first efforts include the Venezuelan Red List of Terrestrial Ecosystems, which assessed the status of 18 vegetation types at national and state levels, with 10 more detailed case studies, as well as the ecosystems at risk of extinction in Colombia, Chile, and Brazil. iucn-cem (2014) The Red List of Ecosystems (rle), A Summary Briefing Note of Progress to Date. Projeto Lista Roja de Ecosistemas Brasil, available at https://www.iucn.org/ node/25362. iucn-cem (2014) The Red List of Ecosystems (rle), A Summary Briefing Note of Progress to Date.Venezuelan Red List of Terrestrial Ecosystems.

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and classifies various protected areas via globally recognized guidelines according to their management objectives.37 The guidelines have been widely used, and have served as a model for several countries, including many in Latin America. iucn’s categories for protected areas guide conservation efforts worldwide. Environmental protection emerged as a matter of international concern in the 1960s, leading to the first major conference on international environmental issues. At the proposal of the government of Sweden, the United Nations ­convened an environmental summit on the human environment in 1972. The Stockholm Conference was a turning point in the development of international environmental politics. It raised awareness for environmental concerns, and laid the foundation for global environmental governance worldwide. It resulted in the Declaration of the United Nations Conference on the Human Environment, a manifesto for nature and the need for protection, consisting of 26 principles.38 While the Declaration barely mentioned forests, it acknowledged the need to protect natural resources, including flora, for the benefit of present and future generations.39 By doing so, forests were included in the international agenda as a resource necessary for the well-being of generations to come. This period introduced a re-conceptualization of the environmental movement; previously in conflict with sustainable economic growth, it became an integral part of it, and proved a vital step for finding a path to move forward towards global forest protection.40 The Stockhom Declaration brought attention to the need of increased international cooperation, as “a growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, [they] will require extensive cooperation among nations and action by international organizations in the common interest.”41 In addition, International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing. (…) Cooperation through multilateral

37 38 39 40 41

iucn, Protected Areas Categories, available at https://www.iucn.org/theme/ protected-areas/about/protected-areas-categories. 1972 Declaration of the United Nations Conference on the Human Environment, Stockholm Declaration (June 16, 1972), u.n. Doc. A/Conf. 48/14/Rev. 1 (1973); 11 ilm 1416 (1972). Id., Principle 2. John McCormick, The Origins of the World Conservation Strategy, 10 Env. Rev. 3 177 (1986). Stockholm Declaration, supra note 33, Preamble.

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or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.42 Addressing an issue marginally mentioned at the Stockholm Conference, developing countries started pressing their post-colonial independence through the United Nations in its aftermath. It was particularly important to raise awareness for social equity and economic justice for poor countries. The General Assembly thus approved a series of resolutions to assert their authority over natural resources in the following years. These two movements had a significant role in developing cooperation in the Amazon region. The Stockholm Conference brought conservation as a main focus, legitimizing environmental issues as an international concern. On the other hand, developing countries emphasized their sovereignty, especially over resource exploitation, at the international level, as one of the biggest pillars of their right to development. These two conflicting issues characterized the discourse in the following decades. The balance between environmental protection and sovereignty still remains a divisive issue. Indeed, it is one of the biggest challenges of environmental law, and forest protection specifically, as well as of regional cooperation. 4.3

Bilateral Agreements and the Idea for Binational Parks

Cooperation in Amazonia was largely based on bilateral pacts, especially in the early stages. Amazon countries committed to cooperate through bilateral friendship agreements. These arrangements generally promoted cultural exchange, dissemination of language and culture, research, training, and regular trade of information.43 With few exceptions, they had an indirect influence on the environment, as the agreements induced environmental protection despite having a different focus. However, following the encouragement to 42 43

Id., Principle 24. Beatriz Garcia, supra note 3, at 51. Examples include the 1976 Treaty of Friendship, Cooperation, and Trade between Brazil and Suriname (Brazilian Ministry of Foreign Affairs, Divisão de Atos Internacionais, Coleção de Atos Internationais, vol. 875, Brasília, 1978.) and the 1977 Friendship and Cooperation Treaty between Brazil and Venezuela (Brazilian Ministry of Foreign Affairs, Divisão de Atos Internacionais, Coleção de Atos Internationais, vol. 941, Brasília, 1978).

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­environmental protection in the Stockholm Declaration,44 bilateral agreements with a primary environmental goal became a trend.45 For example, the Brazil-Peru 1976 Agreement on the Conservation of Fauna and Flora in the Amazonian Territories designated a regular exchange of information related to the conservation and development of wildlife and plant species.46 It intended to create nurseries in boundary areas and to establish biological reserves between both countries.47 The agreement was the first to preview binational protected areas as a path to ensure sustainability in the shared ecosystem.48 It acknowledged the inter-connectability of the ecosystem of bordering territories, and promoted a joint solution to ensure conservation. In 1975, a Technical Meeting on National Parks, Management and Conservation of the Amazon Biota took place, leading to the First Meeting of the Intergovernmental Technical Committee for the Protection and Management of Amazonian Forest and Fauna in 1976.49 A second meeting in 1989 identified three possible areas of cooperative protection: (i) the Binational Park ­Amacayacu-Cotuhé (Peru-Colombia), (ii) the National Loreto Park (between the Campuya River and the Eré River), and (iii) the Binational Park La PayaGüeppí (Peru-Ecuador-Colombia). In 1990, basic studies for the project of binational natural parks were developed, with the collaboration between Peru and Colombia chosen as the pilot project. However, information about the development of this project is scarce. Likely, it encountered setbacks once it reached the implementation phase, in the same way as many other projects that promoted environmental cooperation in Amazonia in the following years. 4.4

Foundations of Regional Cooperation

In 1864, a Brazilian lawyer, diplomat and politician, José Antônio Pimenta ­Bueno, known as the São Vicente Marquis, suggested a model for regional 44 45

46 47 48 49

Stockholm Declaration, supra note 38. See Beatriz Garcia, supra note 3, at 67. Examples include the 1973 and 1975 agreements on the conservation of fauna and flora in the Amazonian territories between Brazil and Colombia, and Brazil and Peru, respectively. Brazil, Decree No. 78016 (Jul. 12, 1976). Brazil, Decree No. 78802 (Nov. 24, 1976). Brazil, Federal Decree No. 78802, (Nov. 23, 1976), which implemented the Legislative ­Decree No. 39 (May 17, 1976). Id., art. 6. Id., art. 3(c). In the original: Comité Intergubernamental Técnico de Protección y Defensa de la Fauna y de la Flora Amazónicas. The agreement was updated in 1988 through the ­Peruvian-Colombian Amazon Cooperation Treaty.

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i­ ntegration of Amazonia. The proposal encompassed aspects of law, economy, trade, navigation, borders, and an external policy to promote regional protection of the forest against foreign interests.50 Although the project did not move forward, it laid the groundwork for the Amazon Pact, negotiated over a century later.51 In the beginning of the 20th century, cooperative mechanisms subsequently emerged under the auspices of the Pan American Union, a precursor of the Organization of American States (oas).52 The organization was founded with the purposes of regional solidarity, mutual defense of sovereignty, and cooperation among its member states. The protection of rivers for agricultural purposes was specifically relevant at the time. In 1933, the Declaration concerning the Industrial and Agricultural Use of International Rivers was passed, limiting the exclusive right of exploitation through the obligation not to injure the equal rights of a neighboring State over the margin under its jurisdiction.53 As the first cooperative mechanism in the region that directly mandated environmental protection, it highlighted the transboundary impact of national projects, urged countries to avoid damage outside their own borders, and seek prior consent from neighboring countries before altering the course of international rivers. Indeed, this was one of the first examples of a limitation to the right to the sovereignty of a country due to environmental aspects.54 In 1940, through a recommendation under the aegis of the Pan American Union, the Convention on Nature Protection and Wildlife Preservation 50

Proposal by José Antônio Pimenta Bueno, the São Vicente Marquis see David França Ribeiro de Carvalho, supra note 5, at 65. See also Vinicius Modolo Teixeira and Rita de Cássia Martins de Souza Anselmo, Integração e Conflitos na Região Amazônica in 2(1) Revista de Geopolítica, Ponta Grossa – pr 57, 58 (Jan./Jun. 2011). 51 Daniel de Campos Antiquera, A Amazônia e a política externa brasileira: análise do Tratado de Cooperação Amazônica (tca) e sua transformação em organização internacional (1978–2002), 25 (unpublished Masters thesis, unicamp/ifch, 2006). 52 oas, Our History, available at http://www.oas.org/en/about/our_history.asp. 53 Resolution lxxii (1933) in Pan American Union, Seventh International Conference of American States, Plenary Sessions, Minutes and Antecedents, Montevideo, 114. (Dec. 24, 1933), available at http://www.fao.org/docrep/005/w9549e/w9549e06.htm. 54 Resolution xciii on the Conference on Indian Life, Seventh International Conference of American States, Montevideo, December 3–26, 1933; Declaration xi on the Protection of the American Indigenous Populations; Resolution xiii on the Problem of the Indigenous Woman, Conference of Experts on Indian Life in the Americas, Eighth International Conference of American States, Lima, December 9–27, 1938. Other environmental topics addressed in the inter-American meetings include international sanitary policies, technical and cultural cooperation, and indigenous populations.

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in the Western Hemisphere (whc) was adopted.55 It included all of the Amazon States except Guyana. The whc was one of the first treaties to protect wildlife, provide for the regulation of trade in endangered species, and recognize noncommercial reasons for protecting migratory birds.56 It is largely perceived as ahead of its time. Despite establishing mechanisms that promote in situ conservation of native flora and fauna, and protecting regions of aesthetic, historic, and scientific value, the convention has never been well implemented.57 In 1948, an idea for the International Institute of the Hylean Amazon was proposed by the United Nations Educational, Scientific and Cultural Organization (unesco).58 Through scientific research and education, the institute would study the region at the macro level, ensuring lasting results in Amazonia.59 Concerned about the limited scientific regional knowledge, the project relied on the power of an international body to develop and share information.60 Membership would include Amazon countries, as well as other nations with a special environmental or social interest in the region. Though all States initially approved the proposal,61 only Ecuador and France ratified it. The Brazilian government refused to move forward, and particularly objected the autonomy conferred on the institute.62 The unrestricted membership, which gave equal rights to both non-Amazon and Amazon parties, was perceived as a threat to Brazil’s national sovereignty. While the initiative failed, it brought to light the need to produce further scientific knowledge about the Amazon.63 55 56

57 58

59

60 61 62 63

1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (whc), 161 unts 193. Kathleen Rogers and James A. Moore, Revitalizing the convention on nature protection and wild life preservation in the western hemisphere: might awakening a visionary but “sleeping” treaty be the key to preserving biodiversity and threatened natural areas in the americas?, 36 Harv. Int’l l.j. 465 (1995). Beatriz Garcia, supra note 3, at 69 (citing R. Birnie and A. Boyle, International Law and the Environment 202 (2002). International Hylean Amazon Institute, suggestion presented to the Executive Board by Paulo E. de Berredo Carneiro (Nov. 8, 1947) available at http://unesdoc.unesco.org/ images/0012/001267/126738eb.pdf. unesco, General Information on the Conference for the Establishment of the International Institute of the Hylean Amazon, iiha/1, Nat. Sci/42, 7 (February 12, 1948). See Beatriz Garcia, supra note 3, at 69. See Yearbook of the United Nations, iii: unesco, Hylean Amazon Project, 707–708, available at http://unyearbook.un.org/1946-47YUN/1946-47_P2_CH3.pdf. Bolivia, Brazil, Colombia, Ecuador, France, Italy, the Netherlands, Peru, and Venezuela. Beatriz Garcia, supra note 3, at 70. Id.

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In order to address this need, the Brazilian government created the Instituto Nacional de Pesquisas da Amazônia (inpa) in 1952.64 In addition, the equal membership between Amazon countries and the reassured sovereignty over their territory became the pillars of the Amazon Pact negotiated later on. In the 1960s, regional agreements for economic integration and tariffs emerged in Latin America. The Latin American Association of Free Commerce (alalc)65 and the Economic Commission for Latin America and the C ­ aribbean (cepal)66 were created with the intention to develop a free commerce zone among signatories. Brazil was not included in these undertakings, and for ­reasons beyond the scope of this book, they were not successful. In 1969, the Andean Community (can) was created. It established a common market for the Andean countries, and flourished at first. The trend towards regional integration in Latin America, which excluded Brazil, largely influenced the negotiation for an Amazon Pact.67 Finally, the 1969 La Plata River Basin Treaty between Argentina, Bolivia, ­Brazil, Paraguay and Uruguay brought a new form of cooperation for the preservation and sustainable development of a shared ecosystem.68 Based on an idea from the oas secretary-general, José A. Mora, and the president of Argentina, Arturo Illia, a treaty was negotiated to regulate cooperation in the 3.1 million square kilometers river system, second only to the Amazon basin.69 The La Plata model inspired the negotiation of a similar arrangement in the Amazon Basin. 4.5

Negotiations for an Amazon Club

Following the successful experience of the La Plata Treaty, Amazon countries started discussing the idea of an “Amazon Club” to enhance regional cooperation and promote mutual protection in the late 1970s. Negotiations arose in the 64 65

66 67 68 69

Instituto Nacional de Pesquisas da Amazônia (inpa), available at http://portal.inpa.gov .br/ (last visited Oct. 15, 2016). Associação Latino-Americana de Livre Comércio (alalc), later substituted by the Associación Latinoamericana de Integración (aladi), see aladi, available at http://www .aladi.org (last visited Oct. 15, 2016). Comisión Económica para América Latina y el Caribe, see cepal, available at http:// www.eclac.cl (last visited Oct. 15, 2016). Vinicius Modolo Teixeira and Rita de Cássia Martins de Souza Anselmo, supra note 50, at 60. Tratado da Bacia da Prata, signed on April 23, 1969, published in the Diário Oficial da União, 7371–7372 (Aug. 20, 1970). Beatriz Garcia, supra note 3, at 70–71.

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context of military dictatorships and authoritarian regimes that were common among potential members. It was therefore largely based on a spirit of defense, ignited by (potential) threats to national sovereignty. Based on the view that the Amazon basin was an ecological unity, and should therefore be managed jointly, the countries showed willingness to cooperate on a broader scale.70 The discussion was fueled by a multitude of factors. In summary, regional cooperation had three main goals: to (i) support mutual defense, (ii) ensure national sovereignty, and (iii) promote economic development.71 As the environmental agenda rose in a global context, so did the discussion about the international management of “global landmarks” such as the Amazon rainforest. During the Stockholm Conference, developed and developing countries discussed the possibility of internationalizing environmental ­reserves of specific global relevance, branding them as the world’s heritage, and therefore untouchable. Taking a defensive approach, the Brazilian government saw the call for preservation as an attack on its sovereignty.72 The country thus became a leader for developing countries, defending their need for economic development without environmental barriers. By arguing that social and economic factors should be integrated to environmental protection, developing countries established a consensus that environmental problems belonged to industrialized nations.73 It was the foundation of the principle of common but differentiated responsibilities (cbdr), which became one of the pillars of the developing countries’ position in international environmental law, including, most specifically, climate change negotiations.74 The Brazilian government, in particular, was concerned about the broad global interest in the region, and seemed convinced that States should define their own environmental policies instead of allowing the international community to dictate them.75 The international media often mentioned a broad interest in the Amazon that reduced Brazil’s ownership of the region, with quotes such as “the Amazon is the lungs of the world,”76 “Brazil must a­ ccept 70 71 72 73 74

75 76

Id., at 74. Carmelita Ossa Henao, supra note 1, at 82. Margaret E. Keck, Dilemmas for Conservation in the Brazilian Amazon in ecsp Report, ­Issue 7, 32. Rodolfo Ilário da Silva, Multilateralismo Amazônico, entre Êxitos Geopolíticos in bjir, Marília, vol. 2, No. 3, 538 (Set/Dez, 2013). See Maria Antonia Tigre, Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader, 5 Transnational Environmental Law 401 (Cambridge University Press 2016). Beatriz Garcia, supra note 3, at 67. Houston Post, 1989.

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a relative sovereignty over the Amazon,”77 “Brazil should delegate some of its rights [over the Amazon] to competent international organizations,”78 and “contrary to what the Brazilian think, the Amazon is not theirs, but for everyone.”79,80 When the world wasn’t looking to reduce Brazil’s sovereignty for environmental protection, the purpose was the exploitation of its natural resources. At the time, extravagant proposals were common. There was a plan to flood the majority of the region to create a path between the Atlantic and the Pacific. Another idea would transform Amazonia into a world bank for raw materials, to be used when industries exhausted all other reserves.81 The American magnate Daniel Ludwig had plans to set up a large-scale pulp and cellulose production in the Brazilian Amazon (the Jari project).82 Finally, the American Hudson Institute wanted to build a massive dam across the Amazon River.83 Indeed, Brazil feared that third-party States were motivated by an “international eagerness” (“cobiça internacional”) over the region.84 It thus advocated for mutual protection between Amazon countries. A regional approach would ensure national sovereignty over their respective territories against potential risks of foreign interference.85 Through a shared interest in environmental protection, countries could defend national sovereignty, their exclusive right to exploit natural resources and promote conservation as they saw fit, as well as their right to development. In light of the catchall solution, the Amazon countries thus united. 77 78 79 80 81

82

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84 85

François Mitterrand, 1989. Mikail Gorbachov, 1989. Al Gore, 1989. Beatriz Garcia, supra note 3, at 76. For an analysis of the economic threats to the region, see Leonardo Cunha de Brito, O Tratado de Cooperação Amazônica (tca) e a Sustentabilidade da Região map (1992– 2002) 19–23 (unpublished Masters Thesis, Universidade Federal de Santa Catarina, 2007). Beatriz Garcia, supra note 3, at 76 (citing J. Sautchuk, Projeto Jari: A invasão Americana, 14 (1979); L.F. Pinto, Amazônia Brasileira no rastro do saque (1980), A. Meira Mattos, Pacto Amazônico: cooperação e integracão, Revista Brasileira de estudos politicos, vol. 53, 1981, pp. 91–152.). The Hudson Institute of New York proposed creating several “Great Lakes” in the Amazon basin: three in Colombia (the Chocó project), one in Peru (on the River Ucayali), one on the border of Colombia and Venezuela (on the Atanapo and Guainia rivers), and one in Brazil (on the Amazon River near Monte Alegre). Id., citing C. Caubet, Le Traité de Coopération Amazonienne: regionalization et développement de L’Amazonie, Annuaire Français de droit international, vol. 30, 1984, pp. 803–818, at p. 812. Id., at 76. Id., at 75.

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Although environmental protection was at the core of negotiations, it was not the main purpose. Indeed, regional cooperation arose not because of environmental concerns or a common identity, but rather for political coordination to ensure national sovereignty.86 Countries wanted to clarify that the Amazon rainforest belonged exclusively to them. The message was clear: ­Amazon countries had full and incontestable sovereignty over their territories, as well as the single domain over the use and conservation of resources according to their own interests and development needs.87 In addition, they could cooperate and assume the integral responsibility to develop while protecting the environment. By assuming the responsibility, there was no need for international pressures or sanctions.88 As such, Brazil was the main proponent of a regional treaty. The need to incorporate the territory within the national economies of member countries fueled the need for cooperation. Without exception, the Amazon region in each State represented the lowest rates of social development and the least occupied areas. The Amazon should be a link between countries, ensuring preservation, protection of the territory, and its inclusion in the national development.89 It was a way to help countries incorporate the Amazonian territory in their local economies, while also improving social development and infrastructure. Due to the state of its external politics, a diplomatic solution to combine different levels of interest in the region was sought after.90 The proposal thus encompassed both an international integration with the possibility to reduce regional disparities and a national integration of the respective Amazonian territories within national economies.91 The plan was to create a regional cooperative scheme to induce proximity between countries, with international bodies based on unanimous votes to ensure equality.92 Finally, the idea was a reaction to the Andean Pact, using the Amazon Basin as a factor for integration among neighboring countries.93 Brazil, in particular, had its own reasons to develop sub-regional integration. Due to the regional context, it was necessary to become closer to its neighbors. It was important to end the rumors about Brazil’s intended expansion to the Pacific, and to 86 87 88 89 90 91 92 93

Rodolfo Ilário da Silva, supra note 73, at 535. Id., at 539. Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos para La Organización del Tratado de Cooperación Amazónica – otca, 12 (2003, non published paper). Leonardo Cunha de Brito, supra note 81, at 31. Id., at 27–31, for a more in-depth analysis of Brazil’s external politics at the time. Beatriz Garcia, supra note 3, at 61. Id., at 75–83. Id.

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d­ evelop its regional leadership. The Amazon Pact was also appealing to the other countries. Colombia and Venezuela were impressed with Paraguay’s economic development after being associated with Brazil in hydroelectric projects. Colombia needed to build roads and “pacify” indigenous communities. Venezuela aspired to create multinational Latin American companies through the treaty. Bolivia, on the other hand, sought ocean access through its fluvial system. Ecuador wanted free navigation in the Amazonas River and its intersecting rivers, a sore subject due to its conflicts with Peru.94 Taking advantage of the political momentum, the Brazilian Ministry of ­Foreign Affairs originated and promoted the idea of an agreement for joint development of the Amazon Basin.95 The country presented a first draft of the Amazon Pact in 1976. It was largely based on the La Prata Basin Treaty. The draft, however, was not immediately accepted. Preliminary talks on the agreement started in 1977, with three rounds of negotiations that followed in November 1977, March 1978 and June 1978. Brazil’s original draft was fundamentally altered. Led by Venezuela, ­countries raised concerns about several articles of the draft treaty.96 The main issue was the overall suspicion from Brazil’s proposal for cooperation and integration.97 Smaller countries feared Brazil’s hegemony in the region, and made sure to reject several provisions thought to give the country additional power. In addition, countries feared interference by the Amazon Pact on the Andean Pact. Brazil ensured countries that cooperation in the Amazon Basin would not establish a common market or address tariffs within the region. Rather, it would coordinate navigation in multinational rivers, promote other types of transportation, preserve fauna and flora, and induce studies in tropical medicine. It had no intention of integrating the region physically, and the ­organizations would be complementary rather than concurrent. The argument, however, is only partially true, since both initiatives share the goal of improving development through integration.98 94 95 96

97 98

Leonardo Cunha de Brito, supra note 81, at 33. David Ware, The Amazon Treaty: A Turning Point in Latin American Cooperation?, 15 Tex. Int’l L. J. 117, 120 (1980). Fernanda Mello Santana, Cooperação Internacional e Gestão Transfronteiriça da Água na Amazônia 93 (unpublished Masters Thesis, Universidade de São Paulo, 2009). For a historical analysis of the negotiations see David França Ribeiro de Carvalho, supra note 5, at 70–80. David Ware, supra note 95, at 120. Vinicius Modolo Teixeira and Rita de Cássia Martins de Souza Anselmo, supra note 50, at 61.

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As a result, some of the proposals for concrete action, and the language perceived as threatening by smaller nations, were removed from the draft.99 For example, one of the draft’s most important suggestions addressed the use of shared rivers. It posed that any use of watersheds that bordered two countries would require a bilateral agreement between them.100 Rivers that ran through several countries successively would be subject to an “extraordinary reasonable use doctrine”.101 Each riverine State could use the river according to its needs, but only so long as this use caused no damage to other States through which the river flows.102 The language reproduced the La Prata Basin Treaty,103 the oas’s 1933 agreement,104 as well as rules of International Law. However, other States rejected it, as it weakened each country’s sovereignty over natural resources. In addition, the provision would prejudice countries involved in river use or river boundary disputes, most likely Guyana, Suriname, Ecuador, and Peru.105 Due to the removal of this provision, one of the few that limited the right to develop and explore natural resources, there is no direction within the act’s framework as to how to address transboundary issues.106 The draft also included a provision mandating the establishment of infrastructure in the Amazon Basin, in order to promote more favorable c­ onditions for the transportation of people and goods throughout the region.107 The ­article addressed physical integration, but the language was unacceptable to other countries as it raised fears of a Brazilian imposed economic penetration in outside territory.108 Brazil’s proposal likewise contained mandatory studies 99 100 101 102 103 104 105

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107 108

David Ware, supra note 95, at 122. First draft of the Amazon Cooperation Treaty, art. v. David Ware, supra note 95, at 122. First draft of the Amazon Cooperation Treaty, art. v. For a complete analysis of the draft and the rejected provisions see David França Ribeiro de Carvalho, supra note 5, at 77–78 and David Ware, supra note 95, at 120–122. oas, supra note 53. David Ware, supra note 95, at 122. Venezuela had border disputes with Guyana and ­Colombia, Guyana with Suriname, Ecuador and Peru, and Bolivia’s issues with access to the ocean. Fernanda Mello Santana, supra note 96, at 90–91. Although International Law still applies, the decision to specifically leave the provision out of the final draft may be understood as a lex specialis. As such, it would override international law and the respect to the needs of neighboring countries. This interpretation is stronger when analyzed in conjunction with other treaty provisions that ensure the each countries’ sovereignty over their natural resources as well as its rational but unrestricted use. David Ware, supra note 95, at 122. First draft of the Amazon Cooperation Treaty, art. viii.

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to promote an “integrated process of regional economic complementation,”109 which would have potentially weakened the Andean Pact, and was therefore also rejected. Finally, requirements for concrete action110 were also removed from the original draft treaty, leaving only a broad requirement for studies to improve the physical infrastructure of the basin.111 The draft treaty’s most concrete conservation proposal, which established a “program of cooperation in matters of supervision and control, to guarantee the efficacy of conservation measures”, was eliminated from the final language.112 Some revisions, however, strengthened the treaty, particularly with respect to its institutional structure. Through other countries’ suggestions, the Amazonian Cooperation Council (acc) was created, along with a suggestion to develop a permanent Amazonian administrative body, or a secretariat, at a later date.113 Finally, the additions brought a new emphasis on conservation in the Basin and increased attention to indigenous inhabitants. The foreign ministers completed the modifications to the draft at the May 1978 meeting. The act was finally adopted in Brasília, Brazil on July 3, 1978, leading to the first phase of regional cooperation within its framework.114 4.6 Conclusion Cooperation between Amazon countries started as early as the 19th century, as newly independent states looked for ways to use their neighbors to improve their national conditions. The early stages of cooperation in Amazonia were characterized by non-environmental efforts to facilitate common goals and regulate disputes between countries. Indeed, cooperation initially had mostly other purposes; it addressed the definition of borders, national ­security, free trade, and the navigability of rivers. Although later agreements had an ­environmental focus, they mostly masked the real concerns: economic ­development and protection of national sovereignty. Concurrently, the period saw the rise of environmentalism at the global and regional level. For example, the iucn was created as an international 109 110 111 112 113 114

Id., art. ix. Id., art. viii. David Ware, supra note 95, at 123. Id. Id., at 124. Treaty for Amazonian Cooperation (Amazon Cooperation Treaty – act), 17 ilm, 1045 (July 3, 1978). Brazil, Federal Decree No. 85050 (Aug. 18, 1980).

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o­ rganization with a broad environmental mandate. The first major global conference also occurred, setting principles that set the foundation of International Environmental Law. In addition, the Stockholm Declaration reinforced the need for increased international cooperation in the environmental agenda, influencing the movement to bring Amazon countries together. In parallel with the plight for added environmental protection, developing countries started pressing their post-colonial independence through the United Nations, raising awareness for social equity and economic justice for poor countries. The movement was essential to emphasize sovereignty at the global level, especially with respect to resource exploitation. Similarly to the global movement, Amazon countries moved away from the view that the region was an endless source of natural resources to be extracted, and started perceiving it as a national good to be protected. Bilateral agreements regulating environmental protection were not uncommon, and included an innovative idea to create binational parks, which unfortunately did not move forward. Forests were still only marginally discussed, both regionally and globally. Despite the slow cooperation process, the period set the foundation for future cooperation. José Antônio Pimenta Bueno’s proposal for Amazonian integration and the attempt at creating the International Institute of the Hylean Amazon by unesco, albeit unsuccessful, set some of the trademarks of Amazonian cooperation. As the precursors of the Amazon Pact, both were essential in the discussions that led to an agreement in the following decades. Finally, the mosaic of supra-regional agreements in Latin America created a trend of regional integration that defined the purpose of the Amazon Pact. As recent independent countries, it was essential to protect each other and promote economic development without much interference from larger economies. Although the Amazon Basin was mostly used as a front for other purposes, it nevertheless set the foundation for environmental cooperation that would develop in the following decades. In the early stages of cooperation, the idea of an Amazon Pact started to be negotiated. Mostly as a response to the international discussions on ­environmental protection and the global value of nature, the pact was envisioned as a reactive proposal focused on mutual protection. Nevertheless, countries gathered for three rounds of negotiations during the 1970s, reaching a catch-all solution that addressed all of their concerns: ensure national sovereignty and the exclusive right to exploit natural resources and promote conservation, as well as their right to development. The Amazon Cooperation Treaty was signed in 1978, leading to the first phase of regional cooperation.

chapter 5

First Period of Cooperation within the act’s Framework (1978–1989): The DefensiveProtectionist Phase The search for a new meaning to good neighborly relations in the ­Amazon is already imposing a redirected public action, with reflections on geopolitics. The latter contemporaneously directs towards integration in different levels, of political boundaries, in order to reaffirm also at ­different scales, national [Brazilian] presence within a world space increasingly permeated by several unifying and at the same time, exclusive forces.1

∵ After intense negotiations between Amazon countries, the 1978 Amazon ­Cooperation Treaty (act) was finally signed in Brasília, Brazil on July 3, 1978.2 The act is an international treaty with regional application.3 It was adopted by eight Amazon countries, namely Bolivia, Brazil, Colombia, Guyana, Ecuador, Peru, Suriname, and Venezuela. It was negotiated with the purpose of “promot[ing] the harmonious development of their respective ­Amazonian ­territories in such a way that these joint actions produce equitable and m ­ utually beneficial results and achieve also the preservation of the ­environment, and 1 2 3

1 Bertha Becker, Amazônia, Geopolítica na virada do iii milênio, 65 (2007). In the original: “A busca de um novo significado para as relações de vizinhança na Amazônia já está impondo o redirecionamento da ação pública, com reflexos na geopolítica. Esta última caminha, contemporaneamente, no sentido da integração, em diversas escalas, das fronteiras políticas, como forma de reafirmar, também em diferentes escalas, a presença nacional dentro de um ­espaço mundial crescentemente perpassado por diversas forças unificadoras e, ao mesmo tempo, excludentes.” 2 Treaty for Amazonian Cooperation (Amazon Cooperation Treaty, hereinafter act), 17 ilm, 1045 (July 3, 1978). Brazil, Federal Decree No. 85050 (Aug. 18, 1980). 3 Vienna Convention on the Law of Treaties, un Treaty Series, vol. 1155, 331 (Jan. 27, 1980) [hereinafter Vienna Convention], art. 2, 1 (a): treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_006

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the conservation and rational utilization of the natural resources of those territories.”4 The treaty’s first article sets the goals on which it is founded.5 Member countries made clear that the development of the Amazon region depended on the integration of countries, on the conscious use of natural resources and its preservation. To ensure the fulfillment of this goal it was necessary to develop mechanisms to promote sustainable development in the region, while also ensuring sovereignty, reinforced through integration.6 Sovereignty was key. The act was designed to promote cooperative development of the Amazon Basin within a framework of conservation and complete respect for the national sovereignty of member countries.7 The act is an umbrella agreement, limited to establishing a legal basis for regional cooperation.8 As such, it requires additional accords for its full implementation.9 Indeed, the treaty provides for general cooperation efforts, ­flexible enough to be adapted to present and future needs as it develops. With few mechanisms that promote implementation, it is often interpreted as “an

4 5 6 7 8 9

4 act, art. 1. 5 Article i: The Contracting Parties agree to undertake joint actions and efforts to promote the harmonious development of their respective Amazonian territories in such a way that these joint actions produce equitable and mutually beneficial results and achieve also the preservation of the environment, and the conservation and rational utilization of the natural resources of these territories. Paragraph: To this end, they would exchange information and prepare operational ­agreements and understandings as well as the pertinent legal instruments which will permit the aims of the present Treaty to be attained. 6 Nery Jocasta Denis Asconavieta, Em busca do fortalecimento da soberania: uma análise to Tratado de Cooperação Amazônica – tca in 16 Revista Eletrônica da anphlac, 115, 123 (2014) (citing Andrés Fernando Piedra Calderón, A Organização do Tratado de Cooperação Amazônica e a Consolidação do Processo de Integração Sul-Americana (2007) and Paula Gomes Moreira, Política externa brasileira para a Amazônia: imperativos, atores e políticas (1964–2002) (­unpublished Master’s Thesis, uerj, 2012)). 7 David Ware, The Amazon Treaty: A Turning Point in Latin American Cooperation?, 15 Tex. Int’l L. J. 117, 117 (1980). 8 For a discussion on whether it is an umbrella agreement, a protocol of intentions, or an integration agreement, see David França Ribeiro de Carvalho, O Tratado de Cooperação Amazônica no Contexto dos Processos de Integração Regional: da unidade fragmentada à unidade integrada 85–88 (2009) (unpublished Masters thesis, puc-mg), www.biblioteca .pucminas.br/teses/Direito_CarvalhoDF_1.pdf. 9 Luis Barrera, and Guido Soares, The impact of international law on the protection of the ­Amazon region and further development of enviromental law in Brazil, 201 in Amazonia and Siberia: legal aspects of the preservation of the environment and development in the last open spaces (Nantinus Nijhoff, org., 1993).

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agreement to agree”.10 The structure is criticized, as fulfillment of projects and programs is often long and bureaucratic. The treaty, however, sets forth general guidelines for regional cooperation on a wide range of issues, such as the use of natural resources, transport and communications, science and technology research, health, and tourism.11 Additionally, it establishes limited, albeit more concrete, administrative and legal rules, creating a framework within which future accords, plans, and actions can be carried out.12 This chapter analyzes the core aspects of the act, including its principles and basic institutional structure, as well as its development during the first phase of cooperation. The first phase started with the signing of the treaty, and lasted until the first Meeting of the Presidents in 1989. It can be summarized in the table below. It established the treaty’s foundation. Due to the limited development and the main goal of reaffirming the sovereignty over the region, it is regarded as the defensive and protectionist phase.13 The timeline of the first phase can be observed in Table 11. Table 11

Timeline of phase 1 of cooperation within the act’s framework (1978–1989) i acc iii acc

act signed

i mmfa

World Conservation Strategy

1978

1979

1980

ii acc

ii mmfa

iii mmfa

Brundtland Report

1981

act entered into force

1982

1983 un Charter for Nature

1984

1985

1986

1987

itto created

1988

cesam created

1989

1990 ceaia created

cemaa created cecta created

10 11 12 13

10 11 12 13

David Ware, supra note 7, at 118. Beatriz Garcia, The Amazon from an international law perspective, 74 (2011). See act, arts. I through xvii. David Ware, supra note 7, at 118. See act, arts. xviii through xxviii. The categorization of the development of the organization in different phases was originally suggested by Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos

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Principles of the ACT

The act is based on a set of principles that set the foundation for cooperation between Amazon countries. Principles are often interpreted according to the time and place in which they were agreed on. As such, they largely reflect the careful negotiations between Amazon countries. The goal at the time was to maximize cooperation without adding any inconvenience or unnecessary risks to its members.14 As the treaty developed, scholars have often disagreed15 as to the number of principles included in the act, ranging from three to ten.16 Some principles, however, developed from the declarations later published within its framework. Others are arguably not principles, but rather guidelines and rules. This section identifies and discusses five fundamental principles of the act, present in the treaty’s preamble and articles, namely: (i)  ­sovereignty; (ii) ­conservation of natural resources; (ii) equality among members; (iv) ­cooperation; and (v) integration of the Amazonian territories into national economies. Principle of Sovereignty The main pillar of the act is the principle of sovereignty, invoked several times during the negotiations and largely reflected in its final text. Sovereignty is ­directly linked to political power. Indeed, as the legal rationalization of power, 14 15 16

14

15

16

para La Organización del Tratado de Cooperación Amazónica – otca 12 (otca, 2003, ­non-published paper). Rubens Ricupero, Tratado de Cooperação Amazônica in 3(5) Relações Internacionais: Ed. da unb 5–6 (1980); Rubens Ricupero, O Tratado de Cooperação Amazônica in 21(81) R ­ evista de Informação Legislativa 177–196 (1984). Five fundamental principles have often been identified as ruling cooperation in Amazonia: (i) the exclusive competence of its member states in the development and protection of Amazonia; (ii) national sovereignty in the use and preservation of natural r­ esources; (iii) regional cooperation as a way to facilitate the achievement of these two objectives;  (iv) the balance between economic development and protection of the environment; and (v) absolute equality between all member states. Id.. See also Antonio Quiroga and Jacques Marcovitch, supra note 13, at 4. See David França Ribeiro de Carvalho, supra note 8, at 92–96. The ten principles identified by scholars are: (i) principle of territorial sovereignty, (ii) principle of equality of states, (iii) principle of sustainable development, (iv) principle of cooperation, (v) principle of freedom of navigation, (vi) principle of solidarity, (vii) principle of constant search for integration, (viii) principle of non-interference in Amazonian matters, (ix) principle of hydrographic basin unity, (x) principle of participatory management.

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it transforms strength in legitimate power, or practical/factual power into legal power.17 The treaty’s preamble reads: CONSCIOUS that both socio-economic development as well as conservation of the environment are responsibilities inherent in the ­sovereignty of each State, and that cooperation among the Contracting Parties shall facilitate fulfillment of these responsibilities, by continuing and expanding the joint efforts being made for the ecological conservation of the Amazon region18 (highlighted) Indeed, national sovereignty protects the region against the threat of internationalization through a joint answer, ensuring Amazonia’s development and occupation, realized through cooperation.19 The principle has two aspects: national sovereignty and sovereignty over natural resources. The first aspect relates to the right to develop their respective Amazonian territories. As such, sovereignty is not enforced regionally, but rather nationally. As a general rule, regional policies shall not interfere with national projects and undertakings: The decisions and commitments adopted by the Contracting Parties under this Treaty shall not be to the detriment of projects and undertakings executed within their respective territories, according to International Law and fair practice between neighboring and friendly ­countries.20 (highlighted) The second aspect ensures the exclusive right of Amazon countries to the use of natural resources within the region. It is a well-established international practice that every state has the right to manage and utilize natural resources within its jurisdiction and to formulate and pursue its own environmental and developmental policies.21 The principle reflects the Stockholm Declaration, as

17 18 19 20 21

17 18 19

20 21

Norberto Bobbio et al., Dicionário de política 1179 (1998). act, preamble. Armando Gallo Yahn Filho, O conceito de Bacia de Drenagem Internacional no contexto do Tratado de Cooperação Amazônica in 8(1) Ambiente & Sociedade 6 (2005). See also Nery Jocasta Denis Asconavieta, supra note 6, at 126. act, art. iv. act, art. xvi. Lal Kurukulasuriya and Nicholas A. Robinson, Training Manual on International Law 27 (2006).

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well as several resolutions by the un General Assembly.22 The same principle was later reinforced in the 1992 Rio Declaration.23 This aspect of sovereignty ­reinsures member countries’ right to develop and occupy the region, a right that cannot be undermined.24 Indeed, the principle authorizes States, inside their territories and within the limits of International Law, to conduct or authorize activities that can potentially cause adverse effects on the environment: The Contracting Parties declare that the exclusive use and utilization of natural resources within their respective territories is a right inherent in the sovereignty of each state and that the exercise of this right shall not be subject to any restrictions other than those arising from International Law.25 (highlighted) By assigning to themselves the responsibility for the socio-economic development and conservation of the environment, the Amazon countries reinsured their national sovereignty. Sovereignty of Amazon countries is unrestricted, and is only subject to the limits previously established in International Law.26 The unrestricted sovereignty is at the act’s core, as it represents different nations with common goals pursued jointly without any limitations to national power. Rather, sovereignty is strengthened through cooperation. The two aspects of sovereignty represent a response to the plight of developed countries that the exploitation of natural resources in developing countries had consequences worldwide. It ensured that there would be no international control over how Amazon countries chose to develop internally, and use their natural resources. However, the act failed to replicate the second part of Principle 21 of the Stockholm Declaration, which granted responsibility or obligations of States not to harm the environment of other States, or beyond the limits of national jurisdiction.27 The principle of responsibility for transboundary harm is well established in International Environmental Law, and is often interpreted as a 22 23 24 25 26 27

22 23

24 25 26 27

unga Res. 523 (vi) 1950; Res. 626 (vii) 1952; Res. 837 (ix) 1954; Res. 1314 (xiii) 1958; Res. 1515 (xv) 1960; Res. 1803 (xvii) 1962. 1972 Stockholm Declaration, Principle 21 and 1992 Rio Declaration, Principle 2. act, Preamble; art. iv. Later reaffirmed in the 2004 Declaration of Manaus, §3. Philippe Sands, Principles of International Environmental Law 236–237 (2003). David França Ribeiro de Carvalho, supra note 8, at 92–96. act, art. iv. act, art. iv. David França Ribeiro de Carvalho, supra note 8, at 97.

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rule of customary international law.28 As such, member states are still bound by the rule, regardless of the lack of recognition in the act. However, the ­absence of explicit responsibility for transboundary harms remains one of the biggest gaps in the treaty, as it does not provide guidance as to how to resolve conflicts between states, either in anticipation of potential harms, or in its aftermath. For example, the Association of South East Asian Nations (asean), a regional integration organization in Southeast Asia, specifically included the principle in their Agreement on the Conservation of Nature and Natural Resources, reinforcing the rule of International Law.29 Principle of Conservation of Natural Resources30 The sovereign right of member countries to exploit natural resources shall be employed with due respect to the environment through the sovereign responsibility to protect Amazonia.31 It was important to address the global concerns voiced in the Stockholm Conference, ensuring that the need to promote development within the region would not undermine the member countries’ commitment to the environment. There is an inherent duty to preserve the Amazon’s ecosystem, with an obligation for its preservation, conservation and rational use of natural resources.32 Indeed, article i of the treaty reads: The Contracting Parties agree to undertake joint actions and efforts to promote the harmonious development of their respective Amazonian territories in such a way that these joint actions produce equitable and mutually beneficial results and achieve also the preservation of the ­environment, and the conservation and rational utilization of the natural resources of these territories.33 (highlighted) Sustainable development is therefore a path to achieving overall regional progress. For this purpose, it is necessary to find a balance between ­economic 28 29 30 31 32 33

28 29 30

31 32 33

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 i.c.j. Reports 226, 241–242 (July 8). asean Agreement on the Conservation of Nature and Natural Resources (1985), art. 20. Also called the principle of sustainable development, due to the advancement of rational use of natural resources in the region. Since the term “sustainable development” was only adopted by the Brundtland Report in 1987, the term is not used to define the principle of the act in this book. Later reinforced through the 2004 Declaration of Manaus, §2. act, art. i. act, art. i.

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growth and environmental conservation. This balance has been the main ­challenge faced by Amazon countries over the past decades. In addition, an equitable distribution of benefits shall be promoted.34 Sustainable development is also an avenue to ensure each country’s sovereign right over the region. Indeed, Amazon countries were conscious of their responsibility to preserve the environment while searching for socio-economic development, inducing sustainable progress.35 The preamble reads: CONSIDERING that, so as to achieve overall development of their r­ espective Amazonian territories, it is necessary to maintain a balance between economic growth and conservation of the environment, CONSCIOUS that both socio-economic development as well as conservation of the environment are responsibilities inherent in the ­sovereignty of each State, and that cooperation among the Contracting Parties shall facilitate fulfillment of these responsibilities, by continuing and expanding the joint efforts being made for the ecological conservation of the Amazon region,36 (highlighted) At the same time, the principle of environmental protection both reinforced and limited each country’s sovereign right. It strengthened sovereignty by having Amazon countries take ownership of the duty to promote environmental preservation. By assuming responsibility, it was less likely that third parties would interfere in the region, as they could no longer argue that Amazon countries weren’t doing anything to protect it. On the other hand, environmental conservation reduced their sovereign right to exploit natural ­resources.37 The weakening of sovereignty was done voluntarily, and represented a “necessary evil” to eliminate the threat of internationalization. As a result, the c­ onservation, preservation, and exploitation of natural resources are of ­exclusive responsibility of Amazon countries. No other country can interfere in the matter. Principle of Equality In order to avoid threats of hegemony from any country, especially from Brazil, the act is based on the principle of absolute equality among its members.38 The principle is materialized through a system of unanimous vote: 34 35 36 37 38

34 35 36 37 38

act, Preamble. David França Ribeiro de Carvalho, supra note 8, at 98. act, Preamble. Nery Jocasta Denis Asconavieta, supra note 6, at 127. act, art. xxv.

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Decisions at meetings held in accordance with Articles xx and xxi shall always require the unanimous vote of the Member Countries of this Treaty. Decisions made at meetings held in accordance with Article xxiv shall always require the unanimous vote of the participating countries.39 (highlighted) Reflecting the focus on the issue during negotiations for the act, equality is mentioned several times in the treaty, reinforcing the need for “equitable ­distribution of benefits”, “equitable and mutually beneficial results”, and “equitable and mutually beneficial conditions”: Inspired by the common aim of pooling the efforts being made, both within their respective territories as well as among themselves, to promote the harmonious development of the Amazon region, to permit an equitable distribution of the benefits of said development among the Contracting Parties so as to raise the standard of living of their peoples and so as to achieve total incorporation of their Amazonian territories into their respective national economies,40 (highlighted) The Contracting Parties agree to undertake joint actions and efforts to promote the harmonious development of their respective Amazonian territories in such a way that these joint actions produce equitable and mutually beneficial results and achieve also the preservation of the environment, and the conservation and rational utilization of the natural resources of these territories.41 (highlighted) The Contracting Parties recognize the benefit to be derived by developing, under equitable and mutually beneficial conditions, retail trade of products for local consumption among the respective Amazonian border populations, by means of suitable bilateral or multilateral a­ greements.42 (highlighted) The principle of equality among states is well recognized under International Law. For example, the Montevideo Convention on the Rights and Duties of States reads: 39 40 41 42

39 40 41 42

act, art. xxv. act, Preamble. act, art. i. act, art. xii.

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States are juridically equal, enjoy the same rights, and have equal ­capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.43 (highlighted) Likewise, the equality of nations is a principle of the United Nations: The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: The Organization is based on the principle of the sovereign equality of all its Members.44 In summary, member states are equal, regardless of each country’s share of the basin or rainforest ecosystem, of their financial contribution or position taken within the organization (for example, if hosting the pts or Secretary-General). While the equality of States is a pillar of cooperation, the unanimity required in the decisions by the bodies of the act often hinder its development. The structure remains one of the institutional challenges of the act, and the acto that developed from it. Principle of Cooperation The relationship between member countries, as well as within the Amazonian territory itself, is informed by the principle of cooperation. Cooperation shall be promoted on specific common matters in order to benefit the region as a whole, as well as countries individually.45 It is based on the premise that the Amazon Basin is indivisible, and shall be jointly and commonly developed between the riverine countries. Indeed, it reflects the international obligation to cooperate on multilateral environmental agreements, as it relates to the harmonic development of humanity.46 The treaty’s preamble reads:

43 44 45 46

43

CONSCIOUS that both socio-economic development as well as c­ onservation of the environment are responsibilities inherent in the sovereignty of each State, and that cooperation among the Contracting Parties shall facilitate fulfillment of these responsibilities, by c­ ontinuing

Montevideo Convention on the Rights and Duties of States, 165 lnts 19; 49 Stat 3097 (Dec. 26, 1933), art. 4. 44 u.n. Charter art. 2, para 1. 45 act, Preamble. 46 Sands, supra note 23, at 250.

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and expanding the joint efforts being made for the ecological conservation of the Amazon region, CONFIDENT that cooperation among the Latin American nations, on specific matters which they have in common shall contribute to progress on the road towards the integration and solidarity of all Latin America, CONVINCED that this Treaty represents the beginning of a process of cooperation which shall benefit their respective countries and the Amazon region as a whole,47 (highlighted) In addition, the treaty specifically mentioned technical and scientific cooperation,48 cooperation in tourism,49 permanent exchange of information,50 as well as cooperation for conservation of the ethnological and archeological wealth of Amazonia: The Contracting Parties shall cooperate in ensuring that measures adopted for the conservation of ethnological, and archeological wealth of the Amazon region are effective.51 As a pillar of the act, cooperation was always reinforced during the development of the treaty, both between member countries, and third parties alike. Principle of Regional Integration The principle of regional integration has two aspects: integration of the Amazon region, and integration of the respective Amazonian areas into their national territories. The first aspect developed in the following decades, and initially had a secondary role in the act due to other efforts in regional integration that developed in Latin America before the negotiation of the treaty. The second aspect, however, was a main concern of countries since the beginning. Indeed, the preamble reads:

47 48 49 50 51

47 48 49 50 51

CONSCIOUS of the importance to each one of the Parties of their ­respective Amazonian regions as an integral part of their respective territories, act, Preamble. act, art. ix(1). act, art. xiii. act, art. xv. act, art. xiv.

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INSPIRED by the common aim of pooling the efforts being made, both within their respective territories as well as among themselves, to promote the harmonious development of the Amazon region, to permit an equitable distribution of the benefits of said development among the Contracting Parties so as to raise the standard of living of their peoples and so as to achieve total incorporation of their Amazonian territories into their respective national economies, CONFIDENT that cooperation among the Latin American nations on specific matters which they have in common shall contribute to progress on the road towards the integration and solidarity of all Latin America, RESOLVE to sign the following Treaty52 (highlighted) As such, the focus of the act – at least originally – was to bring the Amazon region closer within each country to the rest of the territory, especially in terms of economic development. The principle leads to the consequent absolute priority of the internal effort in the policy of development of the respective Amazonian territories.53 While the provisions included in the act do not directly link integration to environmental protection, sustainable development is at the core of the treaty. The 1995 Copenhagen Declaration on Social Development clarified the ­concepts of integration and interdependence.54 Indeed, economic development, social development, and environmental protection at the local, national, regional, and global levels are the pillars of sustainable development, and shall be advanced independently and mutually through a collective responsibility.55 Several other treaties that developed in the following decades feature international economic policy and law in environmental considerations.56 5.2

Territorial Scope of the ACT

As a general rule, treaties are binding across the entire territory of its member parties, “unless a different intention appears from the treaty or is otherwise

52 53 54 55 56

52 53 54

55 56

act, Preamble. Rubens Ricupero, supra note 14, at 5–6. Rubens Ricupero, supra note 14, at 177–196. 1995 Copenhagen Declaration on Social Development, para. 6: “economic development, social development and environmental protection are interdependent and mutually ­reinforcing components of sustainable development, which is the framework for our ­efforts to achieve a higher quality of life for all people.” 2002 Johannesburg Declaration on Sustainable Development, para. 5. Lal Kurukulasuriya and Nicholas A. Robinson, supra note 21, at 25.

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established.”57 Multilateral environmental agreements (meas), along with treaties for the protection of culture, generally apply to the entire territory of parties.58 Exceptionally, however, a treaty’s territorial scope can be restricted, limiting where it is binding. In those cases, the territories affected by the rights and obligations set up by the treaty are specifically defined. Furthermore, some treaties expressly relate to a particular territory or area, establishing the object to which it is applied. Examples include the Antarctic Treaty,59 the Moon Treaty,60 or the Outer Space Treaty.61 On those cases, the enjoyment of rights and the performance of the obligations are restricted to a particular territory or area. The territories with respect to which each party contracted in entering the treaty determine its territorial scope.62 The act included an explicit territorial clause, strictly limiting the treaty to the respective Amazonian territory of its member countries.63 Indeed, article ii determines its geographical extension: This Treaty shall be in force in the territories of the Contracting Parties in the Amazon River Basin as well as in any territory of a Contracting Party which, by virtue of its geographical, ecological or economic characteristics, is considered closely connected with that Basin.64 (highlighted) Two clear guidelines can be drawn from it: the treaty applies to (i) the t­erritories in the Amazon River Basin; and to (ii) any territory, by virtue of its geographical, ecological or economic characteristics, which is considered closely connected with that basin. The first guideline specifically relates to the ­hydrological criterion that defines Amazonia, which defines the region based on the total extent of the Amazon Basin.65 However, the open-ended wording

57 58 59 60 61 62 63 64 65

57 58

59 60 61 62 63 64 65

Vienna Convention, art. xxix. Kerstin Odendahl, Article 29. Territorial scope of treaties in Vienna Convention on the Law of Treaties: A Commentary 494–495 (Oliver Dörr and Kirsten Schmalenbach eds., 2012). 1969 Antarctic Treaty, 402 unts 71. 1979 Agreement Governing the Activities of States on the Moon and Other Celestial ­Bodies, 18 ilm 1434. 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 unts 205. Kerstin Odendahl, supra note 58, at 494–495. David França Ribeiro de Carvalho, supra note 8, at 202. act, art. ii. See Chapter 1, Section 1.2.

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of the second guideline leads to a wide range of possibilities. The broad and unclear territorial scope of the act has often hindered the agreement due to a lack of uniformity in defining Amazonia, and remains one of the weak links of the act after 30 years of development.66 The second criterion allows, nonetheless, the inclusion of Suriname and Guyana as parties of the treaty.67 Although French Guyana shares the Amazon Basin according to the hydrological aspect, it was diplomatically excluded from the treaty due its status as an overseas department of France, and its consequential dependence on Europe.68 5.3

Duration, Reservation and Dispute Resolution

The act has an unlimited duration, being therefore a permanent treaty of successive effects. Indeed, its execution is prolonged over an indefinite set of time.69 The decision to renounce the act must be announced by the departing member state to the other signatories at least ninety days prior to the formal delivery of the instrument of denunciation to Brazil.70 The treaty will no longer bind the denouncing member state one year after the delivery of the denunciation instrument.71 It does not provide further guidance on the legal effects of denunciation. However, the Vienna Convention applies:

66 67 68 69 70 71

66 67 68 69 70 71

Consequences of the termination of a treaty 1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. 2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the See Chapter 1, Section 1.2. Beatriz Garcia, supra note 11, at 86. As seen in Chapter 1, Suriname and Guyana do not share the Amazon Basin, but have the same biome of the Amazon rainforest. Id. act, art. xxvii. act, art. xxviii, §2. Id.

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other parties to the treaty from the date when such denunciation or withdrawal takes effect.72 In any case, the obligations of a country under International Law shall not be impaired: Obligations imposed by international law independently of a treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.73 Reservation74 by any country is prohibited.75 As such, member countries must accept all the treaty’s provisions within the treaty, or none at all. Accordingly, no interpretative declaration is accepted.76 The treaty is interpreted in light of the principles set forth in the Vienna Convention,77 such as the principle of good faith, as well as the principles set forth in the act’s preamble, as highlighted in this chapter.78 The act does not contain any specific provisions on dispute resolution. Instead, it operates by consensus, based on the guiding principle of equality among member states. It emphasizes the sovereignty of each country; therefore, a party cannot be obligated to undertake any action that it did not approve. However, conflicts may still arise due to the undertaking of a project in one country, which has negative impacts on another. In such occasions, states have to turn to answers within general International Law mechanisms, due to the absence of regional solutions. The lack of mechanisms remains one of the treaty’s biggest institutional weaknesses.

72 73 74 75 76 77 78

72 73 74

75 76 77 78

Vienna Convention, art. 70. Vienna Convention, art. 43. Vienna Convention, art. 2 (d) “‘reservation’” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or ­acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. act, art. xxvi. When a member country interprets certain provisions of the treaty according to its own view, and expressly declares it when signing the treaty. Vienna Convention, art. 31. David França Ribeiro de Carvalho, supra note 8, at 140–141.

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Member Countries’ Rights

Although the act is a broad umbrella agreement often regarded as soft law, some rights can be inferred from its language. As a consequence of the ­sovereignty principle, member countries have the exclusive right to fully use natural resources within their territories.79 This right is based on the premise that countries have specific needs according to their national economies, and those shall not be hindered due to environmental protection. It should be noted, however, that the right has limitations in international and national law, as will be specifically analyzed in upcoming chapters. The treaty ensured a general right to navigation within the Amazon Basin, based on reciprocity among States.80 At the time the treaty was drafted, free navigation was one of the primary goals. This right, however, is not absolute, as it is subject to regulation within each national territory. As a corollary of the equality principle, countries have the right to be equality treated, regardless of the percentage of their Amazonian territory or their financial contributions to the acto. In addition, they have the right to an equal vote within the organization. All decisions adopted by the bodies of the act require unanimous vote by all member countries.81 As such, the act implicitly conferred upon all members a veto right.82 The veto right ensures the respect to the countries’ sovereignty, legal equality, auto-determination and non-­interference.83 It was necessary to address the concerns of hegemony of States, and of Brazil in particular. In practice, however, it often delays implementation of projects, as it requires full participation and common decision by all member countries. An exception was given to the meetings of the special Commissions, will shall only require the unanimous vote of the participating countries, facilitating agreement.84 5.5

Member Countries’ Duties

Since the general concern at the time the treaty was negotiated was to avoid additional obligations to countries, the treaty is very limited in terms of 79 80 81 82 83 84

79 80 81 82 83 84

act, art. iv. act, art. iii. act, art. xxv. David França Ribeiro de Carvalho, supra note 8, at 140. Id. act, art. xxv.

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­commitments of member countries. Although some can be inferred, its language is fairly vague.85 With no specific and mandatory legal obligation, states have broad discretion as to what needs to be done, and by which means.86 ­Execution can therefore hardly be assessed by external objective control mechanisms, such as a process of judicial control.87 That being said, the treaty still provides guidance to the adoption of further documents and mechanisms, including strengthening the institution itself. In addition, it induces a political and moral pressure on the States to comply with its guidance.88 Although the States acknowledge a responsibility to preserve the environment,89 this is not an enforceable or absolute duty. While environmental protection, based on sustainable development90 and ecological balance,91 is a central concern, sovereignty over natural resources and economic development, which is an actual right, can always be argued to limit environmental obligations. As a consequence, countries are still undergoing major projects within the Amazon rainforest, such as exploitation of oil and gas, mining and energy, regardless of their effects on the ecosystem as a whole or on either bordering country specifically. The Member States have a duty to maintain a permanent exchange of information. Exchange of information encompasses scientific research92 and conservation measures93 between member parties and cooperative international

85 86 87 88 89 90 91 92 93

85

86

87 88 89

90 91 92 93

For example: “declare that”, “shall make efforts”, “agree on the advisability of”, “agree to encourage”, “seek to maintain”, “give special attention to” (act, arts. 4; 5; 10; 11; 15; 17). See Beatriz Garcia, supra note 11, at 95. Soft Law, as opposed to Hard Law, has a voluntary character, consistent with the principle of subsidiarity. It establishes directives, leaving to the Member States to choose the best national strategy to achieve it. It discusses common goals and interests, the exchange of knowledge and experience, thus respecting both the unity and diversity among states. In soft law mechanisms there is no coercion, and the obligations do not bind the Member States. See Kenneth W. Abbott et. al., The Concept of Legalization in 54(3) International Organization 401–419 (2000). Beatriz Garcia, supra note 11, at 95. Id. act, Preamble. See Ernesto Roessing Neto, Brasil, Bolívia, o Tratado de Cooperação Amazônica e as Hidrelétricas do Rio Madeira, Revista da Faculdade de Direito da ufmg No. 51, 79 (Jul – Dez 2007), available at http://www.direito.ufmg.br/revista/index.php/revista/ article/viewFile/51/48. act, Preamble. act, art. i. act, art. vii. act, art. vii(a). act, art. vii(h).

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agencies94 in areas such as flora, fauna, and diseases. The exchange of information is one of the treaty’s main and the most complied with obligations. Indeed, there is a general duty to cooperate95 among themselves, as well as with other agencies operating in the Amazon River Basin.96 The duty to cooperate is manifested in specific areas, such as water,97 navigation,98 ecological balance and preservation of species,99 health,100 research,101 and tourism.102 The treaty also specifically provides for the protection of water resources,103 fauna and flora,104 and the conservation of the region’s ethnological and archeological wealth.105 In addition, it mentions the prevention of transboundary pollution and protection of indigenous populations.106 Subsequent resolutions and nonbinding instruments adopted under the act’s framework developed the topic of forests further.107 In this sense, the current duty to protect the environment, albeit limited, spreads over several areas, such as forests, water, soil, natural protected areas, biological diversity, biotechnology, and biotrade.108 Since the organization’s policies have developed beyond the specific areas set forth initially, it can be inferred that those do not limit the scope of the treaty and the organization. Member States commit to make efforts towards the rational use of water resources due its social and economic role within each country.109 These ­efforts have included the establishment of a hydro meteorological database of the 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109

94 95 96 97 98 99 100 101 102 103 104 105 106 107

act, art. xv, art. ix, 2. act, Preamble. act, art. vii(a). act, art. 5. act, art. 6. act, art. vii. act, art. 8. act, art. ix. act, art. xiii. act, art. v. act, art. vii. act, art. xiv. Beatriz Garcia, supra note 11, at 92. Garcia explains that Environmental Law was still in its infancy at the time, and environmental issues were not as developed as they are today. For example, the term “biodiversity” was not introduced in the original language, and “environment” and “natural resources”, terms that were indeed used, were not defined. Beatriz Garcia, supra note 11, at 92–93. 108 Defined in the 2004–2012 Strategic Plan as the programmatic areas identified relating to the environment. 109 act, art. v.

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Amazon region, strengthening technical cooperation between countries in hydrology and climatology, and encouraging the use of remote sensing. The language is, once again, weak, ensuring no actual obligation, only a commitment to try. In addition to the general obligations, the act subjects parties to restrictions from International Law.110 The express reference to International Law reinforces mandatory and enforceable obligations that generally apply to all states, such as the 1972 Stockholm Declaration111 and the 1992 Rio Declaration.112 These ensure, for example, that States have the obligation to avoid ­environmental damage in other States and beyond their natural borders.113 5.6 Ratification A treaty enters into force after ratification, a unilateral way to express the consent of a state to be bound by it.114 The act required parties to sign the treaty, therefore manifesting their general consent.115 Brazil is the act’s depository,116 and the ratification instruments were deposited with its Ministry of Foreign Relations.117 It took countries two years to ratify the agreement.118 Venezuela was the last country to do so, in July 1980. The act entered into force on ­August 2, 1980,119 30 days after Venezuela deposited its ratification in Brasília.120 110 111 112 113 114 115 116 117 118 119 120

110 act, art. iv. 111 1972 Stockholm Declaration. 112 A/CONF.151/26 (Vol. i), Report of the United Nations Conference on Environment and Development, held in Rio de Janeiro between 3–14 June 1992, Annex i: Rio Declaration on Environment and Development (Aug. 12, 1992). 113 1972 Stockholm Declaration, Principle 21. 114 Vienna Convention, art. 10. 115 act, art. xxviii. See Vienna Convention, art. 10. 116 act, art. xviii. 117 David França Ribeiro de Carvalho, supra note 8, at 202 (until the acto was created in 2002). 118 Bolivia, Decree-Law No. 16811 (Jul. 19, 1979); Brazil, Decree No. 85.050 (Aug. 18, 1980); ­Colombia, Law No. 74 (Aug. 2, 1980); Ecuador, Supreme Decree No. 3242 (Feb. 21, 1979); Peru, Decree-Law No. 22660 (Aug. 27, 1979). 119 David França Ribeiro de Carvalho, supra note 8, at 202. 120 act, art. xxviii.

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Institutional Structure of the act

The primary purpose of the treaty was to devise a flexible and simple institutional framework. With few bodies and temporary secretariats, excessive financial costs and burdensome bureaucratic procedures would be avoided.121 Although the limited configuration made sense at the time, its constraints were soon realized. Discussions on how to institutionally strengthen the treaty became a constant topic of discussion. The act envisioned the potential need for a revised institutional structure by including a general obligation for parties to undertake additional “operational agreements and understandings, as well as pertinent legal instruments” to attain to the treaty’s goals.122 Hence, the development of the treaty’s framework was foreseen, leading to its later amendment. Its implementation and structure is left to protocols and annexes. Due to this framework, the treaty is narrow and presents limited obligations to parties. In the beginning, the act consisted of a simple configuration with three bodies: the Meeting of Foreign Affairs (mmfa), the Amazon Cooperation Council (acc), and the Pro Tempore Secretariat (pts). In addition, the treaty mandated the institution of Permanent National Commissions (pncs) at the national level. Finally, the Meeting of the Presidents was created through practice in the second phase of development, without specific recognition in the act’s language. This model is summarized in Figure 1, followed by an overview of each body. The Meeting of the Presidents The Meeting of the Presidents of Amazon States is a fundamental forum for dialogue on common interests, exchange of opinions and consensus on actions geared to achieving regional development through policies and strategies.123 It functions as a major policy coordinator, and is an essential mechanism to

Meeting of the Presidents

Figure 1

Meetings of Foreign Affairs Ministers

Amazon Cooperation Council

Pro Tempore Secretariat

act’s Structure.

121 122 123

121 Beatriz Garcia, supra note 11, at 74. 122 act, art. i. 123 acto, Meeting of Presidents, available at http://otca.info/portal/reuniao-de-presidentes .php?p=otca (last visited Nov. 20, 2016).

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strengthen cooperation between the member countries. However, it was not an ordinary sphere of the act’s institutional structure. It was created through practice and there are no mandatory meetings. The I Meeting of the Presidents of Amazon States was held on May 6, 1989, in Manaus, Brazil.124 The Meeting of the Presidents marks the few occasions when the president of Amazon countries met, and often results in particularly relevant developments of the institution. It works as a high-level political encounter, which reinforces commitments, often reshifting the purpose of the organization. The Meeting of Ministers of Foreign Affairs (mmfa) Considering the Meeting of the Heads of State is not within the official framework of the act, the Meeting of Ministers of Foreign Affairs (mmfa) is the maximum body within its official institutional framework.125 It functions as the normative and senior ministerial and decision-making level.126 It is ­incumbent upon the mmfa to establish the basic guidelines for common policy, evaluate the progress of the Amazonian cooperation process, and make relevant decisions that guide the implementation of the treaty.127 Each country’s delegation is presided by the Minister of Foreign Affairs, and is composed by delegates, or other staff members.128 There are ordinary and extraordinary meetings of the mmfa.129 The treaty’s language was limited, and lacked proper guidance as to the frequency of meetings. It required a first mmfa within two years of the treaty entering into force.130 Additional meetings were to be scheduled as opportune or advisable.131 The gap was addressed by the mmfa’s regulation, which required biennial ordinary meetings.132 Extraordinary meetings can be held at the initiative of any member state, with the support of four additional members,133 or by recommendation of the acc.134 Only two meetings were held in the first phase of development: one in 1980 and another 1983.135

124 125 126 127 128 129 130 131 132 133 134 135

124 125 126 127 128 129 130 131 132 133 134 135

See the historical development of the second phase in the following chapter. mmfa Regulation, art. 1. act, art. xx. act, art. ii; mmfa Regulation, art. 2. mmfa Regulation, art. 3. mmfa Regulation, art. 4. act, art. xxii(2). act, art. xx. mmfa Regulation, art. 4. act, art. xx(1). mmfa Regulation, art 3. mmfa Regulation, art 3. See the historical development of the first phase below.

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Before any plenary meeting, a preparatory gathering occurs. It establishes the plenary’s president, designates the secretary general and the agenda, constitutes commissions, institutes deadlines for presenting proposals, and determines the approximate period of sessions.136 The meetings are hosted by ­rotation of countries in alphabetical order.137 As a result of the mmfa a declaration and specific resolutions are adopted once a unanimous vote is reached.138 mmfa plenary sessions are public. Meetings held by commissions and subcommissions are private, and can be attended by delegations, secretarial staff and invited observers only.139 Observers can be invited to participate. These include interested states such as French Guyana, international, regional, and subregional organizations, as well as their specialized bodies.140 Common ­observers include the United Nations and its specialized agencies, the Organization of American States (oas), the Association of Latin American Integration, and the Latin American Economic System.141 The Amazon Cooperation Council (acc) The Amazon Cooperation Council (acc) is the second highest body within the act’s hierarchy.142 It is comprised of high-level diplomatic representatives of the member countries.143 It exercises authority between the policies set forth by the mmfa and the policies executed by the pncs. Since it has both normative and executive capability, it ensures coordination and cooperation among the pncs.144 The duties of the acc include: (i) ensuring compliance with the treaty’s ­objectives; (ii) carrying out the decisions made at the mmfa; (iii) recommending extraordinary mmfa and preparing the corresponding agenda; (iv) analyzing projects and initiatives proposed by member states, as well as bilateral or multilateral studies or plans, and assessing their progress; and evaluating the fulfillment of bilateral or multilateral projects.145 The acc also provides for its selfregulation, and receives or requests reports from the pts on specific issues.146 136 137 138 139 140 141 142 143 144 145 146

136 137 138 139 140 141 142 143 144 145 146

David França Ribeiro de Carvalho, supra note 8, at 126. act, art. xx(2). act, art. xxv. mmfa Regulation, art. 13. mmfa Regulation, art. 7. Beatriz Garcia, supra note 11, at 102, note 128. Id., at 103. act, art. xxi. David França Ribeiro de Carvalho, supra note 8, at 78. act, art. xxi, 1–6. Regulations for the Amazon Cooperation Council (acc), art. 2. Regulations for the Amazon Cooperation Council (acc), art. 2.

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The acc holds ordinary and extraordinary meetings convened by the pts.147 Ordinary meetings are held annually, although the requirement has rarely been followed.148 During the first period, the acc met three times: in 1983, 1986, and 1988.149 Extraordinary meetings are held at the request of any member country, with the support of at least four additional members.150 Preparatory meetings may be held prior to the acc meetings, in order to discuss preliminary and bureaucratic issues regarding the theme of the assembly.151 Resolutions shall be adopted as a result of the meetings.152 Participation of member countries at acc meetings is mandatory, and decisions are unanimous.153 There is an alphabetical rotation between countries to chair the ­meetings,154 and the head of the delegation of the host country chairs the session.155 Guests, either governmental, international, regional, ­non-­governmental ­organizations or experts may be invited to attend as observers through the suggestion of the member countries.156 If necessary, working groups may be established to develop a more thorough discussion of specific issues as required by the acc.157 The Pro Tempore Secretariat (pts) The act’s institutional structure was simple and flexible, and included a temporary Secretariat as its supporting body. The Pro Tempore Secretariat (pts) had administrative functions, and was responsible for the documentation to be sent to member countries, as well as coordination of the acc meetings. Due to the absence of a permanent headquarters, it rotated between parties, following an alphabetical order. The order established the country where

147 148 149 150 151 152 153 154 155 156 157

147 This requirement has not been complied with, and meetings have been held mostly every two years. See Beatriz Garcia, supra note 11, at 104–105; David França Ribeiro de Carvalho, supra note 8, at 128. 148 See Daniel de Campos Antiquera, A Amazônia e a política externa brasileira: análise do Tratado de Cooperação Amazônica (tca) e sua transformação em organização internacional (1978–2002), 73 (unpublished Masters thesis, unicamp/ifch, 2006). 149 See the historical development of the first phase below. 150 Regulations for the Amazon Cooperation Council (acc), art. 3. act, art. xxi(1). 151 Regulations for the Amazon Cooperation Council (acc), art. 22. 152 Regulations for the Amazon Cooperation Council (acc), art. 4. See Beatriz Garcia, supra note 11, at 104. 153 Regulations for the Amazon Cooperation Council (acc), art. 18; 20. act, art. xxv. 154 Regulations for the Amazon Cooperation Council (acc), art. 3. act, art. xxi(2). 155 Regulations for the Amazon Cooperation Council (acc), art. 8. 156 Regulations for the Amazon Cooperation Council (acc), art. 7. 157 Regulations for the Amazon Cooperation Council (acc), art. 11–13.

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the next acc ordinary meeting was scheduled to occur. Initially each country ­hosted the pts for a one-year period, later extended to three years.158 The chosen state’s Ministry of Foreign Affairs served as the treaty’s secretariat.159 Although all member countries were supposed to host the secretariat at least once, Guyana and Suriname did not.160 During the first phase, the pts was hosted by Peru, Bolivia, Brazil, and Colombia. The Permanent National Commissions (pnc) Permanent National Commissions (pncs) are the highest political, advisory, consultative, and coordinating bodies of the Amazon region at the national level. Created by the member countries in their territories, the pncs are responsible for ensuring proper national application of the act. As such, they carry out decisions and agreements adopted by the mmfa and the acc, coordinate policies involving sustainable development in the Amazon region, and suggest relevant policy measures.161 Presided by the Foreign Affairs Ministries, the pncs are inter-ministerial. They ensure a crosscutting approach to activities through the participation of different governmental bodies directly or indirectly responsible for executing programs or projects in the Amazon River Basin. When considered necessary, the pncs can draw on participation from other state and national agencies, academia, nongovernmental organizations, and the private sector. Due to the absence of a central and permanent body that promotes intergovernmental coordination in the act, or a centralized secretariat, the ­majority of the activities promoted within the act’s framework are to be developed by the pncs.162 In practice, however, it took countries many years to establish them. After created, these have operated on a limited scale.163 One of the main reasons for the limited operation is the lack of a permanent staff.

158 159 160 161 162 163

158 act, art. xxii. res/vi cca-3, res/v mre-tca/3, approved at the v mmfa (2002). 159 act, art. xxii. 160 David França Ribeiro de Carvalho, supra note 8, at 130. The Pro-Tempore Secretariat was located in: Peru (Oct. 1980–Jul. 1983); Bolivia (Jul. 1983–Sep. 1986); Brazil (Sep. 1986–Mar. 1988); Colômbia (Mar. 1988–May 1990); Ecuador (May 1990–Jul. 1993); Peru (Jul. 1993 –Mar. 1997); Venezuela (Mar. 1997–Apr. 2000); Bolivia (Apr. 2000–Nov. 2002); Brazil (Nov. 2002–2003). 161 act, art. xxiii. 162 David França Ribeiro de Carvalho, supra note 8, at 130. 163 Beatriz Garcia, supra note 11, at 104.

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Initial Development of Cooperation

The first phase of Amazonian cooperation was perceived as a period of general inactivity. During those first eleven years, there was no immediate implementation of the treaty. The main challenge was the lack of institutional c­ apacity.164 While the act entered into force in 1980, there were no institutions to carry out its goals.165 The pts lacked structure. The pncs were not established, leaving a gap in national implementation. The acc and mmfa failed to meet at the required frequency. When they met, the results were mostly diplomatic, with few practical outcomes. act bodies still lacked regulation, and there was no guidance as to their goals and rules of procedure, except for the limited parameters included in the treaty’s language. In addition, member countries struggled to find a thematic focus for the treaty. After the goal of ensuring sovereignty was achieved, they were left with a broad range of regional issues that could be addressed, and little guidance from the treaty’s language as to the priorities. Finally, member countries struggled to find financial support to fund cooperation efforts. The meetings held during the first phase, and the developments from them can be summarized in table 12: Table 12

Phase 1: Summary of meetings and results within the act framework (1978–1989)166

Date

Meeting / Project / Event within ACT’s Framework

Jul. 3, 1978

Amazon Cooperation Treaty signed.

May 28, 1980

Amazon Cooperation Treaty entered into force.

Oct. 23–24, 1980

I Meeting of the Ministers of Foreign Affairs:167 Belém Declaration.168

164 165 166 167 168

164 See Antonio Quiroga and Jacques Marcovitch, supra note 13, at 1–2; 14–15. 165 Id., at 12. 166 Please note that this is not an exhaustive list of the meetings held under the act/acto umbrella, or of the issues discussed in them. It is meant to illustrate the development of the institution and highlight some aspects for the purposes of this book. For example, since the acc holds annual ordinary meetings, and occasional extraordinary meetings, only the most relevant are mentioned here. 167 act, I Reunión de los Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, Acta Final, Belém, Brazil (Oct. 24, 1980). 168 act, Declaración de Belém (Oct., 23/24, 1980).

120 Table 12

chapter 5 Phase 1: Summary of meetings and results within the act’s framework ­ (1978–1989) (cont.)

Date

Meeting / Project / Event within ACT’s Framework • Commission to develop bylaws for the mmfa.169 Next steps: • a cc to set up an investment fund and propose sources of funding;170 to develop a study about the fluvial system171 and the potential of the Amazon River for transportation, communication, energy,172 and tourism;173 • Develop a broad joint research program on science and technology.

Oct. 1980–Jul. 1983

Pro Tempore Secretariat established in Peru.

Jul. 1983–Sep. 1986

Pro Tempore Secretariat established in Bolivia.

Dec. 7–8, 1983

I meeting of the Amazon Cooperation Council:174 • Four working groups formed:175 i) technical cooperation on regional development; ii) scientific and technological cooperation; iii) transport and communications; iv) investment fund. Note: Forests or environmental preservation not in the agenda at this point. Next steps: countries to structure their Permanent National Commissions.176 pts to develop a draft regulation for the acc.177

169 170 171 172 173 174 175 176 177

169 170 171 172 173 174

act, i mmfa, Acta Final, supra note 167, Primera Sesión Plenária. act, i mmfa, Declaración de Belém, supra note 168, paragraph x. Id., paragraph xi. Id., paragraph xii and xiii. Id., paragraph xiv. I Reunión del Consejo de Cooperación Amazónica, Acta Final (Peru, item 1. 175 I Reunión del Consejo de Cooperación Amazónica, Acta Final (Peru, item 17. 176 I Reunión del Consejo de Cooperación Amazónica, Acta Final (Peru, item 22, i. 177 I Reunión del Consejo de Cooperación Amazónica, Acta Final (Peru, item 22, J.

July 5–8, 1983), July 5–8, 1983), July 5–8, 1983), July 5–8, 1983),

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Meeting / Project / Event within ACT’s Framework ii Meeting of the Ministers of Foreign Affairs:178 Santiago de Cali Declaration.179 General concern that there were still no achievements, no follow through to projects, slow decisions, lack of a ­financial mechanism and questionable efficacy of cooperating actions among members.180

Sep. 1986–Mar. 1988

Pro Tempore Secretariat established in Brazil.

Sep. 25–26, 1986

ii meeting of the Amazon Cooperation Council:181 acc regulation approved.182

Mar. 16–18, 1988

iii meeting of the Amazon Cooperation Council:183 For the first time, there was an agenda, as well as documents to support it, prepared by the Pro Tempore Secretariat, then administered by Brazil.184 Proposals and decisions: • Project for the regulation of the fluvial navigation on Amazon rivers;185 • Create a working group on environmental issues, organize a seminar on environmental policy for the Amazon region;186 • Members urged to reconsider a botanic project with funds from undp;187 • Special Commission for Health was created, with the immediate approval of its regulation.

178 179 180 181 182 183 184 185 186 187

178 ii Reunión de Cancilleres del Tratado de Cooperación Amazonica, held in Santiago de Cali, Dec. 7–8, 1983, Acta Final. 179 ii mmfa, Declaración de Santiago de Cali (Dec. 8, 1983). 180 Antonio Quiroga and Jacques Marcovitch, supra note 13, at 17. 181 ii Reunión del Consejo de Cooperación Amazónica, Acta Final (La Paz, September 25–26, 1986), item 1. 182 Id., para. 18. 183 iii Reunión del Consejo de Cooperación Amazónica, Acta Final (Brasília, March 16–18, 1988). 184 Id.,, item i. 185 Id.,, item iii, 1. 186 Id.,, item iii, 5. 187 Id.,, item iii, 7.

122 Table 12

chapter 5 Phase 1: Summary of meetings and results within the act’s framework (­ 1978–1989) (cont.)

Date

Meeting / Project / Event within ACT’s Framework • Cooperation between Amazonian universities:188 unamaz (Associacíon de Universidades Amazónicas) created.189

Mar. 1988–May 1990

Pro Tempore Secretariat established in Colombia.

Mar. 6–7, 1989

iii Meeting of the Ministers of Foreign Affairs:190 Declaration of Quito:191 pts to establish an ad hoc group to promote institutional strengthening: i) a project for a regulation of the functions of the Secretariat, including management and project proposals; ii) a project to institutionally strengthen the Secretariat; iii) a project to identify financial mechanisms from outside sources; iv) a study on the convenience of creating a ­permanent secretariat; v) a study on the convenience of establishing a fund for the Amazon. undp offered technical support; the iadb offered technical and financial cooperation. Projects discussed: Amazon Botanic;192 the Basic Geographical Charter193 and the Taming of the Promising Amazon Crops project,194 in accordance with the production systems of the region.195

188 189 190 191 192 193 194 195

188 Id.,, item iii, 4. 189 unamaz (Association of Amazonian Universities) is a multilateral cooperation agency with educational and scientific goals, achieved through the cooperation of universities and research institutions in Amazon countries. 190 iii Reunión de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Quito, Mar. 6–8, 1983, Acta Final. 191 act, Declaración de San Francisco de Quito (Mar. 1989). 192 In the original: Proyecto de Botánica Amazónica. 193 In the original: Carta Geográfica Básica. 194 In the original: Domesticación de Cultivos Promisórios de la Amazonia. 195 Id., item v, Ciencia y Tecnología, based on the work developed by the scha and recommendations in the First Meeting, held in Bogotá on Nov. 8–10, 1988.

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Meeting / Project / Event within ACT’s Framework Plurinational Amazon Cooperation Project and Inventory of Natural Resources (includes establishing and coordinating a system for monitoring the occupation and land use process, as well as management of natural forests).196 Inventory of Surface Water in the Amazon. unamaz highlighted: PROGRAMAZ to be developed.197

Institutional Challenges In order to guarantee a simpler, cheaper, and less bureaucratic structure, the pts lacked a permanent configuration, and shifted between member countries every two or three year – although it originally envisioned an annual rotation, which was never truly enforced.198 During the first period, the pts shifted between Peru, Bolivia, Brazil, and Colombia.199 The instability ensured a lack of continuity, which was even harder to overcome in the first development period. Information and know-how was lost every time the pts shifted location and staff. During the few years in which the pts remained in one country, little was accomplished. The change of location for the Secretariat was generally agreed on at the acc meeting, which marked the transition. One of the pts’ main functions was to coordinate the pncs in each country as a national link to the act. However, countries were slow to launch them, which made it difficult to enforce concrete actions at the local level.200 Even if the act agreed on specific follow-up actions – which rarely happened during the first phase –, countries mostly did not carry them out. In 1983, Colombia asked governments to prioritize the commissions. However, the development of Amazonian institutions within each country was inconsistent, and changed according to the political priorities, which themselves constantly shifted at that point.201 196 197 198 199 200 201

196 Id., item x, Proyecto Plurinacional de Cooperación Amazónica e inventário de los recursos naturales. 197 Programa Interuniversitario de Cooperación Amazónica. 198 The Pro Tempore Secretariat was led by Peru, Bolivia, Brazil and Colombia in the 1980s. 199 See Table  12: Phase 1: Summary of Meetings and Results within the act’s framework (1978–1989). 200 Indeed, Brazil, the country that pressured for the treaty, only established its pnc on May 15, 2003, more than twenty years after the treaty entered into force. See Antonio Quiroga and Jacques Marcovitch, supra note 13, at 13. 201 Id., at 15.

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Indeed, member countries were facing important internal issues due to the end of their military regimes and the transition into democratic societies. ­National concerns took preference, with political and constitutional reforms that hindered the advancement of regional projects. The development of their own national institutions and the changes of government prevented them from prioritizing Amazonia. Brazil, as the leader of regional cooperation, focused on the La Plata Basin Treaty and its strategic relationship with Argentina.202 There was no Amazonian identity, and each member set different weights to the significance of the region internally. At that point, governments were basically the only stakeholders pushing initiatives forward, as civil society organizations were just starting to develop.203 Once the main political goal of creating the act was achieved, along with the message to third parties that Amazon countries were handling their issues internally, it was no longer a priority. Moreover, the global economic crisis in the 1980s largely impacted the region. The lack of public resources directly obstructed the treaty, as there was no financial mechanism that gave it a reliable source of income. As can be observed from the minutes of the meetings held during this period, countries were constantly looking for alternative sources of funding, especially from international organizations. Finally, the acc and the mmfa, the main bodies within the act’s framework, did not meet as frequently, giving cooperation a slow pace. The acc was supposed to meet annually. However, it only met on three occasions during the first phase – 1983, 1986, and 1988. An important outcome was the approval of its regulation, which gave the body some structure. The mmfa was required to meet every two years. Likewise, they met on three occasions – 1980, 1984, and 1988.204 The meetings were mainly reduced to discussions about general goals and principles with limited actions, but a few important outcomes related to the substantive focus of the act were reached.205 At the iii mmfa, through the Declaration of Quito, the emphasis of the act was redirected to the destruction of the environment and the violations of human rights of indigenous communities. Indeed, for the first time, the Ministers properly addressed environmental policy as a major goal and focus of the act’s activities.206 202 203 204 205 206

202 Rodolfo Ilário da Silva, Multilateralismo Amazônico, entre Êxitos Geopolíticos in bjir, Marília, vol. 2, No. 3, 539 (Set/Dez, 2013). 203 Id. 204 Id. 205 See following section. 206 Id., para. ii (Política Ambiental).

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Thematic Focus of the act At the i mmfa (1980), member countries adopted the Declaration of Belém, and ratified two important political positions. Amazon states acknowledged the undividable nature of development and environmental preservation, and their exclusive responsibility for both.207 While the countries’ responsibility was an integral part of the language of the act, it was the first time that the link between development and preservation was directly conceded. The realization followed a trend in International Environmental Law, and replicated a plight of developing countries in global negotiations. The roles of countries and the act within this new perspective were also defined: while each country is individually responsible for their share of the forest, it is incumbent upon the act to create spheres of regional cooperation, including in terms of information sharing.208 Member countries brought attention to the communities: as a priority, cooperation should concentrate on the population and their standard of living.209 Countries should plan for development according to their own singularities, by learning through positive regional lessons, shared through the act.210 Specific paths to achieve environmental protection were highlighted: create national parks and other protected areas,211 eliminate the illegal trade of endangered wildlife and animal skin,212 and promote the rational use of tropical forests.213 While forests had been barely mentioned in the act’s original language, the mmfa showed a focus on forest protection and environmental conservation in general, moving towards the renewed focus, which later defined its work. In addition, member countries reinforced that the use of natural resources belong exclusively to Amazon countries, and initiatives that question their sovereignty are unacceptable.214 Indeed, countries reinstated the use of natural resources as a sovereign right, without any limitation in addition to those established by the act or International Law.215 The treaty was once again used as a mechanism to ensure mutual cooperation for the purpose of

207 208 209 210 211 212 213 214 215

207 act, i mmfa, Declaración de Belém (Oct., 23/24, 1980), preamble. See Antonio Quiroga and Jacques Marcovitch, supra note 13, at 12. 208 act, Declaración de Belém, para. i. 209 act, Declaración de Belém, para. ii. 210 act, Declaración de Belém, para. v; ix. 211 act, Declaración de Belém, para. vi. 212 act, Declaración de Belém, para. vii. 213 act, Declaración de Belém, para. viii. 214 act, Declaración de Belém, para. viii. See Antonio Quiroga and Jacques Marcovitch, supra note 13, at 12. 215 act, Declaración de Belém, para. iv.

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r­ egional ­protection: cooperation shall reinforce the full use of those rights and ­resources, as well as ensure the development of the territories within the Amazon region.216 Special Commissions for the act As the member countries redirected the act towards a thematic focus, special commissions were created. Indeed, one of the few practical institutional developments in the first period was the establishment of special commissions, which oriented projects and programs of the institution. These were established at the operative level to study and promote specific matters related to the treaty.217 Special Commissions work with the acc, the pts, and relevant national institutions in their sectors of interest. They are subordinate to the mmfa and the acc with regards to the execution of specific measures.218 Since they do not require participation of all member countries, the body is more efficient, with the potential to reach concrete results.219 Three acc meetings ignited discussions on potential projects and the basic institutional structure of the act. Four special commissions were created: cecta/scsta (Special Commission for Science and Technology of the Amazon), cesam/scha (Special Commission for Health of the Amazon), ceaia/sciaa (Special Commission for Indigenous Affairs of the Amazon), and cemaa/scea (Special Commission for the Environment of the Amazon). Within this context, the phase promoted both renewed regional goals, as well as a whole new cooperation process within Latin America.220 The Special Commission on Environment for the Amazon (scea/cemaa) was created by the iii mmfa through the Declaration of Quito.221 The scea was established to (i) exercise member countries’ sovereign right over their respective territories within the Amazon, (ii) investigate the actual and potential natural risks within the region, (iii) prevent the deterioration of natural resources, especially deforestation and soil erosion, (iv) study common methodologies of environmental impact assessment, (v) develop programs and projects, (vi) examine cooperation proposals related to the environment, and 216 217 218 219 220 221

216 act, Declaración de Belém, para. iv. 217 act, art. xxiv. 218 David França Ribeiro de Carvalho, supra note 8, at 132. See also Adherbal Meira Mattos, Pacto Amazônico – Cooperação e Integração in 53 Revista Brasileira de Estudos Políticos 117 (1981). 219 Id., at 132. 220 act, Declaración de Belém. 221 act, iii mmfa, Declaración de San Francisco de Quito (Mar. 1989).

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(vii) analyze their compatibility with the environmental legislation. scea is a permanent body created to promote environmental conservation through joint actions within the Amazon region. It is responsible for analyzing compatibilities between the environmental law of Amazon countries, and exchanging information regarding national programs for environmental protection.222 It has established criteria to prioritize projects and evaluate their own activities, in addition to analyzing human and financial capacity to put projects into practice.223 scea had its first meeting at the end of 1989.224 On that occasion its regulation was approved, along with a recommendation to the acc to coordinate the position of the act and member countries on multilateral forums for the environment.225 Finally, scea approved a resolution on protected areas in Amazonia as the result of the First International Seminar on Protected Areas of the Amazon Basin.226 The resolution included recommendations for Amazon countries to better structure their national system of protected areas, and empower the specific agencies in charge of protected areas with a higher hierarchical level. In addition, it advised for joint efforts between protected areas agencies, as well as bi-national or tri-national parks on the border of Amazon countries. Specifically, it suggested the creation of a Network of National Parks and Protected Areas for Latin America and the Caribbean, as well as a sub-network for Amazonia, as a mechanism to promote, organize, and logistically support the area, through the backing of fao and other international organizations. The commission also suggested an exercise to harmonize the laws regarding natural resources, as well as connected matters.227 In the iii mmfa, member countries also highlighted the regional goal of protection of indigenous rights,228 later creating the Special Commission on Indigenous Affairs for the Amazon (sciaa / ceaia).229 sciaa was created due to the 222 223 224 225 226 227 228 229

222 David França Ribeiro de Carvalho, supra note 8, at 130. acto, 2002, p. 331. 223 Beatriz Garcia, supra note 11, at 107. 224 act, Pro Tempore Secretariat, Compilation of Projects from cemaa from 1989–1995 (Dec. 1995), available http://otca.pagina-oficial.com/assets/documents/20160704/658187c77044 0074bf34c5f48d35036f.pdf. 225 act, Informe de la Primera Reunion de la Comision Especial del Medio Ambiente de la Amazonia (cemaa) (Nov. 22–24, 1989), item 15. Id., at 4–13. 226 Id., at 31–33 (Annex vi: Resolución Sobre Areas Protegidas en la Cuenca del Amazonas). 227 Id. 228 act, iii mmfa, Declaración de San Francisco de Quito (Mar. 1989), para. iii (Cooperación para los Asuntos Indígenas de la Amazonía). 229 Based on recommendations by the First Seminar on Indigenous Affairs in the Amazon, conducted in Bogotá in October 25–28, 1988.

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Indigenous Affairs (ceaia/sciaa) Special Commissions Science & Technology (cecta/scsta) Environment (cemaa/scea)

Figure 2 Special Commissions (ad hoc) created during Phase 1.

need to promote social-economic development of the human resources within the Amazon region, as well as to adopt measures for preservation of ethnological and archeological heritage.230 sciaa has the specific mandate to (i)  promote cooperation on indigenous affairs, (ii) strenghten the ethnic identity and the conservation of the historic cultural heritage, (iii) stimulate the exchange of information for mutual knowledge on indigenous population in the region, (iv) ensure effective participation of indigenous peoples in the ­Amazon in ­indigenous affairs and any project that affects them or includes them; (vi) promote development programs; (vi) jointly develop research programs; (vii) coordinate with other Special Commissions of the act when necessary; and (viii) include traditional knowledge in regional development programs.231 The special commissions created during Phase 1 can be summarized in ­Figure 2. 5.9

Developments in International Forest Law

Unlike regional cooperation, International Environmental Law, and International Forest Law in particular, greatly evolved during the same period. ­Indeed, the World Conservation Strategy was published, showing a consensus on ­conservation efforts in the contect of global development. The un Charter for Nature was adopted as a guide for regulating international environmental development. The itto was established to regulate timber, showing a g­ rowing concern for tropical forests. Finally, the Brundtland Report was published, setting the stage for sustainable development and the 1992 Rio Conference.

230 231

230 act, art. xi. act, art. xiv. 231 David França Ribeiro de Carvalho, supra note 8, at 130.

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World Conservation Strategy In 1980, the iucn, the wwf and unep published the World Conservation Strategy.232 The Strategy represented a consensus of policy for conservation efforts in the context of global development,233 and provided an intellectual framework and practical guidance for conservation through global coordinated efforts.234 The main goal was to help advance sustainable development through the conservation of living resources.235 The Strategy lays out the contribution of conservation to human survival and sustainable development, identifies priority issues and how to address them, thus achieving its goals. Indeed, it balanced conservation and development, reflecting the main challenge faced by environmental policymakers.236 In doing so, the World Conservation Strategy memorialized a shift in the attitudes of environmentalists about the relationship between economic development and sound environmental management that was set in motion at the 1972 Stockholm Conference.237 In addition to reformulating iucn’s program,238 it considered projects in developing countries, establishing the Joint Environmental Service with the International Institute for Environment and Development (iied) to assist them in promoting environmentally sound ­land-use planning and environmental impact assessment.239 The Strategy framed the balance between conservation and sustainable development, 232 233 234 235 236 237 238 239

232 iucn, World Conservation Strategy: Living Resource Conservation for Sustainable ­Development, Doc. No. 10.2305/IUCN.CH.1980.9.en, available at https://portals.iucn.org/­ library/efiles/documents/WCs-004.pdf. 233 In addition to the three organizations that developed it, it was submitted to fao and unesco, which also made several contributions to the final document. 234 Roger D. Schwass, Introduction to Sustainable Development, World Conservation Strategy of the International Union for the Conservation of Nature and Natural Resources (iucn) in Encyclopedia of Life Support Strategies 150 (David V.J. Bell and Yuk-kuen Annie Cheung eds., 2009). 235 iucn, supra note 232, at iv. 236 Id. at 149. 237 John McCormick, The Origins of the World Conservation Strategy, 10(3) Environmental ­Review 177 (1986). (Explaining that this “change of emphasis” to the idea that “conservation of living resources is essential to sustainable development” was ushered in by the World Conservation Strategy.). 238 Id. at 185. (Noting remarks of the iucn’s then-Director General Lee Talbot that until the initiation of the World Conservation Strategy, “there really was no broadly accepted platform reflecting this change, no reference base for reconciling the classical requirements of nature protection and those of sustainable economic progress.”). 239 Id.

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­ ithin the context of the situation of the rural poor,240 as well as the shrinking w of tropical forests in terms of a decreased resource base for major industries.241 The Strategy is acknowledged as a major step towards the creation of institutions in furtherance of principles of sustainability and the foundation for the later Brundtland Commission.242 It specifically highlighted the relevance of tropical forests, including those in South America, as a renewable resource and a provider of ecosystem services, such as being a reservoir of genetic diversity, helping regenerate soils and protecting them from erosion, protecting areas downstream from floods and siltation, buffering variations in climate, and providing recreation and tourism. For the first time, forests, and tropical rainforests in particular, were acknowledged as a value on their own, as well as for the services they provide. In ­addition, a solution to the dangers of deforestation and forest degradation was suggested on a global scale: a network of protected areas to safeguard the genetic diversity of tropical forests.243 The western Amazon basin was highlighted as a priority area for the establishment of protected areas.244 In order to ensure that the demand for tropical forest products did not exceed the capacity of countries to supply them non-destructively, cooperation of developed countries was encouraged.245 un World Charter for Nature The un General Assembly approved the World Charter for Nature in 1982.246 As a guide for regulating international environmental development, the ­charter was sponsored by thirty-four developing nations.247 It was based on an

240 241 242 243 244 245 246 247

240 iucn, supra note 232, at 18, vi (Stating “For the 500 million people who are malnourished, or the 1500 million people whose only fuel is wood, dung, or crop wastes … conservation is the only thing between them and at best abject misery …”). 241 Id. at vi. For additional explication of this circulating critique applied to the World Conservation Strategy, see Cristina Adams et al., eds., Amazon Peasant Societies in a Changing Environment: Political Ecology, Invisibility, and Modernity in the Rainforest 103 (2008) (Describing the “[m]odeling of conservation programs in accordance with the logics of development and market”). 242 David V.J. Bell and Yuk-kuen Annie Cheung, supra note 234, at 185. 243 iucn, World Conservation Strategy, supra note 220, at 54, para. 1 and Ch. 16, generally. 244 Id. at para. 4. 245 Id. at para. 6. 246 World Charter for Nature, g.a. Res. 7, 36 u.n. gaor Supp. (No. 51) at 17, u.n. Doc. A/51 (1982), [hereinafter cited as Charter for Nature], available at http://www.un.org/documents/ga/res/37/a37r007.htm. 247 Other co-sponsors included Benin, Burundi, Cape Verde, the Central African Republic, Chad, Comoros, Costa Rica, Djibouti, Egypt, Equatorial Guinea, Gabon, Gambia, Guinea,

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underlying premise: the global environment needs substantive and procedural ­protection from the adverse impacts of social and economic development. While stating unenforceable general principles, the Charter established the baseline to persuade developing countries to adopt environmentally sound development strategies.248 Indeed, the Charter seems to be the birthplace of many topics that are just now evolving. Linking peace and nature,249 it requires the protection of the environment from degradation caused by warfare or other hostile activities.250 While human rights in times of conflict have for long been in the agenda of international law, environmental protection in the same scenario has just recently been a focus.251 The document also calls for respect of nature,252 a precursor to the nature’s rights established only recently by Ecuador and Bolivia. In addition, requirements to consider the long-term capacity of natural systems to sustain human use in economic planning and development processes253 suggest an environmental impact assessment of both short and longterm projects, which can potentially affect nature.254 The Charter was specifically relevant as an initiative of developing countries. Brazil, however, on behalf of the Amazonian countries, expressed concerns over its aspirational tone and objected several provisions.255 Despite those, the 248 249 250 251 252 253 254 255

248

249 250 251

252 253 254 255

Guinea-Bissau, Haiti, the Ivory Coast, Kenya, Mali, Malta, Mauritania, Morocco, Mozambique, Niger, Pakistan, Rwanda, Senegal, Singapore, Somalia, Swaziland, Thailand, Togo, the United Republic of Cameroon, Upper Volta, and Zaire, Belgium and Yugoslavia. Harold W. Wood Jr., The United Nations World Charter for Nature: The Developing Nations’ Initiative to Establish Protections for the Environment, 12 Ecology L.Q. (1985), available at http://scholarship.law.berkeley.edu/elq/vol12/iss4/9. Charter for Nature, supra note 246, preamble. Id., art. 5. For example, the protection of the environment in relation to armed conflicts was included as a topic in the un International Law Commission in 2013, followed by a preliminary report of the Special Rapporteur, Ms. Marie G. Jacobsson, in 2014 (A/CN.4/674), and a second report in 2015 (A/CN.4/685). Charter for Nature, supra note 246, art. 1. Id., art. 8. Id., art. 11. In particular, the countries objected the provision urging that constant efforts be made to increase knowledge of nature by scientific research and to disseminate such knowledge unimpeded by restrictions of any kind (art. 18). They were concerned about the use of environmental impact assessments, deemed “costly and often unnecessary” by Brazil, as well as the use the best available technology that minimize risks to nature or other adverse effects, that would make developing countries “indefinitely dependent upon the technologies of developed countries”. Finally, they were suspicious of environmental

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Charter passed by an absolute majority.256 While it does not establish issuespecific goals and did not focus much on forests, it had a symbolic meaning. It provided a philosophical and political framework to guide worldwide efforts at conservation.257 itto The International Tropical Timber Organization (itto) was established under the auspices of the United Nations in 1986 due to a growing concern for tropical forests. The first International Tropical Timber Agreement (itta), published in 1983, resulted from negotiations that started at the 1976 United Nations Conference on Trade and Development (unctad).258 Negotiations were spurred by a consensus that while deforestation rates in tropical countries were alarming, timber trade was the key to economic prosperity in the developing world. Conservation and trade were thus afforded equal importance.259 However this is a debatable claim, particularly as it applies to the early stages of the Agreement negotiations.260 In order to restructure the historical trade patterns of tropical timber, the itto modeled the new regulation on the success of the opec (the Organization of the Petroleum Exporting Countries).261 The process was further facilitated by unctad’s Integrated Program for Commodities (ipc), which focused on increasing economic benefits to countries by trading in commodities.262 256 257 258 259 260 261 262

256 257 258 259

260

261 262

­ rotection hindering development, and prejudicing growth. See Harold W. Wood Jr., supra p note 248, at 984–985. Only the United States voted against it. Id., at 990. itto, About itto: A Brief History, available at http://www.itto.int/about_itto/. Id. (Although the website explains the competing concerns thusly: “[b]y … the early 1980s … conservation had become at least as important a consideration in the negotiations as trade.”). See generally Anja Eikermann, Forests in International Law: Is There Really a need for an International Forest Convention? 78 (2015), (describing the genesis and proliferation of the itto and their Agreements, with conservation taking a backseat as incidental to economic and trade considerations. “As clearly stated by the itto itself in its ‘Possible Action 33’ document in 1990, conservation and protection are only ‘secondary objectives.’”). Eikermann also offers a comparision to Gerry Nagtzaam, The Making of International Environmental Treaties: Neoliberal and Constructivist Analyses of Normative Evolution at 43 (2009), [referencing the Tropical Timber Organization “Technical Series 5: itto Technical Guidelines for the Sustainable Management of Tropical Resources,” (Yokohama: 1990)]. Id., 73, citing Nagtazaam, at 23, 25. Id.

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The Agreement underwent several rounds of negotiations. Between 1976 and 1978, environmental concerns were not part of the discussion, which focused mostly on market economics of tropical timber exports.263 Forest management and environmental concerns entered the agenda eventually, and became more important after the renewals of the itta.264 As a commodity organization, the itto is mainly concerned with trade and industry. Sustainable management of natural resources is part of the structure only as it directly relates to the economic goals of sovereign nations and the tropical timber trade, but is not an intrinsic underlying principle.265 Indeed, sovereignty is a deeply embedded concept within the tropical ­timber-harvest conversation.266 It was used as an argument from Latin American countries to avoid signing off on the itta-1983; the agreement as written required financial contributions from each country without a guarantee of future financing.267 However, a lobbying effort by the iucn and iied, along with financial assistance from both industry and conservationists alike, brought forth the required signatures and moved the process forward.268 The ITTA went into effect in 1983. It was the first commodity agreement that incorporated a specific conservation component.269 This first version was in force until 1990, and was extended twice for a total of four additional years.270 In 1985, the Tropical Forestry Action Plan was proposed to tackle the deforestation crisis. The plan was developed jointly by the fao, development agencies, ngos, and representatives from more than 60 countries in which most tropical forests are found.271 The document included five action program 263 264 265 266 267 268 269 270

263 Id. 264 Id. at 77, discussing the post-Rio recognition of the Forest Principles, the unfccC, and the cbd in the Preamble of the itta 1994. 265 See Eikermann, supra note 260, at 78. 266 International Tropical Timber Agreement, 1983, (adopted Geneva, 18 November 1983, entered into force provisionally on 1 April 1985, in accordance with article 37(2)), 1393 uts Article 1, Objectives, Paragraph 1 (stating “…and bearing in mind the sovereignty of producing members over their natural resources …”). 267 Fred P. Gale, The Tropical Timber Trade Regime 83 (1998). 268 Id. at 86. 269 Philip E. Wilson, Jr., Barking Up The Right Tree: Proposals for Enhancing The Effectiveness of the International Tropical Timber Agreement, 10 Temp. Int’l & Comp. L.J. 229 at 232–33 (1996) (stating “ The Agreement’s potential as a tool for regulating the domestic timber production methods of itto members is somewhat limited by the Agreement’s recognition of the principle of a state’s sovereignty over natural resources within its borders.”). 270 Eikermann, supra note 260, at 74.

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proposals, including fuelwood and social forestry, conservation of forest ecosystems, and institution-building;272 and World-Bank-established proposed investment requirements and corresponding national investment profiles. The investment profiles were based on four specific fields, illustrating a clear-cut, manageable funding division between forestry in land use, forest-based industrial development, fuelwood and energy, and conservation of tropical forest ecosystems.273 The Plan helped develop or redevelop National Forestry Plans, and proposed doubling the figure spent on national initiatives to curb deforestation. While the initiative largely relies on the World Bank’s African forestry loan portfolio and the mapping of some of these forestlands, there is significant planning and funding recommendations for forest conservation in Brazil, Colombia, and Venezuela.274 The Plan was significant as a structural and financial tool, redefining and clearly delineating parameters for development agencies to consider when allotting loans. The Plan also induced progress regarding the balance between trade and conservation, taking into consideration national economic concerns and sovereignty issues. Development agencies coordinated their grants and loans in forestry for the first time.275 Together with the joint efforts of the 56 national governments involved, this document may be a potential early illustration of world recognition of the concerted effort the process of international forest conservation requires. Brundtland Report The Brundtland Report was published by the un World Commission on Environment and Development in 1987.276 The report was debated by the United Nations General Assembly in 1989, and influenced the United Nations ­Conference on Environment and Development in 1992. It follows in the steps of the itta-1983 and the World Conservation Strategy, addressing the balance 271 272 273 274 275 276

271 F. William Burley, The Tropical Forestry Action Plan: Recent Progress and New Initiatives in Biodiversity 404 (E.O. Wilson and Frances M. Peter, eds., 1988). 272 Id. 273 See Food and Agricultural Organization of the United Nations (fao), Committee on Forest Development in the Tropics, The Tropical Forestry Action Plan of 1985, available at http://www.ciesin.columbia.edu/docs/002-162/002-162.html. 274 Id. in Annex 2: Summary of Investment Requirements: Forest Management for Industrial Uses, Region/Country: Brazil. 275 Id. 276 World Commission on Environment and Development: Our Common Future (“Brundtland Report”).

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between industry concerns and conservationist interests. It addresses forests specifically in Principle 55, which states: Governments can stem the destruction of tropical forests and other reservoirs of biological diversity while developing them economically. Reforming forest revenue systems and concession terms could raise billions of dollars of additional revenues, promote more efficient, long-term forest resource use, and curtail deforestation.277 The report addresses the link between economics and ecology, explaining: Failure to manage the environment and sustain development threatens to overwhelm all countries. Environment and development are not separate challenges; they are inexorably linked. Development cannot subsist on a deteriorating environmental resources base; the environment ­cannot be protected when growth leaves out of account the costs of environmental destruction. These problems cannot be treated separately by fragmented institutions and policies. They are linked in a complex system of cause and effect.278 …environmental stressors and patterns of economic development are linked to one another … thus, economics and ecology must be completely integrated in decision making and lawmaking processes not just to protect the environment, but also to protect and promote development.279 It highlighted the orientation of environmental conservation and preservation strategies as backward-looking as opposed to prevention-focused,280 and called for a new strategy which does not simply address the symptoms of harm to the environment, but rather integrates production with resource conservation and enhancement.281 The Report noted national boundaries and the exercise of sovereign power in one nation affecting others’ abilities to do the same.282 Specifically, the transboundary issues presented by environmental damage, including defores277 278 279 280 281 282

277 278 279 280

Id. at 20 (discussed under Topic 3: Species and Ecosystems: Resources for Development). Id. at 36 (Part ii, Item 40). Id. at 33 (Part ii, Item 42). Id. at 38, Items 46–48. See also id. at 234 (Observing that “[t]he [Brundtland] negotiations in many ways are an expression of the idea that prevention is better than cure, ­forethought preferable to afterthought.”) 281 Id. at 38. 282 Id. at 14.

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tation, were highlighted. It reinforced the global impact from the disappearance of rainforests in the tropics, the loss of plant and animal species, and changes in rainfall patterns,283 and proposed strengthening national environmental protection agencies as a solution to resource management problems.284 In terms of the North–South divide, the Report considered the economic struggles faced by developing countries, particularly in Latin America and ­Africa, which rely on the export of primary products, due to the falling commodity prices.285 Contrary to what the report suggests, the observed global response was backwards, with a trend towards a decline in multilateralism and an assertion of national dominance.286 Within this context, it considered the international responsibility for development. The expressed principles of the Brundtland Report laid the foundation for the Rio Summit in 1992.287 As stated by the un, after its adoption, “we can no longer talk of economic and environmental policy in separate compartments.”288 5.10 Conclusion The signing of the 1978 Amazon Cooperation Treaty initiated a new phase of regional cooperation between Amazon countries. The act was the first cooperative mechanism that included all Amazon countries, and the signing of the treaty itself was an impressive endeavor. It was limited to the members’ territory in the Amazon River Basin, as well as other territories sharing the Amazon ecosystem or connectivity with it following a geographical, ­ecological, or economic focus. The act was based on five principles, namely: sovereignty – both in terms of national sovereignty and sovereignty over natural resources  –, conservation of natural resources, equality, cooperation and regional integration. Sovereignty was at the core of the treaty, especially as it reinforced member countries’ right to exploit national resources with few limitations. The treaty established limited rights and obligations for parties. Countries have the right to fully use natural resources within their territories and to navigate within the Amazon River Basin. In addition, members have the right 283 284 285 286 287 288

283 284 285 286 287

Id. at 27. Id. at 233. Id. at 35. Id. at 36. un Commission on Sustainable Development, Framing Sustainable Development, The Brundtland Report–20 Years On at 1 (2007). 288 Id.

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to be treated equally, with a consequent veto right in any decisions within the treaty’s framework. As a broad umbrella agreement, the treaty is often regarded as soft law. There is no specific and mandatory legal obligation, only guidance to the adoption of documents and mechanisms to further develop cooperation and strengthen the treaty’s structure. States acknowledge the responsibility to protect the environment, including promoting the rational use of water resources, to cooperate and maintain a permanent exchange of information. This weak structure has often been criticized by scholars, and the treaty is generally characterized as an agreement to agree, with limited practical reach. Due to these characteristics, and the weak institutional structure that was slowly established in the aftermath of the signing of the agreement, the first phase encompassed limited additional developments. While the treaty was signed in July 1978, it was only ratified by the totality of members two years later. The original structure of the act included the MMFA, as the highest body within its structure, responsible for decision-making, the ACC, as the normative and executive body that promotes cooperation, and the PTS, with administrative functions. At the national level, countries were supposed to establish PNC to ensure national implementation of the act, something they were extremely slow to comply with. Between 1980 and 1989, after the treaty entered into force, the mmfa and the acc met three times. The pts was headquartered in Peru, Bolivia, Brazil, and Colombia. Overall, the act was highly inefficient during the period, achieving limited results. The treaty’s inertia mainly derived from the lack of structure for the pts, due to its itinerant nature and lack of permanent staff, and the absence of pncs, which had yet to be established. In addition, member countries encountered challenges in finding financial support for cooperative efforts. Nonetheless, despite the appearance of inefficiency in the first phase, the treaty achieved three specific goals. First, it served the purpose for which it was created. Undeniably, it was effective in the sense that it achieved its geopolitical objective of ensuring there was no possibility of direct external intervention in the region.289 Since the purpose of the act was then mainly to ensure the member countries’ sovereignty, which was reaffirmed from the signing of the treaty alone, the first period is called the defensive and protectionist phase.290 Second, it strengthened the diplomatic relationship between countries. It was the first collaboration between all involved, and the first structure for partnerships to build on. Finally, some institutional developments were perceived. In addition to the establishment of the three main bodies envisioned in the 289 290

289 Id., at 537. 290 Antonio Quiroga and Jacques Marcovitch, supra note 13, at 1.

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t­ reaty, the creation of the Special Commissions of Amazonia provided a space for regional coordination and cooperation, which allowed for the development of common agendas. The period was also relevant for the development of International Environmental Law, and International Forest Law in particular. In 1980, the World Conservation Strategy was published as a consensus of policy on conservation efforts in the context of world development. The strategy combined the interests of proponents of conservation and development, and is acknowledged as a major step towards the Brundtland Report, published in 1987. Indeed, the Brundtland Report coined the term sustainable development, acknowledging forests specifically as reservoirs of biological diversity. It suggests a new approach that integrates development, production and conservation, the ­sustainable development approach. Finally, the un World Charter for Nature established the baseline to persuade developing countries to adopt environmentally sound development strategies. Indeed, the phase framed the initial outlines of compromise between environmental and industry interests, yielding the emergence of two binding international instruments governing tropical forests. The International Tropical Timber Organization (itto) was established under the auspices of the United Nations. It published the itta-1983, the first commodity agreement with a conservationist component. In addition, the Tropical Forestry Action Plan, developed by fao, was proposed to tackle the deforestation crisis in developing countries. While both were particularly relevant in regulating forests, neither the itta-1983 nor the fao instrument were conceived to promote conservation. Forest conservation was still largely seen as hindering development. As such, the period still marked the early stages of balancing the interests of both sides of economic development and conservation. Nonetheless, the international instruments, albeit non-enforceable, showed a trend towards a more conciliatory approach that advocated for environmental protection that is inherent in the concept of sustainable development, as it is a focus on the sources of environmental problems rather than the symptoms.291 The limited development of regional cooperation, however, could not continue. The need to boost the regional process thus led to the developments in the second phase of cooperation within the act’s framework.

291

291 Our Common Future, supra note 277, at 38.

chapter 6

Second Period of Cooperation within the Act’s Framework (1989–1994): Boost and Political Strengthening In sum, if at first international pressure led to a more defensive attitude by the Amazon countries, under the leadership of Brazil, and in the situation that opens in 1989, the response of the member countries is much more solid, legitimate and purposeful. The Amazon Cooperation Treaty had gone from being a body established under a predominantly d­ efensive logic to one in which willingness to play an active role in matters within its competence predominates.1

∵ The second period of cooperation within the Amazon Cooperation Treaty’s (ACT) framework started with the first Meeting of the Presidents in 1989 and continued until 1994.2 It saw few institutional developments, but was especially relevant in terms of the political commitments assumed by the Heads of State of Amazon countries. The Meeting of the Presidents broke the patter on inaction that characterized the first phase of development of the act, and strengthened cooperation at a higher political level.3 The second phase shall be understood in the context of the reestablished democracies in Latin 1 2 3

1 Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos para La Organización del Tratado de Cooperación Amazónica – otca 19 (otca, 2003, non-published paper). In the original: “En suma, si al principio la presión internacional motivó una actitud mas defensiva por parte de los países amazónicos, bajo el liderazgo de Brasil, en la coyunctura que se abre en 1989, la respuesta de los países miembros es mucho más sólida, legítima y propositiva. El Tratado de Cooperación Amazónico había transitado de ser un organismo constituido bajo una lógica predominantemente defensiva, a otra en la que predomina la voluntad de desempeñar un rol activo en los temas de su competencia.” 2 The categorization of the development of the organization in different phases was originally suggested by Antonio Quiroga and Jacques Marcovitch. Id., at 12. 3 Paulo Henrique Faria Nunes, A Organização do Tratado de Cooperação Amazônica: uma análise crítica das razões por trás da sua criação e evolução in 13(2) Revista de Direito Internacional 220–243, 232 (2016). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_007

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America and an intense regional dialogue that characterized the 1980s. Countries with a similar political system wanted to strengthen cooperation in order to help each other diplomatically, overcoming the traditional emphasis on national security.4 As such, the period saw a renewed political commitment for regional cooperation, and is called the political strengthening phase.5 The period was also extremely relevant for the development of International Environmental Law. In 1992, a major environmental conference organized by the United Nations convened in Rio de Janeiro, Brazil.6 The Rio Conference resulted in several important commitments, including the Rio Declaration, the un Framework Convention on Climate Change (unfccc), and the un Convention on Biological Diversity (cbd). Finally, the Forest Principles, albeit non-binding, provided an agenda for forest policies at the international level. Forest certification also arose under the umbrella of the itto as a response to the lack of binding commitments at the 1992 United Nations Conference on Environment and ­Development (unced). The international scenario provided an opportunity for Amazon countries to find a regional voice to promote at the global level. It was essential to designate a role for the act in the international arena. Due to the maturity of the global agenda on environment and sustainable development, environmental protection was the most obvious choice. In addition, the world experienced an expansion of environmental nonprofits and other civil society organizations, which became more vocal. Finally, the democratic consolidation and economic reforms boosted regional integration in Latin America through the MERCOSUR7 and the Andean Community.8,9 Through the strengthening of both regional organizations, the act was restricted to an environmental focus, which thus became its core.10 As a result, the act became a global actor in the environmental agenda, and the organization shifted from a defensive position 4 5 6 7 8 9 10

4 5 6 7 8 9 10

Id., at 19. Id., at 17. United Nations Conference on Environment and Development (1992), held in Rio de Janeiro, Brazil, between 3–14 June 1992, hereby “1992 Rio Conference”. Mercado Común del Sur, available at www.mercosur.int. Comunidad Andina, General Secretariat of the Community Andina, 2010, available at http://www.comunidadandina.org/. Antonio Quiroga and Jacques Marcovitch, supra note 1, at 19. Vinicius Modolo Teixeira and Rita de Cássia Martins de Souza Anselmo, Integração e­Conflitos na Região Amazônica in 2(1) Revista de Geopolítica, Ponta Grossa – pr 57, 61 (Jan./ Jun. 2011).

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to an active one.11 The 1989 Meeting of the Presidents, held to discuss the future of regional cooperation, ignited the change. This chapter analyzes the development of the act during the second phase of cooperation, as well as the developments of International Environmental Law, and International Forest Law, in particular, during the same period. The second phase can be summarized in Table 13. 6.1

1989 Manaus Declaration

The second period of cooperation started with a landmark gathering of the Heads of State of Amazon countries. On May 6, 1989, the first Meeting of the Presidents occurred in Manaus, Brazil. Although not envisioned in the ­original language of the act, it was created through practice as a forum for dialogue and consensus on common policies. It had the purpose of inducing a joint reflection on the common interests in the region, especially with regards to the future of cooperation for socio-economic development, the protection of

Table 13

Timeline of Phase 2 of cooperation within the act’s framework (1989–1994) 1992 Manaus Declaration

i Meeting of the Presidents 1989 Manaus Declaration

1989

1990

unced

unfccc

iv mmfa

Forest Principles

iv acc

1991

1992

Rio Declaration ii Meeting of the Presidents

11

11

1994

cbd

ceticam created cetura created

1993

v acc

Antonio Quiroga and Jacques Marcovitch, supra note 1, at 23.

Extraordinary acc

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natural and cultural heritage. As a result of the gathering, the 1989 Manaus Declaration was adopted.12 In the Manaus Declaration, countries affirmed the political will to strengthen the act through multilateral and bilateral relations in order to promote regional cooperation for sustainable development.13 In the short document, which consisted of only ten paragraphs, the presidents repeated some of the fundamental principles of the act: sovereignty, environmental conservation and cooperation.14 As such, the original commitments to the goals agreed upon a decade earlier were renewed. This time, however, the commitment was done at the presidential level.15 In addition, these commitments were reiterated within a framework of sustainable development, a concept that was broadly disseminated with the Brundtland Report.16 The presidents acknowledged the need to safeguard the Amazonian heritage by promoting rational use of resources so that present and future generations can mutually benefit from its legacy.17 The statement was a landmark in regional cooperation. It recognized the rights of present and future generations to the environment. In addition, it ensured the political will to preserve it and clarified – if any doubt remained – that environmental protection was at the core of the act.18 The presidents also reiterated the full respect for the rights of indigenous peoples in Amazonian territories to preserve their integrity, culture and ecological territories.19 By bringing the topic of indigenous populations, the presidents enhanced its value and created a new category among the act’s priorities.20 Forests, however, were not mentioned specifically. 12 13 14 15 16 17 18 19 20

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Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, Manaos, Brazil, May 6, 1989, available at http://otca.info/portal/admin/_upload/ presidentes/I_REUNION_PRESIDENTES_ESP.pdf. The declaration was based on recommendations by cemaa. See act, Pro Tempore Secretariat, Compilation of Projects from cemaa from 1989–1995 45 (Dec. 1995), available at http://otca.pagina-oficial.com/assets/ documents/20160704/658187c770440074bf34c5f48d35036f.pdf. Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 1 and 3. Paulo Henrique Faria Nunes, supra note 3, at 234. Antonio Quiroga and Jacques Marcovitch, supra note 1, at 18. Paulo Henrique Faria Nunes, supra note 3, at 234. Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 2. Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 6. Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 3. Antonio Quiroga and Jacques Marcovitch, supra note 1, at 20.

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While Amazon countries recognized an inherent duty to preserve the rainforest, it was necessary to also reinforce the need for economic prosperity. It is important to note that Latin American countries had a big foreign debt at the end of the 1980s. As such, it was necessary to emphasize the direct correlation between the current social and economic situation and environmental protection. Countries thus emphasized that the adoption of conservation measures is dependent upon the social and economic conditions of their population. Given the foreign debt crisis and the disparity between developed and developing countries, Amazon presidents assigned part of the responsibility for the conservation of Amazonia to developed countries, manifested through financial and technical cooperation.21 Within this context, their sovereign right over natural resources was highlighted.22 The meeting thus reinforced the basic opposing principles that constantly require balance: sovereign right to natural resources, economic growth, cooperation and environmental protection. The discussion was extremely relevant as the global issue of environmental responsibility and the clash between developed and developing countries arose at the international level and framed the issue as a challenge in regional cooperation.23 6.2

1992 Manaus Declaration

A second Meeting of the Presidents was held shortly after, prior to the 1992 United Nations Conference on Environmental and Human Development (unced).24 The Rio Conference was an opportunity for Amazon countries to show unity and positively impact the international debate on environmental protection. The meeting led to the 1992 Manaus Declaration, which included the Manaus Declaration on the unced and the Joint Position Document of Amazon Countries with a View to the unced.25 The gathering was a turning point for regional cooperation, as Amazon countries started to coordinate their regional views to present at the international level. Using the act as a mechanism, the presidents of Amazonia started a new 21 22 23 24 25

21 22 23 24 25

Paulo Henrique Faria Nunes, supra note 3, at 234. Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 4; 6. Antonio Quiroga and Jacques Marcovitch, supra note 1, at 21. 1992 Rio Conference, supra note 6. See more below. Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, Manaos, Brazil, Feb. 10–11, 1992, available at http://otca.info/portal/admin/_upload/ presidentes/II_REUNION_PRESIDENTES_ESP.pdf.

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trend in regional coordination. For the first time, they offered a joint position on issues such as climate change, biological diversity and ­biotechnology, forests, soil degradation, water and indigenous and local communities.26 Brazil’s leadership was paramount in this regard, especially as a host to the meeting in Rio.27 The Declaration reaffirmed and deepened some of the themes presented in the 1989 Manaus Declaration, namely sustainable development, right to use natural resources in pursuing progress and well-being, promotion of education and environmental consciousness, rights of indigenous peoples, and their participation in developing public policy, and the foreign debt.28 The heads of state also noted that the solution to environmental problems requires international cooperation, which should take place through increased financial resources, technology transfer, and greater commercial flows.29 Realizing their combined and stronger force, Amazon countries were able to require more responsibility from developed countries. They criticized the prevailing economic model and the role of developed countries, maintaining: 4. We reaffirm our conviction that the patterns of international production, consumption and distribution are at the roots of environmental problems in developing countries, especially the impairment of ecosystems and poverty to which most human beings have been pushed. 5. The greater responsibility of developed countries is admitted in the increasing environmental decay, a strong enough reason whereby no environmental controls or conditions may be imposed on developing countries. 6. In turn, underdevelopment is the main cause and a severe consequence of the environmental decay. Consequently, the solution to environmental problems is closely linked to a new attitude vis-à-vis international cooperation, which translates into the expansion of financial resources, a greater access to technologies, the boosting of business flows, and into measures aimed at solving the sovereign debt problem. 7. Emergency domestic measures shall be insufficient to combat poverty, unless supported by international cooperation, based on new principles. 26 27 28 29

26 27 28 29

Documento de Posición Conjunta de los Países Amazónicos con miras a la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo. Antonio Quiroga and Jacques Marcovitch, supra note 1, at 23. Paulo Henrique Faria Nunes, supra note 3, at 234. Beatriz Garcia, The Amazon from an international law perspective, 12 (2011).

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8. Overcoming current environmental problems calls for a conscious and determined effort by the States and individuals that shall transcend the simple logics of market forces.30 Indeed, Amazon countries highlighted the need for differentiated commitments.31 Developing countries should receive financial aid from developed countries to ensure sustainable development.32 The argument was based on the developed countries’ larger responsibility in the progressive deterioration of the environment, which prevented them from imposing restrictions on developing countries.33 The position influenced the adoption of the principle of common but differentiated responsibilities (cbdr) in the Rio Declaration and the unfccc.34 The establishment of the principle in the Rio Declaration thus became a “doctrinaire and conceptual framework for Amazonian countries, complementary with the first ideas of the treaty”.35 Member countries also influenced the outcomes of the international regulation of forests. Their joint position was based on three staples: (i) the particular situation of each country shall be taken into consideration; (ii) any regulation shall address all types of forests; and (iii) the economic, social, and environmental aspects of forests shall be considered jointly:

30 31 32 33 34 35

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35

iii. Forests. 1. International discussions on forests should take into account the fact that these ecosystems are part of territories under the jurisdiction of the States, wherein the latter fully exercise their sovereignty. The States are charged with the passing of legislation over such spaces and their usage, in the light of national priorities. 2. Any global consideration on forest resources must necessarily include, without any discrimination, all types of forests. 3. Besides the purely environmental aspects, the relevance of the forest as an economic, cultural and social space must absolutely be Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, ¶4–8. Documento de Posición Conjunta de los Países Amazónicos con miras a la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo, I(1). Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, ¶6. Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, ¶5. See Maria Antonia Tigre, Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader, 5 Transnational Environmental Law 401 (Cambridge University Press 2016). Antonio Quiroga and Jacques Marcovitch, supra note 1, at 23.

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acknowledged. Interaction among these elements creates an integral whole that is complex and wide. Forest policies are a major part in development strategies in our countries. 4. The economic dimension of the forest comprises the natural forest heritage, including mineral reserves, energy sources, tourist potential and human occupation opportunities for production activities. Social and cultural dimension consists in its ‘habitat’ status as human populations, whether native or not, that depend on the forest for their livelihoods and cultural development. 5. National efforts aimed at developing models for the sustainable use of forests must be completely supported by the international community. 6. The promotion of an economic use of the standing forest should be stressed, given its environmental, social, positive economic effects, but in order to do that it is absolutely necessary to have a timely and sufficient access to the market of the various forest products. 7. Forest management must match the imperative of its economic valuation for the benefit of national societies – in such a way as to ensure proper levels of social welfare for the communities directly dependent on them – with the right environmental protection. In this sense, developing countries evidence speci c needs that must be taken into account for the decisions made by the United Nations Conference on Environment and Development. 8. Economic activities in forest areas can be interfaced with the conservation and protection of natural and environmental resources. To such ends, countries should develop sustainable forest use strategies, and have access to markets for their products, that enable a sustainable development. 9. These strategies should aim at matching short-term actions with a longer-term perspective, echoing future opportunities. The concept of balance of costs and benefits should be extended, in order to include social equity, a greater technological efficiency of production processes, the conservation of natural resources, the respect for cultural values of local populations, and their knowledge of forest traditional uses.36 The strict position of Amazon countries contributed to the lack of consensus on a forest treaty at the 1992 Rio Conference. Member countries also presented 36

36

Documento de Posición Conjunta de los Países Amazónicos con miras a la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo, iii.

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a joint view on climate change,37 biodiversity and biotechnology,38 soil degradation,39 water resources,40 toxic and hazardous waste,41 strengthening of institutions,42 human settlements,43 indigenous and local populations and communities,44 financial resources,45 and technology transfer.46 6.3

1992 United Nations Conference on Environment and Development (unced), Rio de Janeiro

The 1992 unced was held in Rio de Janeiro, Brazil, as a follow-up of the 1972 Stockholm Conference. The choice of location was significant, especially due to the deforestation of Amazonia, and helped raise attention to the role of ­Amazon countries in the global environment, raising the profile of the act. Often called the Earth Summit, the meeting was unprecedented in terms of size and scope of concerns. The goal was to rethink economic development and halt the destruction of natural resources. It resulted in several approved ­documents, including the Rio Declaration on Environment and ­Development (Rio Declaration), the United Nations Convention of Biological Diversity (cbd), the United Nations Framework Convention on Climate Change ­(unfccc), the Agenda 21, and the Statement of Forest Principles. Forest Negotiations One of the main discussions during the unced focused on the different positions of developed and developing countries regarding the protection of the world’s forests. Northern industrialized countries pushed for an international forest convention.47 A group led by Malaysia and India strongly opposed the proposal, fearing an international treaty would jeopardize development,

37 38 39 40 41 42 43 44 45 46 47

37 38 39 40 41 42 43 44 45 46 47

Id., i. Id., ii. Id., iv. Id., v. Id., vi. Id., vii. Id., viii. Id., ix. Id., x. Id., xi. Constance L. McDermott et al., International Forest Policy, The Instruments, Agreements, and Processes that Shape It 31 (2007), available at http://www.un.org/esa/forests/wp -content/uploads/2015/06/Intl_Forest_Policy_instruments_agreements.pdf.

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affecting the timber industry.48 Developing countries agreed on a stronger financial burden for forest preservation by developed countries. These, in turn, didn’t want the extra responsibility. Overall, there was a general suspicion of a hidden agenda for the internationalization of resources under their sovereignty through the use of concepts such as common good or common concern of humanity.49 Indeed, forests were constantly referred to as a “common heritage of mankind”.50 Specifically, the internationalization of forest resources in Amazonia began to be discussed.51 The internationalization of the Amazon would mean the transfer of these states’ sovereignty to a supranational entity that would have the power over it in the name of all existing nations. The strong position was mainly defended by developed countries such as the United States. In 1989, the then us Senator Al Gore stated: “Contrary to what Brazilians think, the Amazon is not their property, it belongs to all of us”.52 The threat to the sovereignty of Amazon countries, as well as other developing countries with underexploited forest resources, was significant. The Brazilian government made clear that the Amazon belongs to the Brazilians, and that even though the importance of preservation is acknowledged, development was also necessary.53 The Mexican government, in turn, stated that “this is not the common heritage of mankind; it is a heritage of Mexicans – Mexican 48 49 50 51 52 53

48 49 50

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Anja Eikermann, Forests in International Law: Is there really a need for an International Forest Convention? 35 (2015). Id. Jennifer A. Loughrey, The Tropical Forest Conservation Act of 1998: Can the United States Really Protect the World’s Resources?-the Need for A Binding International Treaty Convention on Forests, 14 Emory Int’l L. Rev. 315, 354 (2000); Matthew B. Royer, Note, Halting Neotropical Deforestation: Do the Forest Principles Have What it Takes?, 6 Duke Envtl. L. & Pol’y F. 105, 135 (1996). Ronnie D. Lipschutz, Why is there no international forestry law?; An examination of international forestry regulation, both public and private, 19 ucla J. Envtl. L. & Pol’y 153, 2 (2000/2001). Alexei Barrionuevo, Whose Rain Forest Is This, Anyway?, NYTimes (May 18, 2008), available at http://www.nytimes.com/2008/05/18/weekinreview/18barrionuevo.html. Years later, in the State of the World Forum in New York in 2000, a Brazilian Senator, Cristovam Buarque, was asked about his thoughts on the topic of the internationalization of the Amazon, considering a humanist perspective instead of a Brazilian’s. He answered that he was for it, as long as other world’s treasures were also internationalized: “As a humanist, I accept to defend the internationalization of the world. But as long as the world treats me as a Brazilian, I will fight to keep Amazonia ours. Ours alone!” The full speech was published by the Brazilian newspaper O Globo, (Oct., 10, 2000). The translated version in English is available on World Rainforest Movement, The Internationalization of

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generations, present and future. We are not ready to give away these resources, which, according to the principle of sovereignty over natural resources, belong to the Mexican nation.”54 Due to the strong opposition, discussions regarding the internationalization of the Amazon, or any other forest resources, did not continue. On the contrary, the principle of sovereignty over natural resources was reinforced in the 1992 Rio Declaration.55 The 1992 unced brought an increasing international awareness for ­anti-deforestation initiatives, as well as the first major official f­ orestry-related discussion.56 However, a North–South divide quickly became evident. Because of the extreme difference of opinion between Northern and Southern ­countries, an agreement on forests was impossible to achieve. Issues such as the underlying causes of deforestation, Northern consumption patterns, ­appropriate ­financial mechanisms, and technology transfer prevented a consensus.57 With the failure of a binding agreement, governments settled on soft law instruments. Specifically, the “Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable ­Development of all Types of Forests”, also known as the “Forest Principles” and Chapter 11 of Agenda 21, entitled Combating Deforestation addressed forest protection.58 Forest Principles Though not legally binding, the Forest Principles raised a wide-ranging ­spectrum of issues, and showed the willingness of the international c­ ommunity to recognize the problem of deforestation and provide guidance to address it. It was the first global consensus on forests, and provided ample direction to 54 55 56 57 58

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Amazonia, Cristovam Buarque, available at http://www.wrm.org.uy/oldsite/countries/ Brazil/amazonia.html. As Preamble (e) states, the Principles apply “to all types of forests, both natural and planted, in all geographical regions and climatic zones, including austral, boreal, subtemperate, subtropical, and tropical.” unced, A Global Consensus on Development of all Types of Forests, 31 i.l.m. 881 (1992). A/CONF.151/26 (Vol. i), Report of the United Nations Conference on Environment and Development, held in Rio de Janeiro between 3–14 June 1992, Annex i: Rio Declaration on Environment and Development (Aug. 12, 1992), Principle 2. Al Zachary Lazarus, A War Worth Fighting: The Ongoing Battle to Save the Brazilian Amazon, 9 L. & Bus. Rev. Am. 399, 417 (2003); Andronico O. Adede, The Treaty System from Stockholm (1972) to Rio De Janeiro (1992), 13 Pace Envtl. L. Rev. 33, 37–38 (1995). McDermott et al., supra note 10 at 31. Melanie Steiner, The Journey from Rio to Johannesburg: Ten Years of Forest Negotiations, Ten Years of Successes and Failures, 32 Golden Gate U. L. Rev. 629, 633 (2002). United Nations Conference on Environment and Development, 31 i.l.m. 814, 817 (1992).

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preservation of all types of forests, rather than specific ecosystems or regions, as was advocated by the act. The principles acknowledged yet again the sovereign right of states to exploit their own resources pursuant to their own environmental policies.59 States share both the liberty to choose policies on forest conservation, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. This premise is pursuant to the aforementioned principles of the Stockholm and Rio Declarations, as well as the principles of the act. Using the concept of sustainable development, the Principles established that forest resources and forestlands should be sustainably managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations.60 There was thus a strong incentive for sustainable development and conservation measures, with implementation at the individual state level. A framework for national policies and strategies is therefore provided, including the development and strengthening of institutions and programs for the management, conservation and sustainable development of forests and forestlands.61 The Principles also addressed the issue of funding by determining that specific financial resources shall be provided to developing countries with significant forest areas that establish programs for the conservation of forests including protected natural forest areas. These resources shall be directed to economic sectors, thus stimulating economic and social development.62 Access to biological resources, including genetic material, shall be conducted with due regard to the sovereign rights of the countries where the forests are located and to the sharing on mutually agreed terms of technology and profits from biotechnology products that are derived from these resources.63 Benefits arising from the use of indigenous knowledge should also be equitably shared with communities.64 59 60 61 62 63 64

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u.n. General Assembly, Report of the United Nations Conference on Environment and Development, Annex iii: Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests (Forest Principles), ¶ A/CONF.151/26 (Vol. iii) 1(a) (Aug. 14, 1992). Forest Principles, 2(b). Id., 7(b). Id. Id., 8(g). Id., 12(d).

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The u.n. Commission on Sustainable Development was established in 1992 to ensure effective follow-up from the Earth Summit.65 In order to assist in the implementation of the Forest Principles, the Commission created an Intergovernmental Panel on Forests (ipf)66 in 1995. The Panel was tasked with pursuing “consensus and coordinated proposals for action to support the management, conservation, and sustainable development of forests.”67 Agenda 21: Chapter 11: Combating Deforestation The 1992 Rio Earth Summit yielded the comprehensive Agenda 21, adopted by 178 governments. Non-binding, voluntary, and representing the first sweeping action plan to “integrate national actions and international ­cooperation,”68 Chapter 11 specifically addressed means through which to combat deforestation.69 The Chapter lays out several different Program Areas, all containing Bases for Action and corresponding Objectives and Activities.70 The Bases for Action circle around national institutional strengthening and various ­scientific and technical means of implementing long-term, holistic measures 65 66 67 68 69 70

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67 68

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Commission on Sustainable Development, Sustainable Development Knowledge Platform, United Nations Department of Economic and Social Affairs, (2016), available at https:// sustainabledevelopment.un.org/csd.html. United Nations Meetings Coverage and Press Releases, United Nations Intergovernmental Panel On Forests To Hold Final Session At Headquarters 11–21 February, Press Release No. ENV/DEV/403 (Feb. 10, 1997), available at http://www.un.org/press/en/1997/19970210 .endev403.html. iisd, Earth Negotiations Bulletin, A Brief History of the ipf, available at http://www.iisd .ca/vol13/1314002e.html. John Heissenbuttel, Charlotte Fox et al., Review of the Forest Principles and Agenda 21 – Chapter 11 Combating Deforestation at 24 (1998), available at http://pdf.usaid.gov/pdf _docs/PCAAA345.pdf. Report of the United Nations Conference on Environment & Development, Annex ii at ¶11.3, u.n. Doc. A/Conf.151/26/Rev.1 (Vol. i) (1993), available at https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. Id. These Programme Areas include: (A) Sustaining the multiple roles and functions of all types of forests, forest lands and woodlands; (B) Enhancing the protection, sustainable management and conservation of all forests, and the greening of degraded areas, through forest rehabilitation, afforestation, reforestation and other rehabilitative means; (C) Promoting efficient utilization and assessment to recover the full valuation of the goods and services provided by forests, forest lands and woodlands, and (D) Establishing and/ or strengthening capacities for the planning, assessment and systematic observations of forests and related programmes, projects and activities, including commercial trade and processes.

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to achieve sustainable development and forest management.71 A topic discussed within Programme Area B was the effect of forest resource harvesting on other aspects of the forest,72 and the corresponding objective to “[p]repare and implement, as appropriate, national forestry action programmes and/or plans for the management, conservation, and sustainable development of forests.”73 It also calls attention to the need to develop consistent plans of action keyed towards public participation, land use/tenure patterns and local needs.74 Programme Area C focuses on promoting a reconceptualization of sustainable harvesting and management of timber and non-timber resources by stakeholders “to promote methodologies with a view to incorporating social, economic, and ecological values of trees, forests, and forest lands into the national economic accounting systems …”.75 Programme Area D emphasizes putting in place mechanisms to enable systematic, long-term observation, assessment and planning, especially in developing countries which do not already have these systems in place.76 Essentially, this document embodies the shift of focus from forests as a commodity to be managed by industry and government “to sustain the main resources … such as timber, grass, and minerals, rather than sustaining the multiple roles of a forest,”77 or viewing forests as a resource having value outside of pure economic gains, and which are to be sustainably and holistically 71 72 73 74 75 76 77

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See, id. at ¶11.1, explicitly stating the need for “more effective measures and approaches … at the national level to improve and harmonize policy formulation, planning and programming legislative measures and instruments …”. The paragraph also states that “[t]he need for securing the multiple roles of forests and forest lands through adequate and appropriate institutional strengthening has been repeatedly emphasized in many of the reports, decisions and recommendations of fao, itto, unep, the World Bank, iucn and other organizations”. Id. at ¶ 11.20. Id. at ¶ 11.12(b). This paragraph makes mention of then-current implementations of the tfap in over 80 countries. Id. at ¶ 11.11. Id. at ¶ 11.19, stating “[c]oncerted effort is needed in order to increase people’s perception of the value of forests and of the benefits they provide. The survival of forests and their continued contribution to human welfare depends to a great extent on succeeding in this endeavor.” Id. at ¶ 11.29. Susan Bucknum, The u.s. Commitment to Agenda 21: Chapter 11 Combating Deforestation – The Ecosystem Management Approach, 8 Duke Environmental Law & Policy Forum 305 at 309 (1998).

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­managed through inter-group and enhanced national collaboration.78 Agenda 21 calls on nations to implement long-term mechanisms so that the deep causes of deforestation can be mapped, understood, and targeted, and the relevant stakeholders engaged. Specifically, it calls on governments to, at the appropriate level, with the support of regional, subregional and international organizations, enhance institutional capability to promote the multiple roles and functions of all types of forests and vegetation inclusive of other related lands and forest-based resources in supporting sustainable development and environmental conservation in all sectors.79 Such multi-level involvement on the local, national, regional, and international levels will lead to a more lasting and wider-reaching plan for sustainable development into the future.

United Nations Framework Convention on Climate Change (unfccc) Although no binding agreement could be reached on forests, the 1992 unced succeeded in climate change, and approved the United Nations Framework Convention on Climate Change (unfccc). With 197 Parties to the Convention, the unfccc aims to prevent dangerous human interference with the climate system.80 It is based on the scientific reports from the Intergovernmental Panel on Climate Change (ipcc).81 The unfccc recognized that the largest percentage of greenhouse gases originated in developed countries. As a result, developed countries have additional responsibilities to take the action nationally and internationally. This includes both reducing emissions domestically through advanced technology, and serving as financial sponsors of climate mitigation measures in developing countries, including by sharing technologies. The unfccc entered into force in March 1994 and slowly developed into a very significant tool for forest protection. With forests functioning and holding major value as carbon sinks, yet another transect to international forest conservation discussions emerged.

78 79 80 81

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Agenda 21 emphasizes the need for intersectional participation of all stakeholders in forest management efforts, and calls for “promoting participation of the private sector, labour unions, rural cooperatives, local communities, indigenous people, youth, women … in forest related activities …” Id. at ¶ 11.3(b). Id., at ¶11.3. United Nations Framework on Climate Change, First steps to a safer future: Introducing the United Nations Framework Convention on Climate Change, available at http://unfccc.int/ essential_background/convention/items/6036.php. See ipcc, Reports, available at http://www.ipcc.ch/publications_and_data/publications_ and_data_reports.shtml, for comprehensive inventory of Assessment Reports, Methodology Reports, and Special Reports of the ipcc on various climate topics.

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Convention on Biological Diversity (cbd) In 1988, in recognition of the crucial role of the earth’s biological resources to global social and economic development, the United Nations Environment Programme (unep) convened the Ad Hoc Working Group of Experts on Biological Diversity. This was directly followed in 1989 by the establishment of the Ad Hoc Working Group of Technical and Legal Experts, which prepared an international legal instrument for the conservation and sustainable use of biological diversity.82 The Convention was presented at the Earth Summit, and entered into force in December 1993. cbd promotes the conservation of biological diversity, the sustainable use of the components of biological diversity, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.83 It is mostly implemented at the national level.84 All Parties to the Convention must prepare a National Biodiversity Strategies and Action Plans (nbsaps), and ensure its active implementation through activities, which may impact biodiversity.85 Forest Biodiversity is one of its thematic programs, and cbd has developed several initiatives in forest conservation over the years. 6.4

Forest Certification

As a response to the frustration with the itto process and the lack of agreement on forests in the Rio Summit, non-governmental organizations started a new approach to induce sustainable forestry.86 The Forest Stewardship Council (fsc) was created by the wwf, Greenpeace and the Rainforest Alliance to promote forest certification.87 Forest certification is a “voluntary process by which the planning and implementation of on-the-ground forestry operations 82 83 84 85 86 87

82 83 84 85

86 87

cbd, History of the Convention, available at https://www.cbd.int/history/. cbd, Introduction, available at https://www.cbd.int/intro/default.shtml. cbd, Article 6, available at https://www.cbd.int/convention/articles/default.shtml? a=cbd-06. Brazil (2015), Bolivia (2015), Colombia (2014), Ecuador (2014), Guyana (2015), Peru (2015), and Venezuela (2015) are all parties, and have submitted National Reports or National Biodiversity Strategy and Action Plans. Dates reflect the most recently submitted document. Forest Stewardship Council, Our History, available at https://us.fsc.org/en-us/who-we-are/ our-history. Other organizations also include the Indonesian Ecolabeling Institute, the Malaysian Timber Certification Council, and Programa Brasileiro de Certifação Florestal, and the

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are audited by a qualified, independent third party against a predetermined standard designed to ensure that operations are environmentally sustainable and socially acceptable.”88 Operations that conform to the standard are issued a certificate. The idea behind forest certification is to “access higher-value markets” for timber products. Through voluntary standards, a private perspective was introduced to the international forest regime.89 6.5

Institutional Development

Unlike International Environmental Law, the act achieved limited institutional progress during the second period of cooperation. The two meeting of the presidents were indeed the main achievements, and the development of international forest law provided a platform to advance the cooperative process, directing the focus of the act to environmental protection. Politically, the second phase was a great success. However, its institutional development was subpar. The pts changed headquarters twice during those five years, and was held by Colombia and Ecuador. The act still lacked a proper structure, and struggled with a linear expansion due to the temporary structure of the pts. A longterm plan was impossible to develop.90 Every time the pts moved from one country to the other, know-how was lost, along with the progress achieved so far.91 A small advancement was the approval of its regulation. The mmfa met only once, primarily to discuss the second meeting of the presidents. Three acc meetings were held in 1990, 1993 and 1994. These discussed the institutional challenges almost exclusively. However, there was a general failure to achieve consensus on how to improve it. The technical commissions were responsible for small advancements. They finally began to institutionalize, developing initiatives and channels of cooperation in the specific matters they were responsible for.92 The increased role

88 89 90 91 92

Program for the Endorsement of Forest Certification. See itto, itto/iucn Guidelines for the Conservation and Sustainable Use of Biodiversity in Tropical Timber Production Forests (itto Policy Development Series No. 17, 2009). 88 Id., at 38. 89 Eikermann, supra note 48, at 35. 90 Andrés Fernando Piedra Calderón, A Organização do Tratado de Cooperação Amazônica e a Consolidação do Processo de Integração Sul-Americana 68 (2007). 91 Rodolfo Ilário da Silva, Multilateralismo Amazônico, entre Êxitos Geopolíticos in bjir, Marília, vol. 2, No. 3, 541 (Set/Dez, 2013). 92 Antonio Quiroga and Jacques Marcovitch, supra note 1, at 24.

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of commissions derived from a position taken by the presidents in the 1989 Manaus Declaration. The presidents acknowledged that in order to fulfill the inherent environmental right of countries, the scea and sciaa should be fully supported. Indeed, the commissions were created to boost development, conserve natural resources, the environment, as well as the Amazonian populations, and require a proper structure to fulfill their mandates.93 For example, scea met on two occasions during the period, in 1991 and 1993.94 The meetings discussed the developments of the eight programs agreed on the first scea meeting, including Program 6: Planning and Management of Protected Areas, and Program 7, which focused on compatibility of environmental law and exchange of information on national programs for environmental protection.95 scea reported the successful creation of the ­Sub-Network of Management and Planning of National Parks and Protected areas in Amazonia, largely incentivized by Colombia during the International Seminar on National Parks and Protected Areas in Amazonia.96 A document entitled Amazonian Legislation was presented by unamaz.97 Networks of technical cooperation were suggested in order to analyze common problems and transfer successful experiences.98 A specific program for the protection and use of forest resources would be conducted by the forest services in each country.99 In addition, a pilot program for the sustainable and multi-purpose management of forest resources was suggested, that would be applied in rural populations and extractive reserves.100 The link between environmental protection and economic development was constantly highlighted during the period. At the I Meeting of the Presidents, Amazon countries drew attention to the large foreign debt then faced by them. Within this context, social and economic development was essential to properly conserve the environment. Indeed, there was a primary need for economic growth, as well as financial and technological assistance from

93 94 95 96 97 98 99 100

93

Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 3. 94 act, supra note 12, at 4. 95 Id., at 86–89. Informe de la Segunda Reunión de la Comisión Especial del Medio Ambiente de la Amazonia – cemaa (Jan. 25, 1991). Id., at 57. 96 Sub-Red de Manejo y Planificación de Parques Nacionales y Areas Protegidas de la Amazonía. 97 Id., at 89. 98 Id., at 108–109 (Annex No. 5). 99 Id., at 215. 100 Id., at 231.

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developed countries.101 Within this context, balance could be achieved through national, bilateral and regional cooperative measures,102 as well as constant dialogue between stakeholders.103 By asking for external financial and technological assistance for economic prosperity, the presidents opened the act to participation of third parties, inviting them to be observers in the meetings, as well as to contribute financially in concrete projects.104 As such, member countries acknowledged the possibility for environmental protection to be strengthened by cooperation from Amazonian countries as well as other countries and international bodies.105 Cooperation, however, shall be done “freely and without external impositions” according to the government’s priorities.106 Cooperation was a double-edged sword: while it could help Amazon countries achieve sustainable development, it could open the organization to outside interference. The statement was necessary to avoid the latter. Parties were welcome to participate and contribute, as long as it was limited to the agenda, activities, and projects chosen by the act. At the ii Meeting of the Presidents, countries once again underscored the need to consider environmental protection in economic decisions as a prerequisite to sustainable development.107 They committed to consolidate regional cooperation and endow the act with a more active cooperative role, and highlighted financial resources and technical cooperation as ways to improve it.108 However, despite the two remarkable meetings of the presidents, the second phase saw few practical achievements. The meetings that occurred within the act’s framework can be summarized in Table 14. 101 102 103 104 105 106 107 108

101 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 7, 8. 102 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 4, 5. 103 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 10. 104 Antonio Quiroga and Jacques Marcovitch, supra note 1, at 24. 105 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 4. 106 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos, art. 4. 107 Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, VII(1). 108 Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, x and xi.

158 Table 14

Date

chapter 6 Summary of meetings and results during Phase 2 within the act’s framework (1989–1994)109

Meeting & Additional notes

Mar. 1988–May 1990 Pro Tempore Secretariat established in Colombia. May 6, 1989 I Meeting of the Presidents110 May 2–5, 1990 iv Ordinary Meeting of the Amazon Cooperation Council:111 Recommended that all activities and international meetings on Amazonia take place within the act framework, the pts and special commissions, if applicable. Resolution about the work of commissions approved.112 May 1990–Jul. 1993 Pro Tempore Secretariat established in Ecuador. 7–8 Nov. 1991 iv Meeting of the Ministers of Foreign Affairs:113 Santa Cruz de la Sierra Declaration:114 Discussed the meeting of the presidents for the following year, the creation of ad hoc groups to discuss institutional strengthening, and created a financial mechanism. Approved the regulation for the functions of the pts. 109 110 111 112 113 114

109 Please note that this is not an exhaustive list of the meetings held under the act/acto umbrella, or of the issues discussed in them. It is meant to illustrate the development of the institution and highlight some aspects for the purposes of this book. 110 Declaración de Manaos de la i Reunión de los Presidentes de los Países Amazónicos. 111 iv Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Bogotá, Colombia, on May 2–5, 1990, Acta Final. All members except Guyana were present. Observers from pnud, fao, unesco, and oea. 112 acc, Resolución de la iv Reunión Ordinaria del Consejo de Cooperación Amazonica para la Adopción de Mecanismos de Consulta y Coordinación entre las Comisiones Especiales del Tratado de Cooperación Amazonica (May 1990). 113 iv Reunión de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on Nov. 7–8, 1991, Acta. 114 act, Declaración de Santa Cruz de la Sierra (Nov. 1991). http://otca.info/portal/admin/ _upload/documentos/IV_REUNION_MINISTROS_Declaracion_Santa_Cruz_de_la_Sierra .pdf.

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Date

Meeting & Additional notes

Feb. 11, 1992 Jul. 19–22, 1993

ii Meeting of the Presidents115 I Extraordinary Meeting of the acc and v Ordinary Meeting of the acc:116 institutional strengthening discussed, especially on the regulation of the pts, and the influence of member countries over it. No agreement on recommendations was reached as the countries diverged on the nature and regulation of the pts.

6.6 Conclusion The second period of cooperation lasted from 1989 to 1994, and saw few developments within the act’s framework. However, it was particularly important to strenghten the political commitments of member countries to regional cooperation in Amazonia. Indeed, the heads of state of Amazon countries met twice during the second phase: in 1989 and in 1992. The first Meeting of the Presidents, which resulted in the 1989 Manaus Declaration, constituted a landmark in regional cooperation by recognizing environmental protection at the core of the act. The second Meeting of the Presidents, which resulted in the 1992 Manaus Declaration, showed unity from Amazon countries through the first joint position to be presented in the international environmental negotiations. These thus reshaped the act, gearing the institution towards an environmental focus, and a platform for Amazon countries to present a unified voice at the global level. The international scenario boosted the political commitments. Indeed, the 1992 Rio Conference provided for an unprecedented advancement in International Environmental Law, and resulted in several important agreements, including the Rio Declaration, the unfccc, and the cbd. The period was critical for forest protection, with the first prospects for an international forest convention. These, however, quickly became compounded by challenges in sovereignty and finance. 115 116

115 Declaración de Manaos de la ii Reunión de los Presidentes de los Países Amazónicos, supra note xx. 116 i Reunión Extraordinaria y v Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Quito, Ecuador, on July 19–22, 1993, Acta Final.

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During the advent and in the aftermath of the Rio Summit, the preservation of forests became increasingly valued, with a departure from the economic benefits of strict exploitation for industry use. However, the North–South divide was still apparent, bringing issues of national sovereignty and resource control to the fore, and with them, contention. These discrepancies brought to light a divergence in global and national forest interests.117 Significant gains were achieved in the form of the Forest Principles, forest certification, and financing to achieve climate mitigation. The approval of the Forest Principles at the Rio Summit, albeit non-binding, provided an agenda for forest policies at the international level. Forest certification arose under the umbrella of the itto as a response to the lack of binding commitments in Rio. Additionally, the international dialogue on climate change began to pick up steam, and with it, various issues of climate finance. With forests functioning and holding major value as carbon sinks, yet another transect to international forest conservation discussions emerged. In terms of institutional development, the act achieved little. The pts was held by Colombia and Ecuador, with limited structure and continuity. However, the regulation of the pts was approved. The acc met three times to discuss the act’s structure, as well as how to improve it. The role of the commissions increased. scea, especially, discussed eight programmatic areas of focus, including protected areas. However, countries faced several challenges that hindered development, namely the early stages of national democracies and the financial crisis that was common in most Amazon countries. The 1994 acc meeting, however, paved the way for the institutional changes that largely characterized the third phase of cooperation.

117

117 Eikermann, supra note 48, at 2.

chapter 7

Third Period of Cooperation within the Act’s Framework (1995–2002): Institutional Maturity The operationalization of the Treaty gained momentum from the decision to create a Permanent Secretariat in 1995. Three years later, with the signing of the Amendment to the act, it was possible to create the Organization (acto) dedicated to dynamize it, and confer more solidity in the aspects of cooperation, exchange, and interchange of knowledge between the member countries. This measure was essentially important because it allowed the initiation of the constitution of a clearer identity and related to the joint action in Amazonia. It also enabled the conciliation process within the context of regional cooperation, taking advantage of the relationship with other international organizations and supporting countries.1

∵ The third phase of development within the act’s framework was characterized by a strong institutional maturity, developing from the stalemate that char1

1 Rodolfo Ilário da Silva, A cooperação multilateral entre os países amazônicos: a atuação da Organização do Tratado de Cooperação Amazônica (otca), 125, Unpublished Masters Thesis, unesp (2012). (citing Antonio José Ferreira Simões, Amazônia e Desenvolvimento Sustentável: a importância da cooperação entre os países amazônicos, available at http://www.funag .gov.br/images/stories/PDF/Artigo_Simoes_FUNAG_Amazonia.pdf.) “A operacionalização do Tratado ganhou fôlego a partir da decisão de criar uma secretaria permanente, em 1995. Três anos após, com a assinatura da Ementa ao tca, foi possível criar a Organização (otca) dedicada a dinamizá-lo e a conferir mais solidez nos aspectos de cooperação, intercâmbio e troca de conhecimento entre os países-membros. Essa medida foi essencialmente importante porque permitiu iniciar a constituição de um identidade mais clara e relacionada com a ação conjunta na Amazônia. Permitiu ainda favorecer o processo de concertação dentro do contexto da cooperação regional, aproveitando-se da relação com outros organismos internacionais e países apoiadores. Instalada em Brasília, a secretaria permanente passou a lograr um corpo de funcionários relativamente modesto mas engajado no papel de facilitar o diálogo comum. Dessa época até hoje, pode-se dizer que a otca está caminhando para alcançar sua maturidade.” (simões, 2011). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_008

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acterized the treaty during phase 1 and 2. Indeed, Amazon countries decided to act on the broad mandate to strengthen cooperation. The period brought the act to the next level by establishing the Permanent Secretariat. Following this first development, the Amendment Protocol was negotiated, leading to the transition to the Amazon Cooperation Treaty Organization (acto) eight years later. The acto, as an instrument to ensure greater institutional representativity, was better equipped to fulfill the mandate of the act.2 Despite limited progress, Phase 2 ended with the 1994 acc meeting,3 which paved the way for the institutional change that largely characterized the third phase of cooperation.4 Indeed, the acc’s original role was to promote coordination between member countries. As the treaty was re-launched in the second development phase, the acc’s functions were also revised, and it embodied a more leading position.5 The third period reflected intense activity for the acc, as the body that conceptualized most of the changes approved by the mmfa in the aftermath. Taking advantage of the political momentum that characterized Phase 2, cooperation progressed through a series of resolutions that brought relevant themes to the attention of the mmfa. As such, the acc meetings were quickly followed by mmfas in most cases. The renewed interest of members showed that the political commitment reached a new level of maturity, giving more weight to the idea of a new permanent body for the act. Indeed, the temporary structure of the pts, which rotated between countries, slowed development, and represented the main challenge towards a more efficient act. As a result, a more institutionalized and permanent structure began to take shape.6 This chapter analyzes the maturity of the act into the acto, as well as the development of regional cooperation during the third phase. In particular, it 2 3 4 5 6

2 Antonio José Ferreira Simões, Eu Sou a América do Sul, 39 (2012), available at http://funag .gov.br/loja/download/914-Eu_sou_da_America_do_Sul.pdf. 3 vi Reunión Ordinária del Consejo de Cooperación Amazonica, held in Lima, Peru, on October 10–11, 1994, Acta Final. The resolutions and declarations cited within this chapter can be found at Tratado de Cooperación Amazónica, Secretaría Pro Tempore, Base Jurídica del Tratado de Cooperación Amazónica: Antecedentes Constitutivos de la Organización del Tratado de Cooperación Amazónica (otca) (Dec. 2002), available at http://www.otca.info/portal/ admin/_upload/publicacoes/SPT-TCA-BOL-SN_BJ.pdf. 4 Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos para La Organización del Tratado de Cooperación Amazónica – otca 25 (otca, 2003, non-published paper). 5 Id., at 24–25. 6 Id., at 24.

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analyzes the environmental agenda that arose in a more structured act/acto, especially with respect to forest management. As a result of the political will reignited in Phase 2, the act found a global voice in the international environmental law agenda, and Phase 3 saw this trend expand through several declarations published in the period. Finally, the development of international forest law is analyzed in parallel, showing the influence on the Amazon region in particular. The third phase lasted from 1994 until 2003, and can be summarized in Table 15. Due to the growing dynamic of cooperation between countries, and the adjustments to the new circumstances of the 21st century, it is called the “institutional maturity phase”.7

Table 15

Timeline of Phase 3 of cooperation within the ACT’s framework (1994–2002) act Amendment Protocol

vii acc viii acc

vi acc

x acc

xi acc

xi acc v mmfa

1994

1994 itta

1995

1996

ipf established

1997 Permanent Secretariat created

scea created

vi mmfa

1998

1999

Kyoto Protocol iff established Rio +5

2000

2001

vii mmfa

2002

2003

Millenium Declaration unff established Collaborative Partnership on Forests

7

7 The categorization of the development of the organization in different phases was originally suggested by Antonio Quiroga and Jacques Marcovitch, supra note 4, at 24. See also Rodolfo Ilário da Silva, Multilateralismo Amazônico, entre Êxitos Geopolíticos in bjir, Marília, vol. 2, No. 3, 542 (Set/Dez, 2013).

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Institutional Development

The third phase of the act is called “institutional strengthening and maturation”.8 During the nine-year period, four ACC meetings and four MMFAs occurred. The meetings from the political bodies of the act widely discussed and approved two main developments in the institutional framework of the treaty, which eventually brought cooperation to the next level. The development began with the creation of a Permanent Secretariat to the act, and its later transition to the acto, with significant changes to the original structure. This section analyzes the institutional development of the act during the third phase, and is divided into four sub-sections. Following a chronological order, it starts with the changes to the structure of the Pro Tempore Secretariat (pts), and its development into the Permanent Secretariat (PS). It then follows the meetings and discussions that led to the Amendment Protocol in 1998, in particular the work of the ad hoc working group created for the purpose of r­ evising the institutional structure of the treaty. After a brief summary of the contents of the Amendment Protocol, its implementation is discussed. The meetings that occurred within the act’s framework can be summarized in Table 16. Table 16 Summary of meetings and results within the ACT’s framework during Phase 3 (1994–2002)

Date

Additional notes

Jul. 1993–Mar. 1997 Oct. 10–11, 1994

Pro Tempore Secretariat established in Peru. VI Ordinary Meeting of the Amazon Cooperation Council (ACC):9 Made general recommendations for institutional strengthening of the act, including to create an ad hoc group to analyze suggestions, and extend the exercise period of the pts to three years. Also approved: VI CCA/5 on support by international organizations and vi CCA/6 on political coordination in Amazonia. Nov. 30–Dec. 1, 1995 vii Ordinary Meeting of the Amazon Cooperation Council (acc):10 8 9 10

8 9 10

Antonio Quiroga and Jacques Marcovitch, supra note 4, at 24. vi Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Lima, Peru, on May 10–11, 1994, Acta Final. vii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Lima, Peru, on 30 Nov.-1 Dec., 1995, Acta Final.

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165

Additional notes

Initiative to incorporate the concept of sustainable development. Brazil presented a proposal for the permanent secretariat headquartered in Brasilia. Results of the ad hoc group on the recommendations to be considered by the mmfa. It was the first meeting within the deadlines of its regulation. Model Rule for the Commissions developed. Ad hoc group created for the regulation of the permanent secretariat created. Dec. 5, 1995 v Ordinary of the Ministers of Foreign Affairs (mmfa):11 Lima Declaration:12 Created the Permanent Secretariat, instituted a financial mechanism for the act, created the Special Commission for Education (ceeda), debated the adoption of a document with sustainability indicators, established an institute for investigation and protection of genetic resources. Mar. 10–11, 1997 viii Ordinary Meeting of the Amazon Cooperation Council (acc):13 Ad hoc working group on the new structure and rules of the ps widely discussed.14 Transferred the pts from Peru to Venezuela, for an initial period of three years.15 Mar. 1997–Apr. 2000 Pro Tempore Secretariat established in Venezuela. Oct. 5–6, 1998 ix Ordinary Meeting of the Amazon Cooperation Council (acc):16 Discussed the results of the ad hoc working group, initiated a project to revise the legal base of the act. Discussed a project for cooperation in commercial forest resources. Dec. 14, 1998 Amendment Protocol to the Amazon Cooperation Treaty 11 12 13 14 15 16

11 12 13 14 15 16

v Reunión de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Lima, Peru, on 4–5 Dec., 1995, Acta Final. act, v mmfa, Declaración de Lima (Dec. 1995). viii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Caracas, Venezuela, on 10–11 Mar., 1997, Acta Final (hereinafter act, viii acc). act, viii acc, res viii cca/6 (Mar. 11, 1997). act, viii acc, res viii CCA/2 (Mar. 11, 1997). ix Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Caracas, Venezuela, on 5–6 Oct., 1998, Acta Final (hereinafter act, ix acc).

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Table 16  Summary of meetings and results within the act’s framework during Phase 3 (1994–2002) (cont.)

Date

Additional notes

Apr. 4–5, 2000

x Ordinary Meeting of the Amazon Cooperation Council (acc):17 Update on the ratification of the Amendment Protocol, already deposited by Bolivia, Brazil, Peru, and Venezuela. Discussed the regulation of the ps, the quotas from countries, and the headquarters agreement. Transferred the pts to Bolivia. Updates from cecta and scea. Apr. 6, 2000 vi Ordinary Meeting of the Ministers of Foreign Affairs (mmfa):18 Caracas Declaration:19 Adopted the regulation of the ps.20 Created the CCACC.21 Transferred the pts to Bolivia.22 Approved the quotas from member countries.23 Apr. 2000–Nov. 2002 Pro Tempore Secretariat established in Bolivia. Nov. 20–21, 2002 xi Ordinary Meeting of the Amazon Cooperation Council (acc):24 Discussed the agreement between the acto and Brazil, the regulation of the ps, structure of the acto and the ps, quotas from countries, the installation of the ps in Brasília, the election of the Secretary General, and the upcoming mmfa meeting. 17 18 19 20 21 22 23 24

17 18

19 20 21 22 23 24

x Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Caracas, Venezuela, on 4–5 Apr., 2000, Acta Final (hereinafter act, x acc). vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (hereinafter act, vi mmfa). act, vi mmfa, Declaración de Caracas (Apr. 2000). act, vi mmfa, res/vi mre-tca/1 (Apr. 6, 2000). act, vi mmfa, res/vi mre-tca/2 (Apr. 6, 2000). act, vi mmfa, res/vi mre-tca/4 (Apr. 6, 2000). act, vi mmfa, res/vi mre-tca/6 (Apr. 6, 2000). xi Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final (hereinafter act, xi acc).

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Date

Additional notes

Nov. 22, 2002

vii Ordinary Meeting of the Ministers of Foreign Affairs (mmfa):25 Santa Cruz de la Sierra Declaration:26 Approved the Headquarters’ Agreement,27 the Staff ­Regulation of the ps,28 and the structure of the acto.29 Pro Tempore Secretariat established in Brazil.

Nov. 2002–2003

From Pro Tempore Secretariat to Permanent Secretariat During the two phases of development of the act, it became clear that a major institutional change was needed to ensure continued regional cooperation. Some changes had already been implemented. After the iii mmfa in Phase 2, the pts’s attributions were broadened. It included the responsibility to ensure compliance with the treaty’s objectives, the mmfa, and acc resolutions in addition to its original secretarial tasks.30 An ad hoc consultation committee was established to support its activities, and facilitate the adoption of common positions at the international level.31 However, it was not enough. The rotation scheme slowed the Secretariat’s activities, and hindered the advance of its capacities. In order to address the pressing challenges in the act’s structure, the acc agreed to revise its structure.32 The goal was to make the act more dynamic, and facilitate communication between its members.33 To address the issue in the shorter term, the exercise period of the pts was officially extended to three years. Although it was originally supposed to rotate between members every year, the requirement was  never complied with. The new period gave host countries more 25 26 27 28 29 30 31 32 33

25

26

27 28 29 30 31 32 33

vii Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 22 Nov., 2002, Acta Final (hereinafter act, vii mmfa). act, vii mmfa, Declaración Santa Cruz de la Sierra (Nov. 22, 2002), available at http:// otca.info/portal/admin/_upload/ministros/VIIREUNION_MINISTROS_Declaracion _Santa_Cruz_de_la_Sierra.pdf. act, vii mmfa, res/vii mre-tca/4 (Nov. 22, 2002). act, vii mmfa, res/vii mre-tca/5 (Nov. 22, 2002). act, vii mmfa, res/vii mre-tca/8 (Nov. 22, 2002). 1991 Regulation of the Pro Tempore Secretariat, art. 5. See Beatriz Garcia, The Amazon from an international law perspective, 104–105 (2011). act, vi acc, Acta Final. act, vi acc, res / cca vi / 1.

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time to develop projects and activities while a more permanent structure was considered.34 To examine options for long-term changes to the pts, the acc created an ad hoc working group.35 The working group was endowed with the task of proposing changes to the text of the Treaty and related regulations, according to an analysis based on the administrative, legal, technical and financial implications of a permanent secretariat.36 The decision was a turning point in the development of the act, and represented the first step towards a renewed cooperation phase.37 Member countries were finally on the same page in terms of activities and progress, and the idea of a permanent secretariat gained traction. Another acc meeting was held a year later. At the vii acc meeting, the ad hoc working group presented the results of the study on institutional strengthening of the treaty.38 That document would be the basis for the decision taken at the v mmfa, held in December 1995. At the v mmfa, the creation of the Permanent Secretariat (ps) was officially approved.39

The Work of the ad hoc Working Group towards the Amendment Protocol In order to prepare the legal framework of the new ps, an ad hoc working group was created, with the mandate to develop a proposal to define its structure, goals and opportunities.40 However, the enthusiasm showed then was not maintained. Despite the speed with which the resolution to create the ps was agreed on, it took Foreign Ministers another five years to revisit the issue and drafted its regulation.41 A lot of uncertainty characterized the period between 1996 and 2000. Despite the relevance of the strategic decision, ­countries had different rhythms.42 In addition, they disagreed on the specifics 34 35 36 37 38 39 40 41 42 43

34 35 36 37 38 39 40 41 42 43

act, vi acc, res / cca vi / 3. Antonio Quiroga and Jacques Marcovitch, supra note 4, at 24–25. act, vi acc, res / cca vi / 2, para. 1. Antonio Quiroga and Jacques Marcovitch, supra note 4, at 26–27. act, vii acc, Acta Final. act, v mmfa, res/v mre-tca/1. act, v mmfa, Declaración de Lima (1995). act, v mmfa, res/v mre-tca/1. act, Ad Hoc Working Group, Reunión de Instalación, Acta (Brasília, May 13, 1996). Antonio Quiroga and Jacques Marcovitch, supra note 4, at 25. Id., at 25. act, v mmfa, res/v mre-tca/1.

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of the ps. The structure and goals of the ps were only agreed on in 2002.43  During this period, the ad hoc working group had six meetings, as per Table 17.44 Table 17 Meetings of the ad hoc working group on the establishment of the Permanent S­ ecretariat (1996–1998)45

Meeting Location

Date

i

Brasília, Brazil

May 13, 1996

ii

Lima, Peru

iii

Brasília, Brazil

iv

Brasília, Brazil

v

Caracas, Venezuela

vi

Brasília, Brazil

Notes

Defined the agenda for its mandate, and divided tasks among members. Peru, as the current pts, took a leading role in the discussions.46 Jun. 3–4, 1996 Effectively boosted discussions on the structure of the ps.47 Deadline extended. Jul. 31–Aug. 1, A proposal from Brazil 1996 was discussed, as well as a structure model by Peru.48 Jan. 21–23, 1998 An agreement was reached on the revised article xxii of the act.49 Jun. 9–10, 1998 Proposal for granting legal personality to the act.50 Draft headquarters agreement discussed. Sep. 10–11, 1998 Minor revisions proposed.51

44 45 46 47 48 49 50 51

44 45

46 47 48 49 50 51

Beatriz Garcia, supra note 31, at 110. act, supra note 3, at 597–630. This process was done with the financial support of fao and the Netherlands. Two additional meetings were held after the structure of the ps was approved. Meetings vii and viii are included in the next section, as they pertain to the transition from the pts to the ps. act, Ad Hoc Working Group, Reunión de Instalación, Acta (Brasília, Brazil, May 13, 1996). act, Ad Hoc Working Group, ii Reunión, Acta Final (Lima, Peru, Jun. 3–4, 1996). act, Ad Hoc Working Group, iii Reunión, Acta Final (Brasília, Brazil, Jul. 31–Aug. 1, 1996). act, Ad Hoc Working Group, iv Reunión, Acta Final (Brasília, Brazil, Jan. 21–23, 1998). act, Ad Hoc Working Group, v Reunión, Acta Final (Caracas, Venezuela, Jun. 9–10, 1998). act, Ad Hoc Working Group, vi Reunión, Acta Final (Brasília, Brazil, Sep. 10–11, 1998).

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The ad hoc working group met on three occasions until 1996. The first meeting  occurred approximately 5 months after the working group was established.52 However, the work was not concluded in the predicted period, and the deadline to complete its assessment was extended.53 No meetings followed in the next year, as the working group had reached a stalemate. It required a push from a higher-level body of the act. Despite the progress reported at the viii  acc meeting, countries disagreed on the structure of the new ps. There was still no draft document for consideration, and the deadline was once again extended.54 The acc reactivated the discussion and the work of the  ad  hoc  working group, reinforcing the need for joint consideration of  ­proposals and a common position on the areas in which they disagreed on.55 They recommended the continued study of the potential role of the ps as a mechanism for coordination, considering the current role of the acc.56 After the reinforcement by the acc, the ad hoc working group met on three  occasions in 1998. At the fourth reunion, it was important to remember the progress achieved so far, and reestablish the discussions forgotten in the hiatus. The Brazilian Ambassador highlighted the progress achieved in the first three meetings, including the definition of the terms of reference for the group, the distinction between the role of the new Secretariat and the political bodies of the treaty, and the recognition of the advantages of strengthening intergovernmental coordination within the act.57 Regardless of the specific functions of the new ps, members needed to reach a consensus on the revision of article xxii of the act, and give a strategic purpose to the treaty, especially through the coordination of common positions. An understanding was finally reached on the revised article, which would be presented to the mmfa in 2000. At the v meeting of the ad hoc working group, Brazil presented a proposal for granting international legal personality to the act, and endowing the Secretary General with the power to sign contracts representing the Secretariat.58 A draft headquarters agreement was also discussed, according to an initial 52 53 54 55 56 57 58

52 53 54 55 56 57 58

act, Ad Hoc Working Group, Reunión de Instalación, Acta (Brasília, Brazil, May 13, 1996). act, Ad Hoc Working Group, ii Reunión, Acta Final (Lima, Peru, Jun. 3–4, 1996). act, viii acc, Adopted Resolutions. act, viii acc, res viii CCA/6. act, viii acc, res viii CCA/6. act, Ad Hoc Working Group, iv Reunión, Acta Final (Brasília, Brazil, Jan. 21–23, 1998). act, Ad Hoc Working Group, v Reunión, Acta Final (Caracas, Venezuela, Jun. 9–10, 1998).

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­ roposal by Brazil. Minor revisions to these proposals were suggested at the p vi meeting.59 The working group presented a final report of institutional changes at the sixth meeting. It included: (i) the Protocol of Amendment of Article xxii of the act; (ii) the draft regulation of the ps; and (iii) the draft regulation of the Coordination Commission of the Cooperation Council (ccacc).60 It recommended endowing the ps with greater management capacities relative to the prior pts, and with a legal personality to represent the act member States. On October 1998, during the ix acc meeting, the national representatives finally agreed on the contents of a document that gave way to changes in the operation of the Treaty.61 The Amendment Protocol At the end of 1998, the member countries approved the Amendment Protocol to the act.62 The Amendment Protocol altered article xxii of the treaty, and created the Amazon Cooperation Treaty Organization. The Protocol reads:

59 60 61 62 63

59 60 61 62

63

The Republics of Bolivia, of Brazil, Colombia, Ecuador, Guyana, of Peru, Suriname and Venezuela, reaffirming the principles and objectives of the Amazon Cooperation Treaty, considering the desirability of improving and institutionally strengthen the cooperation process developed under the aegis of the mentioned document, agree to: Create the Amazon Cooperation Treaty Organization (acto), with legal personality, being competent to conclude agreements with the Contracting Parties, with non-Member States and other international organizations. Modify, as follows, Article xxii of the Treaty text: The Amazon Cooperation Treaty Organization will have a Permanent Secretariat based in Brasilia, responsible for implementing the objectives of the Treaty in accordance with the resolutions of the meetings of Ministers of Foreign Affairs and the Amazon Cooperation Council.63 act, Ad Hoc Working Group, vi Reunión, Acta Final (Brasília, Brazil, Sep. 10–11, 1998). See section below about the ccacc. ix Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Caracas, Venezuela, on 5–6 Oct., 1998, Acta Final (hereinafter act, ix acc). Protocol of Amendment for the Creation of the Organization of the Amazon Cooperation Treaty (act, Amendment Protocol), agreed on Dec. 14, 1998. Brazil, Legislative Decree 1999 (Set. 25, 2002). act, Amendment Protocol.

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Implementation of the Amendment Protocol Although the Amendment Protocol was signed in 1998, the acto would only materialize in 2003, functioning within the Brazilian Ministry of Foreign Affairs until 2004. Indeed, the adoption of a document that ensured institutional representation was only the first step to build a permanent political regional forum for Amazon countries.64 After the Amendment Protocol was approved, the process reached once again a stalemate. Countries had to fulfill their constitutional requirements to ratify the amendment at the national level, and deposit its ratification with Brazil.65 The bureaucracy took time, and the institution could not advance while the countries fulfilled it. As such, there were no meetings from the acc or mmfa until 2000. The only discussions within the act’s framework occurred within the ad hoc working group, which had two final meetings to discuss the transition process from pts to ps as summarized in Table 18.66

Table 18 Meetings of the ad hoc working group on the establishment of the Permanent Secretariat (1999–2002)67

Meeting Meeting venue Date vii viii

Caracas, Venezuela Brasília, Brazil

Notes

Jul. 7–8, 1999

Transition process from pts to ps discussed.68 Jul. 17–18, 2002 Discussed the payment of quotas by the governments, the transition from pts to ps, and the candidacy of the Secretary General.69

64 65 66 67 68 69

64 65 66

67 68 69

Rodolfo Ilário da Silva, supra note 7, at 542. Antonio Quiroga and Jacques Marcovitch, supra note 4, at 28. act, Ad Hoc Working Group, vii Reunión, Acta Final (Caracas, Venezuela, Jul. 7–8, 1999). act, Ad Hoc Working Group, viii Reunión, Acta Final (Brasília, Brazil, Jul. 17–18, 2002). act, supra note 3, at 597–630. act, Ad Hoc Working Group, vii Reunión, Acta Final (Caracas, Venezuela, Jul. 7–8, 1999). act, Ad Hoc Working Group, viii Reunión, Acta Final (Brasília, Brazil, Jul. 17–18, 2002).

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In 2000, the vi mmfa occurred.70 Member countries reminded each other once again that the management of the Amazon Basin required the support of a strong and efficient level of administration that responded to the needs of international coordination. This role was to be assumed by the acto and the ps. However, it required member countries to offer their full support towards its success, especially through financial contributions and political will.71 The Caracas Declaration determined the need to accelerate the process of establishing the acto and the ps. By that date, only half of the act members, Bolivia, Brazil, Peru and Venezuela had complied with the obligation to ratify the Amendment Protocol. Nonetheless, the mmfa achieved some concrete developments. The regulation of the ps was finally approved.72 In addition, the Coordination Commission of the Amazon Cooperation Council (ccacc) was created, along with the immediate approval of its regulation.73 Through these resolutions, the act paved the way for legislative implementation of the Organization to settle properly in Brasilia.74 Another two years passed until all members ratified the Amendment ­Protocol. In August 2002, the ratification process was finalized.75 In the Santa Cruz de la Sierra Declaration adopted by the vii mmfa, member countries congratulated each other on the last step of creating the acto and the ps.76 As a result of the meeting, and from the preparations done by the acc, the Headquarters’ Agreement,77 the Staff Regulation of the ps,78 and the structure  of the acto79 were approved. The requirement complied with all 70 71 72 73 74 75 76 77 78 79

70 71 72 73 74 75 76 77

78

79

act, vii mmfa, Acta Final. act, vi mmfa, Acta Final, Annex ii. See the specific discussion about the financial mechanisms below. act, vi mmfa, res / vi mre-tca 1. act, vi mmfa, res / vi mre-tca 2 (see below). Antonio Quiroga and Jacques Marcovitch, supra note 4, at 29. act, vii mmfa, Acta Final. act, vii mmfa, Acta Final. act, vii mmfa, res/vii mre-tca/4. act, vii mmfa, Acta Final. (Annex iv: Acuerdo de Sede Entre El Gobierno de la Republica Federative del Brasil y la Organización del Tratado de Cooperación Amazonica). act, vii mmfa, res/vii mre-tca/5. act, vii mmfa, Acta Final. (Annex v: Reglamento de Personal de la Secretaria Permanente de la Organización del Tratado de Cooperación Amazonica). act, vii mmfa, res/vii mre-tca/8 (Nov. 22, 2002).

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the ­institutional elements necessary for the new stage of cooperation in the ­Amazon Basin. 7.2

The Amazon Cooperation Treaty Organization

The acto was structured as an international organization within three acting spheres: political-diplomatic, strategic, and technical. It functions to ensure political and diplomatic coordination both regionally and globally through periodical meetings of high-level representatives to address the problems within the Amazon region. It also functions in the strategic sphere, as it is a forum to think about the Amazon Basin and rainforest as a whole, and, as such, make decisions regarding its social, economic and sustainable development. Finally, it acts in the technical sphere as it induces research and analysis about the region. The acto is composed by the Meeting of the Presidents, the Meeting of Foreign Affairs (mmfa), the Amazon Cooperation Council (acc), the Coordination Commission of the Amazon Cooperation Council (ccacc) and the Permanent Secretariat (ps), as shown in Figure 3. The new model had two additional bodies compared to the original structure of the act. These will be explained in the following subsections.80 The Permanent Secretariat (ps) The Permanent Secretariat was established in 1995.81 However, it took members until 2002 to develop its role, structure, and objectives. The Pro-Tempore

Meeting of the Presidents

Figure 3

Meetings of Foreign Affairs Ministers

Amazon Cooperation Council

Coordination Commission of the Amazon Cooperation Council

Permanent Secretariat

acto’s structure.82

80 81 82

80 81 82

Please refer to Chapter 5, Section 5.7, for a brief explanation of the remaining bodies of the acto (the original bodies of the act). act, art. 22, as modified by Amendment Protocol to act. act, v mmfa, res/v MRE-TCA/1. See acto, Structure, available at http://www.otca.info/portal/admin/_upload/documentos/organigrama_english.pdf (last visited Mar. 20, 2014).

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Secretariat developed its activities from October 1980 to 2003, when the ps was adequately equipped to take its place.83 The ps is the legal personality of the acto.84 In addition, it functions as the executive body that gives support to the political bodies of the acto.85 As such, it is auxiliary to the mmfa and acc.86 The ps was embodied with thematic departments that would strengthen activities and projects of regional cooperation. These new developments resulted, in practice, in the substitution of the special commissions for the thematic departments, which were directly within the structure of the ps. Indeed, the coordinating bodies created with the acto, linked directly to the ps, substituted the Special Commissions. While the treaty did not have its institutional structure altered, it evolved in terms of the role and functioning of its executive bodies. The Special Commissions became underutilized. The revitalization of Special Commissions was often brought up by member countries, albeit unsuccessfully. The commissions, however, encountered several difficulties in articulating policies and programs at a bigger scale, meant to complement national initiatives. Likewise, the constant need to find international funding for projects slowed the flow of projects, affecting both the continuity of projects and the effectiveness of the commissions.87 Indeed, the commissions were dependent on international sources exclusively. Some commissions, which had more appealing themes, such as environmental and health, were more successful than others. The structure of the ps can be depicted in Figure 4. As a consequence of its legal personality, the ps can legally represent the acto, sign contracts and agreements with member countries, third parties and national and international organizations, and dispose of goods and properties.88 However, this power is limited to a unanimous authorization by 83 84 85 86 87 88

83

84 85 86 87

88

David França Ribeiro de Carvalho, O Tratado de Cooperação Amazônica no Contexto dos Processos de Integração Regional: da unidade fragmentada à unidade integrada 130 (2009) (unpublished Masters thesis, puc-mg), available at www.biblioteca.pucminas.br/ teses/Direito_CarvalhoDF_1.pdf. act, Headquarter’s Agreement, art. ii. Regulation of the Permanent Secretariat of the Amazon Cooperation Treaty Organization, art. 1 (hereinafter Regulation of the Permanent Secretariat). Beatriz Garcia, supra note 31, at 109. Rodolfo Ilário da Silva, supra note 1, at 147 (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente? Unpublished Masters Thesis, Instituto Rio Branco, 2009). CCACC of Dec. 12, 2008. Regulation of the Permanent Secretariat, art. 1; 4. Headquarters’ Agreement, art. ii.

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Coordinator of Health

Figure 4

Coordinator of Indigenous Affairs

Coordinator of Transport, Infrastructure, Communication and Tourism

Coordinator of Environment

Coordinator of Science, Technology and Education

Permanent Secretariat’s structure.

member countries, which shall be given prior to any dealings. Indeed, since the ps has no supranational powers, it is dependent on specific mandates given by the mmfa and acc.89 It is therefore not autonomous but rather dependent on the political bodies. The ps is responsible for preparing, in consultation with the member states, the work plan, program of activities, and budget for the acto.90 These must be unanimously approved by the acc before becoming effective. One of the major goals of the ps is to increase the use of the act through various projects and decisions made at the mmfa and the acc. To implement the projects, the ps works through technical units at the regional and national level in order to avoid creating any additional bureaucracies. The ps can represent member states in issues related to cooperation in Amazonia. It shall promote cooperation, ensure the execution of resolutions and decisions by the mmfa and acc, present proposals for cooperation and scientific investigation to Special Commissions, as well as support the development of their programs; coordinate logistical aspects and prepare documents for the mmfa and acc meetings, among other secretarial functions.91 It shall promote the acto as a forum for the exchange, knowledge, joint protection and cooperation.92 In fulfilling its duties, the ps shall consider the recommendations of ccacc.93 89 90 91 92 93

89

90 91 92 93

Regulation of the Permanent Secretariat, art. 1. Ernesto Roessing Neto, Brasil, Bolívia, o Tratado de Cooperação Amazônica e as Hidrelétricas do Rio Madeira, Revista da Faculdade de Direito da ufmg No. 51, 80 (Jul – Dez 2007), available at http://www.direito.ufmg.br/ revista/index.php/revista/article/viewFile/51/48. Regulation of the Permanent Secretariat, art. 5. Regulation of the Permanent Secretariat, art. 5. Regulation of the Permanent Secretariat, art. 1, para. 1. Regulation of the Permanent Secretariat, art. 1, para. 2.

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The Coordination Committee of the Amazon Cooperation Council (ccacc94) The Coordination Committee of the Amazon Cooperation Council (ccacc) was created in 2000 as a result of the discussions of the ad hoc working group.95 It is the consultative and auxiliary body of the acc, and promotes intergovernmental coordination.96 Diplomatic officers of each country’s diplomatic representations in Brasília form the ccacc, and other representatives from each government might also be appointed to join the Committee.97 It is in charge of monitoring the planning, programming and execution of the ps, especially regarding budget, and evaluating the activities developed within the framework of the treaty. It also prepares the agenda of the acc meetings, evaluates its ­activities and decisions, and prepares recommendations.98 The ccacc serves as the communication and coordination channel between member countries, the pncs and the ps. It responds to consultations from the ps and makes recommendations regarding the tasks and activities to support compliance.99 There is no decision-making power, only consultative and liaison functions within the competence of the acc. In practice, the ccacc discusses issues related to the ps’s administration and personnel; including staff travel expenses, salary policies and scales, and the evaluation of vacant posts. The ccacc shall meet at least once quarterly, but in practice meets on a monthly basis.100 Since meetings are more frequent, it has provided a regular exchange of information and greater participation of Amazon countries. All Member Countries shall be present at ccacc’s sessions101 and decisions shall be adopted ­unanimously.102 Meetings are attended by members of the ACTO, ambassadors of Member States in Brazil, as well as representatives of the Brazilian chancellery. As in the acc meetings, guests may be invited to attend.103 The ps shall provide secretarial services to ccacc.104 94 95 96 97 98 99 100 101 102 103 104

94 95 96 97 98 99 100 101 102 103 104

The official acronym is ccoor. Although created in 2000, the ccacc only formally began working in 2002. Regulations for the Coordination Committee of the Amazon Cooperation Council (ccacc), art. 1 (hereinafter Regulation of the ccacc). Regulation of the ccacc, art. 2. Regulation of the ccacc, art. 3. Regulation of the ccacc, art. 3. Regulation of the ccacc, art. 4. Regulation of the ccacc, art. 5. Regulation of the ccacc, art. 6. Regulation of the ccacc, art. 9. Regulation of the ccacc, art. 7.

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Financial Mechanism and External Assistance

Since its inception, the act largely relied on external funding. The role of external cooperation was constantly acknowledged at the meetings of the act’s bodies.105 For example, at the vi acc, member countries recognized the role of international organizations or governments that provided technical and financial assistance, and as such, allowed the ACT to promote institutional strengthening and implement regional projects.106 The increasing relevance of financial contributions from third parties was constantly debated at political meetings. Amazon countries called on developed countries, private companies and regional and international non-governmental organizations, as well as multi-lateral organizations to comply with the commitments made at the 1992 unced to effectively support, with financial resources and technologies, the implementation of sustainable development projects and biodiversity conservation through the treaty, its programs and projects.107 The act particularly recognized the role of the Netherlands, fao, pnud, eu, World Bank, bid, and the gef in contributing to the development of regional cooperation.108 Specific projects often received funding from international organizations. For example, pncs were largely supported during the period. During the third phase, pncs received international financial cooperation that boosted their development. Indeed, the Support Program for Zoning of Amazonia was financed by the Interamerican Bank of Development (ibd) between 1996 and 1998. Afterwards, fao supported the program, offering technical assistance to pncs for a four-month period.109 However, the debate on institutional strengthening of the treaty ­necessarily included a conversation about a frequent contribution from Amazon ­countries themselves. Indeed, an obvious institutional weakness was the lack of permanent financial resources.110 The prospect of forming a ps required funds from the member countries, so that the act/acto did not entirely rely on 105 106 107 108 109 110

105 106 107 108 109 110

Antonio Quiroga and Jacques Marcovitch, supra note 4, at 28. act, vi mmfa, res / cca vi / 5. act, v mmfa, Declaración de Lima (1995). act, v mmfa, Declaración de Lima (1995). Rodolfo Ilário da Silva, supra note 1, at 133. Rodolfo Ilário da Silva, supra note 7, 542.

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international resources. With a more permanent structure and fixed costs, it was important to agree on steady contributions by members. While the possibility of having external funding was highlighted, both Brazil and Peru posed that steady contributions were necessary to ensure the efficacy of the ps and avoid its operational vulnerability. Therefore, together with the decision to establish a ps, the mmfa approved a financial mechanism to support regional projects.111 After the countries agreed on a financial mechanism, the second step was to clarify what it entailed, and how each country would contribute. Although it was beyond their mandate, the ad hoc working group debated the issue. Ideas and structures for the financial mechanisms were to be discussed through technical meetings.112 Bolivia, Guyana, Ecuador and Suriname highlighted their level of development in comparison with other member countries, and suggested that ­contributions be based on a scale, following the principle of proportionality.113 An initial proposal divided countries in four categories. Colombia, Venezuela and Peru argued that the country that hosted the ps should have a larger ­contribution,114 and countries pushed for a larger commitment from B ­ razil. Brazil initially suggested a responsibility of 30 percent, in addition to the initial costs regarding the headquarters and the monthly maintenance of the ps.115 As countries failed to reach a consensus on the quotas at the vi meeting, a decision was postponed to a higher level of power, either the acc or the mmfa.116 The ad hoc working group did, however, propose a total yearly amount budget that was presented to the acc.117 The budget was approved in the vi mmfa.118 With a total of US$1,139,600, the contributions were divided between Members according to the following proportions, as noted in Table 19: 111 112 113 114 115 116 117 118

111 112 113 114 115

act, v mmfa, res/v mre-tca/2. act, v mmfa, Declaración de Lima (1995). act, Ad Hoc Working Group, iv Reunión, Acta Final (Brasília, Brazil, Jan. 21–23, 1998). act, Ad Hoc Working Group, v Reunión, Acta Final (Caracas, Venezuela, Jun. 9–10, 1998). act, Ad Hoc Working Group, vi Reunión, Acta Final (Brasília, Brazil, Sep. 10–11, 1998). act, Ad Hoc Working Group, vii Reunión, Acta Final (Caracas, Venezuela, Jul. 7–8, 1999). 116 act, Ad Hoc Working Group, vii Reunión, Acta Final (Caracas, Venezuela, Jul. 7–8, 1999). 117 act, Ad Hoc Working Group, vii Reunión, Acta Final (Caracas, Venezuela, Jul. 7–8, 1999). act, x acc, Acta Final. 118 act, vi mmfa, res/vi MRE-TCA/6 (Apr. 6, 2000).

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Table 19

Financial contributions of countries (2000)119

Country Bolivia Brazil Colombia Ecuador Guyana Peru Suriname Venezuela

Percentage 6.5% 35% 16% 6.5% 2% 16% 2% 16%

It should be noted, however, that the financial mechanisms remained a liability. One of the main setbacks in setting up the ps was the time it took countries to pay their respective quotas, an issue that persisted throughout the phases of cooperation. 7.4

Environmental Agenda

The second phase of development within the act’s framework brought the environmental agenda to the center of regional cooperation. The third phase followed up on the momentum. Countries finally found their voice at the global level, and actively participated in several international meetings. scea boosted environmental protection through the development of a series of regional projects and programs, including one for the protection of forests. Projects at last started to advance. As a follow up to the 1992 unced, the national implementation of Agenda 21 became one of the main aspects of the environmental agenda of countries worldwide. While each country implemented the agenda at the national level, the act provided a complementary role by supporting the efforts regionally. Within this context, the Amazonia 21 Conference, Agenda for a Sustainable World, was organized in Brazil.120 On that occasion, proposals for national 119 120

119 act, vi mmfa, res/vi MRE-TCA/6 (Apr. 6, 2000). 120 Conferencia Amazonia 21: Una Agenda para un Mundo Sostenible, held in Brasília, Brazil (Nov. 1997).

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implementation were suggested by participating stakeholders, including ­promoting actions for physical integration of the region, the economic and cultural development of Amazonia and the harmonization of sustainable development strategies. The new ps was tasked with consolidating the positive results previously achieved, and to extend the support to sustainable development.121 The vi mmfa suggested adding a mandate to scea to periodically evaluate and monitor progress in compliance with the mandates of the unced, so as to guarantee another supervising front that maintains the validity of such postulates of the Conference, particularly those of Agenda 21.122 Indeed, the regional coordination of national efforts within the environmental context was important, and highlighted several times throughout the third phase. scea was paramount to the development of the environmental agenda. However, there were still many bureaucratic hurdles that hindered implementation of the political decisions taken by the acc and mmfa. At the ix acc, Colombia proposed a study to change the legal basis of the act in order to strengthen the process of investments in projects. New projects necessarily required an approval by the acc and the Special Commissions. These, however, met yearly at best. The infrequency of meetings obstructed achievements. The proposal would improve the frequency of meetings, leading to a faster approval process.123 Countries specifically reinforced the need for annual meetings of the special commissions. In addition, a supervisory role of national, binational and regional projects by the pts/ps was suggested, in order to ­contribute to technology transfer and improved sharing of experience  between members.124 Finally, the mmfa suggested altering the hierarchical level of participating members of the special commissions, to be c­ onducted at the vice-ministerial level, and therefore facilitate participation. While an improved structure was constantly discussed, few suggestions moved forward. Despite the bureaucracy of the organization and the slow-pace of approval of projects, the act/acto broadened their environmental agenda during the third phase. Projects specifically focused on watershed management in the A ­ mazon Basin,125 the prevention of contamination of Amazonian 121 122 123 124 125

121 act, vi mmfa, Acta Final (Apr. 6, 2000), Annex ii. 122 act, vi mmfa, Acta Final (Annex ii). 123 act, ix acc, Acta Final. act, ix acc, res/ix CCA-TCA/8 (Oct. 7, 1998). act, x acc, Acta Final. 124 act, viii acc, res viii CCA/4 (Mar. 11, 1997). 125 act, xi acc, Acta Final.

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­watersheds,126 on regional cooperation in technology transfer,127 the protection of genetic resources, traditional knowledge, intellectual property rights and the development of an international regime to regulate access to genetic material.128 The issue of traditional knowledge within the region and the role of indigenous people were particularly highlighted.129 Other initiatives included the development of a regional methodology for economic-ecological zoning and monitoring of changes in land use.130 In addition, scea had a significant role in compiling information from Amazon countries. The goal was to develop a regional system of information with national inventories that would integrate the countries and promote information sharing and technology transfer. The database would include development rates, information on biological diversity and natural resources, and inventory of national and binational projects within the framework of the treaty.131 While some of those moved forward, information is not readily available, and access to the acto’s database is often challenging. In addition, these were rarely updated. The project entitled Action for a Sustainable Amazon was developed by the act along with the gef and fao. It had the goal of involving Amazon countries in the discussion and research on regional sustainable development and to support the development of the capacities of local institutions to lead the countries towards sustainability. It specifically considered policies and institutional relationships necessary to reduce deforestation and biodiversity loss in the Amazon Basin.132 It encompassed three groups of activities: (i) national policy analysis and consultations through participatory dialogue and case 126 127 128 129 130 131 132

126 act, Declaración de Lima. 127 act, Secretaria Pro Tempore, Propuesta de Fortalecimiento Institucional y Transferencia Tecnológica, available at http://otca.info/portal/admin/_upload/publicacoes/SPT-TCA -VEN-62.pdf. 128 act, vii mmfa, Declaración de Santa Cruz de la Sierra (Nov. 21, 2002). Inspired by the meeting of Cuzco on Allied Megadiverse Countries (29 November 2002) / Países Megadiversos Afines (Nov. 29, 2002). 129 act, vii mmfa, Declaración de Santa Cruz de la Sierra (Nov. 21, 2002). 130 Proyecto GCP/RLA/118/NET; Proyecto GCP/RLA/128/NET. 131 fao, Apoyo Al Fortalecimiento De La Secretaria Pro Tempore Del Tratado De Cooperacion Amazonica Resultados Y Recomendaciones Del Proyecto Secretaria Pro Tempore Del tca, Informe preparado para la Secretería Pro Tempore del Tratado de Cooperación Amazónica por la Organización de las Naciones Unidas para la Agricultura y la Alimentación (1998), available at http://www.fao.org/docrep/field/381313.htm#P187-31201. 132 Id. Proyecto fao GCP/RLA/118/NET.

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studies; (ii) regional technical work groups; and, (iii) training for sustainable development.133 The agenda on forests was widely developed. Member countries recommended the expansion of an agenda for cooperation in forest matters, with a particular focus on information sharing.134 Several projects focused on forest protection. For example, member countries highlighted the need to reinforce the Declaration of Huaraz on Sustainable Development of Mountain Ecosystems,135 and its connection to climate change and the melting of glaciers in the Andes.136 In addition, the act/acto’s bodies raised attention to the illicit activities in Amazonia, especially related to drug trafficking, illegal agriculture and mining, deforestation and biopiracy.137 Three specific forest-related projects developed during the period are highlighted here, namely: (i) the Tarapoto Process on Criteria and Indicators of Sustainability of the Amazon Forest, (ii) the Pucallpa Proposal, and (iii) the Conservation and Use of Wildlife in Protected Areas.138 These will be analyzed below. The Tarapoto Proposal139 The 1992 unced raised attention to the need to establish criteria to define the sustainability of forests, and obtain indicators to evaluate and monitor their state.140 As a result, nine processes were initiated around the world.141 The main goal was to support the monitoring of the changes in the condition and output of goods and services from forests and to help in the definition of

133 134 135 136 137 138 139 140 141

133 fao, Boletin Informativo No. 5, 3, available at http://www.nzdl.org/gsdlmod?e=d-00000 -00---off-0fi1998--00-0----0-10-0---0---0direct-10---4-------0-1l--11-en-50---20-about---00-0-1 -00-0--4----0-0-11-10-0utfZz-8-00&a=d&c=fi1998&cl=CL1.21&d=HASH01bb04366c43ccea19 787d6c. 134 act, ix acc, Acta Final. res/ix CCA-TCA/1 (Oct. 7, 1998). 135 Declaration of Huaraz on Sustainable Development of Mountain Ecosystems (Jun. 14, 2002), available at http://mountainlex.alpconv.org/images/documents/international/ huaraz_declaration.pdf. 136 act, vii mmfa, Declaración de Santa Cruz de la Sierra (Nov. 21, 2002). 137 act, vi mmfa, Declaración de Caracas (Apr. 2000). 138 See next section. 139 Until 2002 the process was called “Tarapoto Proposal”, it became “Tarapoto Process” with the Resolution res/vii MRETCA/7 of November 2002. See act, supra note 3, at 161–162. 140 Enrique Elías, The Tarapoto Process: establishing criteria and indicators for the sustainable management of Amazon forests in 55 Unasylva 218, 48–49 (2004), available at ftp://ftp.fao .org/docrep/fao/007/y5841e/y5841e13.pdf. 141 Siu Lang Carrillo Yap, Comparative analysis of the legal aspects of the Tarapoto Process and the Helsinki Process in iufro, Legal Aspects of European Forest Sustainable

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s­ ustainable forest management. The then pts launched a regional process at the First Regional Meeting on Criteria and Indicators of Amazon Forest Sustainability, organized in Tarapoto, Peru, in 1995. The meeting was attended by representatives and forest policy-makers from the eight member countries, as well as experts from international institutions such as fao, the main ally in the process, the Global Environment Facility (gef), the United Nations Development Programme (undp) and the World Resources Institute (wri).142 The Tarapoto Process can be divided into two phases.143 The first phase, which developed over the course of the third phase of Amazonian cooperation, represents the process of obtaining the criteria and indicators, and can be summarized in Table 20. The second phase corresponds to the fourth period of Amazonian cooperation, will be analyzed in the next chapter. Table 20

Phase 1 of the Tarapoto Proposal (1995–2002)144

Date

Development

1995

First Regional Meeting on Criteria and Indicators of Amazon Forest Sustainability Tarapoto Proposal about Criteria and Indicators for the Sustainability of the Amazonian Forest145 v mmfa: Resolution No. res/v MRE-TCA/6 promotes the adoption of a regional document about Criteria and Indicators for the Sustainability of the Amazonian Forest.146

1995

142 143 144 145 146

142 143 144 145

146

­Development (May 2011), available at https://www.academia.edu/8406627/Comparative_ analysis_of_the_legal_aspects_of_the_Tarapoto_Process_and_the_Helsinki_Process. P. 129. These include the itto Process, launched in 1992, the Pan-European Forest Process or Helsinki Process, launched in 1994, the Montreal Process, the Tarapoto Process, and the Dry-Zone African Process, launched in 1995, the ato (African Timber Organization) Process and the Near East Process, launched in 1996, the Lepaterique Process of Central America, launched in 1997, and the Dry Forests in Asia Initiative, launched in 1999. Enrique Elías supra note 140, also available at http://www.fao.org/docrep/007/y5841e/ y5841e12.htm. Siu Lang Carrillo Yap, supra note 141, at 131. Id., at 131–132. Secretaría Pro Tempore del Tratado de Cooperación Amazónica (1995): Propuesta de Tarapoto sobre criterios e indicadores de sostenibilidad del bosque amazónico. Lima – Perú: Secretaría Pro Tempore del Tratado de Cooperación Amazónica. Available at http:// www.otca.info/portal/admin/_upload/publicacoes/SPT-TCA-PER-29.pdf. Secretaría Pro Tempore del Tratado de Cooperación Amazónica (2002): Base jurídica del Tratado de Cooperación Amazónica. Antecedentes constitutivos de la O ­ rganización

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Date

Development

1996–2000

National consultations for selecting the criteria and indicators adequate to the countries that participated in the proposal. Second regional meeting147 prioritized the 15 indicators that the countries should validate. vii mmfa: Resolution No. res/vii MRE-TCA/7 formally initiates the Tarapoto Process.148

2001 2002

The pts started the task of identifying criteria and indicators of forest sustainability, with a view to reconciling it with optimum use of natural resources of Amazon forests.149 Through the experiences of the other processes under development worldwide, the pts noted the importance of taking into account the differences between the Amazon and other regions, as well as the region’s legal frameworks, structures and institutional capacities.150 The first meeting identified 12 criteria and 77 indicators that defined forest sustainability in Amazonia.151 These were divided into three categories: national level, management and service unit level, which represents the contribution of the Amazonian forest to the sustainability in the world, and global level.152 The Tarapoto Proposal was officially supported by the act at the v mmfa.153 In the Lima Declaration, the ministers underlined the progress achieved so far, 147 148 149 150 151 152 153

147

148

149 150 151

152 153

del Tratado de Cooperación Amazónica – otca-. La Paz – Bolivia: Producciones Cima at 93. Available at http://www.otca.info/portal/admin/_upload/publicacoes/ SPT-TCA-BOL-SN_BJ.pdf. Secretaría Pro Tempore del Tratado de Cooperación Amazónica (2001): Proceso de Tarapoto sobre criterios e indicadores de sostenibilidad del bosque amazónico. Memorias de la reunión regional realizada en Tarapoto – Perú. 21, 22 y 23 de junio de 2001. La Paz – Bolivia: Producciones cima. Secretaría Pro Tempore del Tratado de Cooperación Amazónica (2002): Base jurídica del Tratado de Cooperación Amazónica. Antecedentes constitutivos de la Organización del Tratado de Cooperación Amazónica – otca-. La Paz – Bolivia: Producciones Cima. Available at http://www.otca.info/portal/admin/_upload/publicacoes/SPT-TCA-BOLSN_BJ.pdf. Pages 161–162. Enrique Elías, supra note 140, at 49. Enrique Elías, supra note 140, at 49. Secretaría Pro Tempore del Tratado de Cooperación Amazónica (2001): Proceso de Tarapoto sobre criterios e indicadores de sostenibilidad del bosque amazónico. Memorias de la reunión regional realizada en Tarapoto – Perú. 21, 22 y 23 de junio de 2001. La Paz – Bolivia: Producciones cima. Page 114. Enrique Elías, supra note 140. res/v MRE-TCA/6, v mmfa, Dec. 4–5, 1995.

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and promoted the adoption of a regional document to continue the Tarapoto Process. The idea was to design plans and strategies for forest conservation, and the improvement of lands in the region, according to the use and ­management of sustainable forestry by relevant stakeholders.154 On the basis of this mandate, the Tarapoto Proposal underwent a broad process of e­ valuation in each Amazon country during the following five years. In order to achieve consensus on the indicators the act held ample national consultations. The national consultations served a multitude of purposes, and targeted improvements in the legal and institutional frameworks of member countries, in public participation, and science and technology. The consultations allowed for the study of the legal and institutional frameworks to promote sustainable forest development. Through broad standards, the indicators harmonized environmental legislation, and forest law in particular, as well as policy proposals. These, in turn, were more easily comparable. The process identified institutional capacities, in addition to gaps and challenges at the public and private sectors. It identified the need to establish participation processes involving the civil society. In addition, it recognized the need to establish scientific and technical mechanisms and procedures for gathering, systematizing and analyzing the information required to make informed decisions. It ensured the applicability of indicators, as they were based on the specific circumstances of each country. Finally, it discussed the relevant elements of the Amazon forest’s sustainability and the level of integration of various indicators to evaluate a criterion.155 Between December 1996 and June 2000, national consultations were carried out in the eight Amazon countries, as shown in Table 21. The national ­consultations involved a total of 351 institutions and 830 participants from all sectors, including authorities, researchers and leaders of indigenous communities.156

154 155 156

154 act, Declaración de Lima, approved by the v mmfa (Dec. 5, 1995), available at http://www.otca.info/portal/admin/_upload/publicacoes/SPT-TCA-BOL-SN_BJ.pdf, pp. 96–100. 155 M. Sanchez, Tarapoto Process on the Amazon Forest’s Sustainability Criteria and Indicators International Expert Meeting on Monitoring, Assessment and Reporting on the Progress Toward Sustainable Forest Management 5–8 November 2001, Yokohama, Japan, available at http://www.rinya.maff.go.jp/mar/Mr.%20Sanchez%20Paper.pdf. 156 These were conducted with the financial support of the Government of Finland and the technical support of fao.

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National consultations conducted in the Tarapoto Process157

Country

City

Date

Colombia

Ecuador Peru158

Leticia Mocoa Florencia Bogotá Quito Iquitos

Bolivia159

Cochabamba

Venezuela160

Mérida Barquisimeto Ciudad Bolívar Caracas

Suriname Guyana

Paramaribo Georgetown

Nov. 25, 1996 3 Dec. 2, 1996 Dec. 2, 1996 Dec. 16, 1996 Jan. 27 and 28, 1997 Jan.29 through 31, 1997 Jun. 17 through 19, 1997 Jul. 4, 1997 Jul.11, 1997 Jul.18, 1997 Jul.28 through 30, 1997 Feb. 11 and 12, 1999 Feb.15 and 16, 1999

Brazil

Belem Manaus

Rio Branco TOTAL

Brasilia

Feb.28 and 29, 2000 Mar. 30 and 31, 2000 Apr. 19 and 20, 2000 Jun. 13, 2000

N° of N° of Institutions Participants 12 10 15 17 34 25

27 22 34 38 64 58

32

51

17 14 18 15

65 59 66 54

25 35

51 53

30 13

70 28

21

38

18

52

351

830

157 158 159 160

157 M. Sanchez, supra note 155, at 2–3. 158 Proceso De Tarapoto Sobre Criterios E Indicadores De Sostenibilidad Del Bosque Amazónico, Perú. Ministerio de Relaciones Exteriores. Comisión Nacional Permanente del Perú Tratado de Cooperación Amazónica, Lima, 1997. Available at http://sisbib .unmsm.edu.pe/bvmedioambiente/libros/proceso%20de%20Tarapoto.htm. 159 Tratado de Cooperacion Amazonica, Proceso de Tarapoto sobre Criterios e Indicadores de Sostenibilidad del Bosque Amazonico, Consulta Boliviana de Validación (Jul. 1997), available at http://www.otca.info/portal/admin/_upload/publicacoes/SPT-TCA-PER-SNvalidacion_boliviana.pdf. 160 Tratado de Cooperacion Amazonica, Proceso de Tarapoto sobre Criterios e Indicadores de Sostenibilidad del Bosque Amazonico, Consulta Venezuelana de Validación,­

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After the evaluation phase was concluded, the pts consolidated the national reports into a single document to be revised at a second regional meeting in Tarapoto in 2001.161 At the second meeting, countries agreed to formally begin the Tarapoto Process. Amazon countries selected and prioritized the criteria and indicators contained in the original 1995 proposal, according to the degree of consensus and perceived applicability of those at the national level.162 Fifteen indicators were selected, corresponding to eight criteria that were chosen as priority. At the xi acc, the pts presented the proposal for the Validation of 15 Priority Indicators for Sustainability of Amazon Forests.163 The proposal was unanimously approved. The Tarapoto Process was officially initiated at the vii mmfa.164 These regional criteria for sustainability would be validated in a regional project during the second phase of the Tarapoto Process.165 The Pucallpa Proposal One of the main underinvestigated issues in Amazonia was the sustainable development of secondary forests. These had been growing considerably due to the population dynamics, technological, economic, social, political, and regulatory constraints to proper managing, bringing around 160 million hectares of secondary forests in Latin America.166 Secondary forests in Amazonia were mostly degraded by agriculture and cattle ranching, and their protection is essential to reducing deforestation.167 Indeed, these are important for rural development, biological conservation, the restoration of site productivity and relieved pressure on undisturbed forests.168 161 162 163 164 165 166 167 168

161 162 163 164

165 166

167 168

available at http://otca.info/portal/admin/_upload/publicacoes/SPT-TCA-VEN-SN-validacion_venezolana.pdf. Enrique Elías, supra note 140, at 49. Enrique Elías, supra note 140, at 49. xi Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final. xi Reunión Ordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final. res/vii MRE-TCA/7. vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii). fao, tca, et al., The Pucallpa proposal for the sustainable development of Secondary Forests in Tropical America, 37 (Expertisecentrum lnv, Jul. 2013), available at http://edepot .wur.nl/144687. Id., at 1. Id at 31.

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In order to address the gap in information about secondary forests, a series of workshops were conducted in tropical countries in 1997.169 These had the goal to better understand the situation and importance of the world’s tropical secondary forests, to formulate strategies and priorities to improve their sustainable management, and identify national actions and international support required for cooperation.170 The first workshop took place in Pucallpa, Peru, and represented a collaboration between the act and the Centroamerican Counsel on Forests and Protected Areas.171 Over 60 experts from 18 countries attended the workshop. As a result, the Pucallpa Proposal was developed, which focused on the sustainable development of secondary forests in Tropical America, based on the guidelines of Chapter 11 of Agenda 21.172 The proposal discussed the intrinsic connection between social development of rural communities and the protection of forests in Amazonia. It raised attention to the role of regenerated forests as a permanent source of value for rural populations and the conservation of renewable natural resources, and noted the need to implement efficient forest policies for the sustainable management of secondary forests. The study highlighted the challenges of implementation of sustainable management methodologies due to the economic role of secondary forests for rural communities.173 It investigated the national scenario of Amazon countries, and analyzed how to implement the 169 170 171 172 173

169 Id. A sequence of similar regional workshops were held respectively in Samarinda, Indonesia (April 2000) for Tropical Asia, Nairobi, Kenya (December 2002) for Anglophone African countries, and Douala, Cameroon (due in November 2003) for Francophone African Countries. 170 Id. The workshops have been a collaborative effort in which various national bodies, both governmental and non-governmental, and international organizations, including fao, cifor, itto, iucn and the World Agroforestry Centre (icraf), have participated. The Governments of Germany and the Netherlands have been the main sponsors of the process. The Expertisecentrum lnv of the Netherlands has been involved from the beginning, providing conceptual and process support in all stages. 171 International Workshop on the Current and Potential State of Management and Development of Secondary Tropical Forests in Latin America, held in Pucallpa, Peru, from June 2–6, 1997. Consejo Centroamericano de Bosques y Areas Protegidas (ccab-ap). 172 Propuesta de Pucallpa. With financial resources from fao, gtz, ikc Natuurbeheer, and the Netherlands. act, Secretaria Pro Tempore, Estrategia para Implementar las Recomendaciones de la Propuesta de Pucallpa sobre el Desarrollo Sostenible del Bosque ­Secundario en la Region Amazonica (Sep. 1999), available at http://www.otca.info/portal/ admin/_upload/publicacoes/SPT-TCA-VEN-71.pdf. 173 Id., at 3–7.

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r­ ecommendations at the national level. Indeed, a series of recommendations were presented at the political-institutional, socio-economic, and technological level.174 Initiatives in Protected Areas The Latin American Network for Technical Cooperation in National Parks, Other Protected Areas, Wildlife and Flora (REDPARQUES) was created in 1983 by the countries of the region with the support of fao.175 Its creation was due to the need to progress in the management of protected areas in Latin America and the willingness of countries to share more effectively the expertise and experiences available in the region.176 In 1991, the Sub-network of Protected Areas of the Amazon Region (surapa)177 was created, with the purpose of contributing to the conservation of the Amazon Region, and integrating cooperation policies regarding investigation and evaluation of resources. This Subnetwork is composed of 6 out of 8 of the act countries, namely Peru, Bolivia, Brazil, Ecuador, Colombia, and Venezuela.178 fao developed a series of activities regarding protected areas in Amazonia, focused on identifying their status and revise the management policies.179 Based on the work developed by fao, and surapa specifically, scea developed the Regional Program on Planning and Management of Protected Areas in the Amazon Region.180 Between 1993 and 1997, the regional project entitled Planning and Management of Protected Areas of the Amazon was implemented. It had the support of fao and the European Union. The project was a pilot experience of regional cooperation in Amazonia. It was based on Amazonian protected areas, and on the creation and experimentation of 174 175 176 177 178 179 180

174 Id. 175 Red Latinoamericana de Cooperación Técnica en Parques Nacionales, otras Areas Protegidas, Flora y Fauna Silvestres (REDPARQUES). 176 Redparques, ¿QUIÉNES SOMOS?, (2015), available at http://redparques.com/quienes -somos/#historia. 177 Subred de Areas Protegidas del Amazonas (surapa). 178 Redparques, mapas, (2015), available at http://redparques.com/mapas/. 179 “Políticas, Estrategias, y Acciones para la Conservación de la Diversidad Biológica en los Sistemas Amazónicos de Areas Protegidas”, “Uso y Conservación de la Fauna Silvestre en los Países de la Cuenca del Amazonas”, Proyecto sobre Manejo de Areas Protegidas de la Amazonia (Unión Europea-TCA). 180 Programa Regional de Planificación y Manejo de Areas Protegidas de la Región Amazónica. Proyecto de « Planificación y Manejo de Áreas Protegidas de la Amazonia » ue / tca / fao (1993–1997).

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operational mechanisms of regional cooperation.181 The project had the goal of establishing the consistency in the planning and management of protected areas in Amazonian countries. The project sought to strengthen regional and national capacities for the management of protected areas. For the first time, the eight Amazon countries contributed to strengthen the integral and sustainable use of renewable natural resources; conserving biodiversity and environmental balance; and improving the socioeconomic conditions of the inhabitants of the protected areas of the Amazon. The countries chose eleven protected areas representative of ecosystems and the challenges faced in Amazonia to design and implement methodologies for conservation and improvement of the quality of life of their communities.182 It allowed for the development of a set of documents (studies, strategies, publications and manuals) and exchange processes (meetings, workshops and exchanges) within the framework of the surapa. The project directly 181 182

181 Richard Pasquis – cirad, Documento orientador para un Programa Panamazónico de Áreas Protegidas (Nov. 2005) at page 3, available at http://www.otca.info/biodiversidade/ 2009/publico/_arquivos/File/Documento%20Panamaz%C3%B3nico%20AP%20(Richard%20Pasquis).pdf. 182 Bolivia: Community management programs with the indigenous peoples of the Isiboro Sécure National Park and Indigenous Territory.  Brazil: Recent signing of operating agreements, the first steps are taken in selected parks.  Colombia: Strengthening program for community management and training in the Amacayacu Natural National Park and in the Cahuinarí National Natural Park; Planning the scientific expedition to the Serrania de Chiribiquete National Park.  Ecuador: Elaboration of basic participatory mapping for the development of the Management Plan in Yasuní National Park.  Peru: Sponsorship of a strategy to implement a Plan for Management and Use of Tourism in the Reserved Zone and Manu National Park; Support to the Tambopata Candamo National Park; Habilitation of the Alto Huallaga, of great problematic by the existence of illicit cultures of psychotropics; And prevention of logging in the Río Abiseo National Park.  Suriname and Guyana: Technical support in the creation and implementation of national systems of protected areas.  Venezuela: Extension of the representativeness of ecosystems with the provision of ­infrastructure and administrative strengthening in the Serrania de la Neblina National Park. fao, Boletin No. 9, Amazonia: Planificación y manejo de áreas protegidas (1998),   available at http://www.nzdl.org/gsdlmod?e=d-00000-00---off-0fi1998--00-0----0-10-0---0--0direct-10---4-------0-1l--11-en-50---20-about---00-0-1-00-0--4----0-0-11-10-0utfZz-8-00&a=d &c=fi1998&cl=CL1.1&d=HASHa79ea7c90befbbea14ae72.

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s­upported protected areas identified as pilot projects, seeking consistency in  planning and management of protected areas among Amazonian countries.183 After the first phase of the project was developed, fao suggested a second phase, which would establish an Amazonian System for Protected Areas.184 At the v scea meeting, countries highlighted the results achieved in the framework, and manifested their interest in moving towards a second stage. However, the regional process ended by a decision from the donors, which were dissatisfied with the weaknesses of the act, specifically the temporary structure of the pts, and the limited institutional development achieved so far.185 The project was thus a concrete example of how the weak structure hindered the development of specific projects. Several reasons, including the poor institutional development achieved by the Treaty until then, led to the completion of the project in 1997. By analyzing the results of the initiatives conducted by fao, the act identified a gap regarding wildlife reserves, a protected area less known and studied. As a result, it developed a project to provide a diagnostic of protected areas in Amazonia dedicated to the conservation and sustainable use of wildlife, and the exchange of successful experiences within this context. The study developed policies that could be used as references in Amazonia.186 Unified Voice of Amazon Countries at the International Level The institutional changes that characterized the third phase of development were accompanied by renewed commitments from member countries, especially with regards to environmental protection. Amazon countries soon realized the strategic role of the act/acto of promoting regional coordination at the international level. Indeed, a unified voice in international forums was a successful mechanism to promote environmental protection and reinforce regional cooperation. 183 184 185 186

183 otca, Proyecto atn/OC-9251-RG, Fortalecimiento de la Gestión Regional Conjunta para el Aprovechamiento Sostenible de la Biodiversidad Amazónica, Programa Regional para Gestión Sostenible de las Áreas Protegidas Amazonicas, Propuesta Preliminar (May 2007), available at http://www.otca.info/biodiversidade/2009/publico/_arquivos/File/ GSANPAMAZONICAS/PROPUESTA%20PRESENTADA%20PROGRAMA%20REGIONAL %20APs%20GSFreitas.pdf. 184 fao, supra note 131. Sistema de Areas Protegidas Amazónicas (sapa). 185 Id., at 3. 186 1999: Conservación y Uso de la Fauna Silvestre en Áreas Protegidas de la Amazonía (04 DE JULIO, 1999), available at http://otca.pagina-oficial.com/assets/documents/20160704/3ea 0a83a748f5be8439ef88fef1a02b6.pdf.

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Building on the success of the 1992 unced, the act/acto was perceive as the most appropriate forum for discussion on international environmental issues. Based on the significance of coordinated positions, both the acc and mmfa emphasized the role of the ACT as a unified voice several times throughout the period.187 At the vi acc, the practice of organizing a common view by the act was formalized. The acc encouraged regular diplomatic consultations and political coordination between the member parties on issues of common interest concerning the Amazon region.188 The coordination was originally entrusted upon the host country of the pts,189 and was later supported by consultations by the ps.190 The mmfa Caracas Declaration highlighted the strategic role of serving countries as a platform for the defense of their common interests and consolidating regional positions on international environmental issues and development agenda.191 For the first time, there was a precise reference to regional integration, and the act’s role in the integration process in the region and its link to international economy.192 The “joint foreign policy” agenda by Amazon countries became a staple during the third phase of cooperation.193 For example, the Declaration of the Amazonian Countries, adopted during the preparatory meeting in Bali, provided a unified spokesperson ahead of the Summit of the Americas on Sustainable Development held in Bolivia in 1996.194 As a result, the act was fully supported by the Summit in the Declaration of Santa Cruz de la Sierra.195 The pts 187 188 189 190 191 192 193 194 195

187 See xi acc, vi mmfa, vii mmfa. vii Reunión Ordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final. 188 res / cca vi / 6. 189 res / cca vi / 6. 190 vii Reunión Ordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final. 191 act, vi mmfa, Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Declaración de Caracas. 192 Antonio Quiroga and Jacques Marcovitch, supra note 4, at xx. 193 Id. 194 Id., at 27. See Summits of the Americas, Secretariat, Summit on Sustainable Development: Santa Cruz de la Sierra, Bolivia, December 7–8, 1996, available at http://www.summit -americas.org/summit_sd.html. 195 Summit of the Americas on Sustainable Development, Declaration of Santa Cruz de la Sierra (Dec. 7–8, 1996), available at http://www.summit-americas.org/summit_sd/ summit_sd_dec_en.pdf.

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participated in a series of international meetings on behalf of the act.196 The commitment of countries led to a high impact during the period, especially in terms of the adoption of the cbd, the exchange of technological information, and ensuring sovereignty over genetic resources. In addition, through the treaty, a regional position was achieved on forests, in the iff and cites.197 Other opportunities for a coordinated position from the acto on global environmental issues included the 2003 World Water Forum to be celebrated in Kyoto,198 the development of the Clean Development Mechanism (cdm) contemplated in the Kyoto Protocol,199 the Hemispheric Meeting on Sustainable Development, to be held in Bolivia in 2005, focused on the implementation of Agenda 21,200 and the need for external financial flow to facilitate sustainable development in developing countries at the Rio+10 Conference in Johannesburg.201 The mmfa specifically required a revision of the regional position to be presented at Rio+10, identifying the progress and challenges of the act/acto.202 Finally, the mmfas became a forum to enforce the need for Amazon countries to adopt international treaties. Specifically, it noted the need to accede to the Cartagena Protocol on Biosafety, in order to control the transboundary movements of gmos with negative effects on human security and the environment.203 The above reference illustrates an emphasis on defining the political and economic environment of the act/acto, whose regional feature is the process of creating networks of interdependence and integration among the countries of the region. This does not mean that Amazon’s own agenda dilutes within broad themes of the subregional integration agenda, but look ­positively 196 197 198 199 200 201 202 203

196 See act, Informe de Actividades de la spt 2000–2002, 52, available at http://www.otca .info/portal/admin/_upload/publicacoes/SPT-TCA-BOL-SN.pdf. 197 vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii). 198 act, vii mmfa, Declaración de Santa Cruz de la Sierra (Nov. 21, 2002). 199 act, vi mmfa, Declaración de Caracas (Apr. 2000). 200 xi mmfa, res/vii MRE-TCA/6. xi mmfa, Declaración de Santa Cruz de la Sierra (Nov. 21, 2002). 201 res/vii MRE-TCA/3 (Nov. 22, 2002). res / vi mre-tca / 5. 202 res/vi MRE-TCA/5 (Apr. 6, 2000). 203 vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de  Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii).

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r­einforced and supplemented by this process.204 An option to increase the global role of the act was to request an observer status for the acto at the un, on matters related to the treaty’s goals. This would facilitate articulated positions between members.205 However, there is no information on whether the acto pursued or managed to secure observer status at the un. 7.5

Developments in International Forest Law

The third period of cooperation between Amazon countries was concomitant to increased efforts in forest protection at the international level. At the same time, further challenges were presented with attempts to successfully merge free trade principles with sustainable forest management concerns, all while navigating sovereignty and other concerns at the national level. Interest groups often found themselves at loggerheads over proper research methodologies, policies, and financial development mechanisms, hindering consensus. Notably, the International Panel on Forests (ipf) and its successor, the International Forum on Forests (iff), were unable to come to agreement on many issues, the dialogue continuing between different iterations of the original participants. This period, however, also saw an increase in regional agreements and collaboration, as well as recognition of the changing nature of the interplay between sustainable development, trade, and conservation of forests. The expansion and delegation of the Action Items of the post-Rio agenda to discrete bodies comprised of members of larger international organizations charactered implementation. The Kyoto Protocol brought forest discussions to the climate change agenda, injecting these concerns into overall policymaking. Ultimately, the international conversation was expanding in breadth as well as depth, with large organizations making provisions for this increasingly variegated landscape. itto Revised Timber Agreement (itta) The 1994 itto Revised Timber Agreement (itta) was the international treaty operated by the itto between January 1, 1997 and December 6, 2011.206 204 205 206

204 Antonio Quiroga and Jacques Marcovitch, supra note 4, at xx. 205 vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii). 206 International Tropical Timber Agreement, Doc. td/TIMBER.2/16 (Jan. 26, 1994), available at http://www.itto.int/itta/.

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A r­e-enactment of the original 1983 Agreement, it controlled the terms of ­international trade in tropical timber, and promised to provide a new legal framework for meshing trade with conservation.207 The itto included 6A ­ mazon countries, namely Brazil, Colombia, Ecuador, Guyana, Peru, and Suriname. It also collaborates with many organizations that implement ­sustainable  forest management, including the Collaborative Partnership on Forests, the Convention on Biological Diversity, iufro, the iucn, and the fao.208 Structurally, the 1994 itta separated timber producers from consumers, featuring a trade-off between the two groups, consisting of “environmentally sound use of their forests in exchange for technical and financial support from consumers.”209 However, the agreement was limited by several challenges that hindered its potential efficacy. Notably, the states’ sovereignty over natural resources, reinforced in the agreement, provided a practical challenge to regulation.210 Despite inducing the trade-off between trade and conservation, the agreement failed to define sustainable development.211 Additional tensions were also observed, as the environmental basis was inconsistent with general trade principles in international agreements.212

Post-Rio Policy Processes of the Intergovernmental Panel on Forests (ipf) and the Intergovernmental Forum on Forests (iff) In 1995, as a response to the failure to adopt a legally binding international forest convention, the un Commission on Sustainable Development established the ad hoc Intergovernmental Panel on Forests (ipf) for a two-year period (1995–97). This Panel’s mandate was to provide an open-ended forum

207 208 209 210 211 212

207 Philip E. Wilson, Jr., Barking Up The Right Tree: Proposals for Enhancing the Effectiveness of the International Tropical Timber Agreement, 10 Temp. Int’l & Comp. L.J. at 231–233 (1996). 208 International Tropical Timber Organization, Links to Partners, available at http://www .itto.int/partnerships_link/. 209 Id. at 232–233. 210 Id. at 233. Wilson contrasts this with regulating “readily-measurable transnational damage” of airborne pollutants. Although the awareness of the transnational nature of timber harvesting was something the Agreement was constructed with an eye towards, the sovereignty issue complicates this in a way in which the regulation of pollutants impacting the “global commons” is not impacted. 211 Id. at 241. 212 Id. at 234 (observing that the conservation principles of the 1994 itta run counter to general trade agreements such as gaap, which “subordinate[s] environmental protection to state sovereignty and free trade.”).

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for ­various forest policy deliberations.213 Upon expiration of the ipf in 1997, the Committee established the International Forum on Forests (iff) for three years (1997–2000) to continue the dialogue. Both represented intergovernmental forums for international forest policy development. The ipf and iff represented five years of international forest policy dialogue; these fora took the attention away from fao, which had until then the international forest mandate.214 Intergovernmental Panel on Forests: 1995–1997 The first meeting of the ipf took place in New York in September 1995. The ipf, however, immediately hit a roadblock as members of the G-77215 were “resistant to any proposal that could foreseeably lead to a loss of national control over forests and forest products”.216 Indeed, they were concerned about the methods of forest assessment, including criteria and indicators.217 The second session was held in March 1996 in Geneva, where the various members of the Panel discussed possible methodologies for sustainable forest management, with the u.s. admonishing the panel to “[b]ear in mind that countries vary greatly in type, management, and ownership of forests, and said success would depend upon appreciating these differences while seeking common ground.”218 Canada added a reminder of the relationship of the Panel to the cbd, stating “biodiversity is intrinsically contained in many of the ipf’s programme elements.”219 213 214 215 216 217 218 219

213 See Earth Negotiations Bulletin, A Brief History of the ipf, available at http://www.iisd .ca/forestry/ipfhist.html, (describing the ipf’s mandate as “to pursue consensus and coordinated proposals for action to support the management, conservation, and sustainable development of forests.”). 214 Anja Eikermann, Forests in International Law: Is There Really a need for an International Forest Convention? 36 (2015). 215 The G-77 is the largest intergovernmental organization of developing countries in the un, and “provides the means for countries of the South to articulate and promote their collective economic interests and enhance their joint negotiating capacity on all major international economic issues within the United Nations system, and promote SouthSouth cooperation for development.” From The Group of 77, available at http://www.g77 .org/doc/. 216 Earth Negotiations Bulletin, A Brief History of the ipf, available at http://www.iisd.ca/ vol13/1314002e.html. 217 Id. 218 Earth Negotiations Bulletin, Report of the Second Session, available at http://www.iisd .ca/vol13/1314003e.html. 219 Id.

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At this session, the documents express a wide variety of consensus opinions relating to Programme Element I.1: National Forest and Land-Use Planning. Brazil expressed the inadequacies of centralized planning, while the G-77/ China expressed both the need to consider historical context of planning in developing countries, and added references to regional planning and the impact of international trade and market forces.220 The subsequent discussion of Programme Element I.2: Underlying Causes of Deforestation, introduced further facets of national opinions on “poverty, land-tenure, agricultural pressures, international market forces, international agreements, and recommended actions”.221 The “asymmetric deadlock” was becoming evident. To implement all of the elements of the Programme, an informal, high level Interagency Task Force on Forests (itff) was set up in July 1997 with the mandate of “coordinat[ing] the inputs of international organizations to the forest policy process” and support the work of the ipf.222 The itff prepared an implementation plan to coordinate the ipf’s action involving international organizations. It was made up of eight international organizations, including the cbd,223 who was the lead agency for Programme I.3 “Traditional ForestRelated Knowledge” and played a significant role in how such traditional knowledge could contribute to sustainable forest management.224 The Collaborative Partnership on Forests (cfp), established later in 2001, is based on the itff’s six-year experience “building intergovernmental consensus towards management, conservation, and sustainable development of all types of forests based on the Rio results.”225 At the conclusion of the ipf’s two-year mandate, several proposals related to sustainable forest management had been negotiated. However, some m ­ atters 220 221 222 223 224 225

220 Id. 221 Id. 222 Inter-agency Partnership on Forests: Implementation of the ipf Proposals For Action by the itff, E/CN. 17/1997/12, available at www.un.org/esa/forests/pdf/ipf-iff-­proposals foraction.pdf. 223 Other member organizations included The Center for International Forestry Research (cifor); the Food and Agriculture Organization of the u.n. (fao); the itto, the United Nations Department for Policy Coordination and Sustainable Development (dpscsd), the United Nations Development Programme (undp); the United Nations Environment Programme (unep), and the World Bank. Lauren E. Eastwood, The Social Organization of Policy: An Institutional Ethnography of un Forest Deliberations at 49 (2005). 224 Richard Tarasovsky Assessing the International Forest Regime, iucn Environmental Policy and Law Paper No. 37 (1999) at 44. See also footnote 31. 225 Tiina Vähännen, Collaborative Partnership on Forests – A Model for Interagency Collaboration 0852-C5 (2003), available at http://www.fao.org/docrep/ARTICLE/WFC/XII/0852 -C5.HTM.

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required further consideration, including “issues related to financial assistance and technology transfer, trade and environment, and institutions and legal instruments for the management, conservation and sustainable development of all types of forests.”226 At their final meeting, the ipf recommended 150 Proposals for Action. Following these, there was a movement towards developing criteria and indicators,227 which included the Tarapoto Proposal of Criteria and Indicators for Sustainability of the Amazon Forest.228 Intergovernmental Forum on Forests (1997–2002) In 1997, after the work of the ipf, the un General Assembly endorsed the formation of the International Forum on Forests (iff) to “facilitate implementation of the ipf Proposals for Action and to further the policy dialogue” on still-unresolved issues.229 This body eventually proposed the creation of the un Forum on Forests. The Panel discussed several important issues in forestry, such as land-use programs, causes of deforestation and forest degradation, traditional knowledge, financial assistance and technology transfer, and trade of forest products and services.230 ipf and iff examined a wide range of forest-related topics over a five-year period. Key outcomes of the deliberations were presented in the final reports, IPF4231 and IFF4,232 in the form of 270 proposals for action towards s­ ustainable

226 227 228 229 230 231 232

226 iisd, A Brief to Global Forest Policy, available at http://www.iisd.ca/process/forest_desertification_land-forestintro.htm. 227 Convention for Biological Diversity, Chapter 5: Global Implementation of the Convention and Cooperation with other Conventions and Processes, available at https://www.cbd .int/gbo1/chap-05.shtml (observing this trend manifesting in “ … the itto’s work on criteria and indicators associated with trade and the productivity of tropical forests, and the Centre for International Forestry Research’s (cifor) project on the application of criteria and indicators across different ecoregions with respect to forest dwellers and community forestry.”). 228 fao, the Tarapoto Proposal of Criteria and Indicators for Sustainability of the Amazon Forest (1995), available at https://www.cbd.int/gbo1/chap-05.shtml. 229 The Pinchot Institute for Conservation, Crosswalks 2: Linkages Between Montreal Process Criteria and Indicators and the ipf/iff Proposals for Action at 3, Version 1.0 (2002), available at www.pinchot.org/?module=uploads&func=download&fileId=9. 230 IPF4, supra note 231. 231 u.n. ecosoc, Report of the Ad Hoc Intergovernmental Panel on Forests on its Fourth Session (IPF4), ¶ E/CN.17/1997/12 (Mar. 20, 1997). Bolivia, Brazil, Colombia, Guyana, Peru, and Venezuela participated as members; Ecuador participated as observer. 232 u.n. ecosoc, Report of the Intergovernmental Forum on Forests on its fourth session (IFF4), ¶ E/CN.17/2000/14 (Mar. 20, 2000). Brazil, Colombia, Guyana, Peru, and Venezuela participated as Member States; Ecuador participated as Observer.

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forest management, which are considered collectively as the ipf/iff Proposals for Action.233 The Panel for IPF4 concluded that there was a strong need for coordination among international organizations and multilateral institutions to provide a holistic approach for all types of forests.234 Although several institutions work closely with forest-related issues, there was no single multilateral body with the capacity to address all issues regarding forests. In addition to a unified body, the Panel addressed the issue of the need of a global instrument that dealt with the interrelated aspects that impact forests.235 Such body and instrument would create the framework to develop and implement indicators for sustainable forest management.236 Adding on to the strategy for action suggested by IFP4, through national forest programs, IFF4 recognized the diversity of countries, and the different priorities at the national level. Implementation and enforcement of proposals for action would therefore be held at national and subnational levels, with significant international support.237 Likewise, the IFF4 underscored the need for financial mechanisms and measures to support development assistance, especially for developing countries and least developed countries.238 The Forum highlighted certain regional initiatives, including the Sub-­ Network of Protected Areas of the Amazon, the Central American Convention on Forests, and the regional workshops held under the auspices of the fao Regional Forestry Commissions for Asia and the Pacific, Africa and Latin American and the Caribbean.239 A steering committee of regional representatives was also formed between ngo and indigenous organization participants to organize intercessional meetings to encourage progress and forward motion.240 These regional initiatives were further developed in this Forum’s iteration as the unff. The Forum recognized the need to develop a common understanding of key concepts, definitions and terms at the national and international levels, as well

233 234 235 236 237 238 239 240

233 u.n. Intergovernmental Panel on Forests, Proposals for Action, available at http://www .un.org/esa/forests/pdf/ipf-iff-proposalsforaction.pdf (last visited Oct. 30, 2013). 234 Id., item 136. 235 Id., item 142. 236 Id., item 141. 237 IFF4, supra note 232, item 3. 238 Id., item 2; 20–31. 239 iff4, supra note 232, item 8. 240 World Rainforest Movement Bulletin No. 5 Intergovernmental Forum on Forests, available at http://wrm.org.uy/oldsite/bulletin/5/IFF.html.

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as criteria and indicators for sfm.241 The impact of international trade in forest products was also addressed, according to the positive and negative impacts of trade policies on sustainable forest management.242 Although the ipf/iff proposals for action are not legally binding, participants are under a political obligation to implement them. Each country is expected to conduct a systematic national assessment of the ipf/iff proposals and to plan for their implementation. They can provide guidance in the implementation of relevant treaties and represent a beginning in building synergies. However, they are not always explicit as how they relate to existing instruments or specific enough to reflect a true international consensus.243 Rio +5 Five years after the 1992 Rio Earth Summit, a delegation met again to review the progress made so far. It assessed the metrics of sustainable development, reviewed success stories and challenges, and called on governments and ngos to renew their commitment to sustainable development.244 It also highlighted issues such as “finance, technology transfer, patterns of production and consumption, use of energy and transportation” and discussed action items relating to these.245 The official report notes the recent completion of the Land Information Systems Project (geographic information systems), lauding its utility in land use planning. 246 Kyoto Protocol The Kyoto Protocol247 augments the unfccc by setting out stricter demands for greenhouse gas emissions and providing teeth to the original treaty.248 The 241 242 243 244 245 246 247 248

241 IFF4, supra note 199, items 14–15. 242 Id., item 33. 243 Richard Tarasofsky, Assessing the International Forest Regime 5 (iucn Environmental Polocy and Law Paper No. 37, 1999). 244 United Nations, Outcomes on Sustainable Development, available at http://www.un.org/ en/development/devagenda/sustainable.shtml. 245 Id. 246 un General Assembly, Nineteenth Special Session A/S-19/PV.10, 27 June 1997, New York at 4. 247 Kyoto Protocol to the United Nations Framework Convention on Climate Change, United Nations, (1993), available at http://unfccc.int/resource/docs/convkp/kpeng.pdf. 248 United Nations Framework on Climate Change, A Summary of the Kyoto Protocol, available at http://unfccc.int/kyoto_protocol/background/items/2879.php.

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Protocol functions as an international agreement linked to the unfccc, but includes mandatory targets on GHG emissions for the world’s leading economies.249 These targets are legally binding, and framed as ghg percentage emissions reduction goals for 39 of the world’s most developed countries.250 Countries have the flexibility to augment these binding targets with other initiatives such as increasing carbon sinks in the form of afforestation or reforestation, either in the member country or in another country, referred to as joint implementation.251 The process by which developed countries meet their offset goals through projects in developing countries is known as the Clean Development Mechanism (cdm). However, the cdm limits projects to afforestation or reforestation; projects to reduce deforestation or forest degradation are not permitted.252 The Protocol frames and addresses the importance of forests as providing a remedy, and deforestation as increasing the “illness” of global warming.253 These projects, however, were seen as having a slow uptake, and many failed ­because of lack of forestry expertise.254 The Protocol also dropped ­tropical ­forest management initiatives from the cdm program because of “­difficulties in establishing … detrimental effects outside the project area ­attributable to project activities.”255 Later efforts, including redd, REDD+, and others would advance these initial forest carbon market/trading programs. United Nations Millennium Declaration The Millennium Declaration256 was published in 2000, and contained a statement of overall principles and objectives for the twenty-first century, as well as collective action deadlines.257 The publication followed the Millennium 249 250 251 252 253 254 255 256 257

249 Id; see also Nick Hanley et al., Introduction to Environmental Economics at 179 (2nd Ed. 2013). 250 Id. 251 Id. 252 Id. 253 fao. The Kyoto Protocol, What Does it Mean For Forests and Forestry?, available at http:// www.fao.org/docrep/009/a0413e/a0413e02.htm. 254 Id. 255 Cram 101 Textbook Reviews, Just The Facts 101: Textbook Key Facts, Introduction to Environmental Economics 2nd Ed. Study Guide at 179. 256 u.n. General Assembly, United Nations Millennium Declaration, ¶ A/55/L.2 (Sep. 18, 2000), available at: http://www.refworld.org/docid/3b00f4ea3.html (last visit Aug. 25, 2015). 257 Millennium Summit, United Nations, (last accessed Jan. 17, 2017). Available at http:// www.un.org/en/events/pastevents/millennium_summit.shtml.

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Summit of the un, held in New York in September 2000. Forests are directly addressed in Section iv, paragraph 23 of the Declaration. Section iv, “Protecting our common environment”, states “We resolve therefore to adopt in all our environmental actions a new ethic of conservation and stewardship and, as first steps, we resolve … to intensify our collective efforts for the management, conservation and sustainable development of all types of forests.”258 Goal 7 of the Millennium Development Goals259 is Ensuring Environmental Sustainability. Towards forest conservation, the Goal enumerates Target 9, which integrate the principles of sustainable development into country policies and programs and reverse the loss of environmental resources, and lists five indicators to measure progress towards.260 United Nations Forum on Forests (unff) After another unsuccessful attempt at an international forest convention, a new un forest body was established. The United Nations Forum on Forests (unff) was created by the Economic and Social Council of the United Nations (ecosoc) as part of a new international arrangement on forests, to carry on the work developed by the ipf and iff processes.261 It is a subsidiary body to ecosoc and has universal membership. The main objective is to promote the management, conservation and sustainable development of all types of forests and to strengthen long-term political commitment to this end. As such, it is the only un institution with a clear forest mandate. It functions as the main vehicle of international cooperation and policy and represents an enhanced international profile for forests.262 258 259 260 261 262

258 un General Assembly, United Nations Millennium Declaration, Resolution Adopted by the General Assembly, 18 September 2000, A/RES/55/2, at §23¶23. Available at: http:// www.refworld.org/docid/3b00f4ea3.html. 259 Goals, targets and indicators, Millennium Project, United Nations, (2006), at goal 8. Available at http://www.unmillenniumproject.org/goals/gti.htm#goal7. 260 Indicators include: 25. Proportion of land area covered by forest (fao); 26. Ratio of area protected to maintain biological diversity to surface area (unep-wcmc); 27. Energy use (kg oil equivalent) per $1 gdp (ppp) (iea, World Bank); 28. Carbon dioxide emissions per capita (unfccc, unsd) and consumption of ozone-depleting cfcs (odp tons) (UNEPOzone Secretariat); and 29. Proportion of population using solid fuels (who). 261 ecosoc, Res. 2000/35, u.n. ecosoc, 46th plenary meeting, Resolutions and Decisions of the Economic and Social Council, Resumed Substantive Session of 2000, at 64 (Oct. 18, 2000). 262 See generally, United Nations Forum on Forests, available at http://www.un.org/esa/ forests/index.html.

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As unff was built upon the foundations of ipf and iff, it has both the burden and the legacy of the forest negotiation processes from Rio onwards.263 The body has two critical roles. First, it represents the historical development and the institutional structure of forest negotiations, with a direct insight into the core of forest governance and of why an international forest convention has failed. As such, it absorbs the knowledge of what an incorrect approach to forest governance is. Second, it has a clear purpose and mandate focused on forests, and has a deeply rooted knowledge of forest issues.264 The UNFF1 Report outlined the unff Plan of Action, with a target to advance the implementation of the ipf/iff proposals for action, and demonstrate progress towards sustainable forest management by 2005.265 In addition, it included the first Multi-Year Program of Work (mypow) from 2001–2005.266 The Forum feeds into broader global environment and development processes with inputs such as the UNFF2 Ministerial Declaration to the World Summit on Sustainable Development.267 Collaborative Partnership on Forests The Collaborative Partnership on Forests (CPF) was established in April 2001, following the recommendation of ecosoc.268 This innovative, voluntary partnership of 14 major forest-related international organizations, institutions and convention secretariats269 works to support the unff and its member 263 264 265 266 267 268 269

263 Anja Eikermann, supra note 214, at 37. 264 Id., at 40. 265 u.n. Forum on Forests, Report on the organizational and first sessions, ¶ E/2001/42/Rev.1, E/CN.18/2001/3/Re/1 (12 and 16 February and 11–22 June 2001). 266 It was adopted at the seventh session of unff (unff7), and reflects the new biennial format for the Forum. u.n. Forum on Forests, Report on the seventh session, ¶ E/2007/42, E/CN.18/2007/8 (24 February and 16–27 April 2007). 267 Such as: (a) Advance sustainable forest management as a critical means to eradicate poverty, reduce land and resource degradation, improve food security as well as access to safe drinking water and affordable energy, and highlight the multiple benefits of both natural and planted forests and trees to the well-being of the planet and humanity; (b) Enhance political commitment to achieve sustainable forest management by endorsing it as a priority on the international political agenda, taking full account of the linkages between the forest sector and other sectors through integrated approaches. See u.n. General Assembly, Commission on Sustainable Development acting as the preparatory committee for the World Summit on Sustainable Development, third session, ¶ A/CONF.199/PC/8 (Mar. 19, 2002). 268 ecosoc, Res. 2000/35, supra note 261. 269 The cpf is comprised of fourteen members: cifor, fao, itto, iufro, cbd, gef, unccd, unfccc, desa, undp, unep, icraf, the World Bank, and iucn.

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countries and to foster increased cooperation and coordination on forests. The cpf is chaired by fao and is serviced by the unff Secretariat.270 The role of this body is to continue the six years of work begun by the ipf and iff in supporting the post-Rio process of global forest policy implementation.271 It also provides expertise, and assists in monitoring and assessment activities. The cpf helps the unff implement the proposals in various ways, and is “deliberately kept small for the effectiveness and flexibility of its work.”272 Interestingly, the cpf solicits input from regional organizations and interest groups in recognition of the value of these types of contributions.273 cop6 of the cbd and the Hague Ministerial Declaration The Sixth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity was held in the Hague, Netherlands, between 7–19 April, 2002.274 Despite contentious debates, the cop’s highlights included adoption of a revised forest work programme. The meeting also served as an opportunity to review the Convention’s activities in light of the upcoming wssd and the long-term Strategic Plan. In addition to the substantive discussions, procedural questions were raised about the correlation of the Ministerial Declaration with the cop’s decision on forest biodiversity, as well as the decision-making procedures regarding consensus and adoption of the guiding principles over the objections of some countries. Despite these concerns, most delegates noted the significant amount of work accomplished by COP-6, which sets the stage for national and intersessional activities in the lead up to COP-7. Delegates to COP-6 considered and adopted 36 decisions, including related to forest biodiversity; alien species that threaten ecosystems, habitats and species. COP-6 resulted in the Hague Ministerial Declaration. Item 13 states:

270 271 272 273 274

270 271 272 273 274

We reconfirm the commitment to halting deforestation and the loss of forest biodiversity and ensuring the sustainable use of timber and nontimber resources and we commit ourselves to the full implementation of the Convention on Biological Diversity’s expanded action-oriented work See Vähänen, supra note 22. See Vähänen, supra note 22. Id. Id. Conference of the Parties, Convention on Biological Diversity, United Nations Environment, (last accessed Jan. 16, 2017). Available at https://www.cbd.int/cop/.

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programme on all types of forest biological diversity in close cooperation with the United Nations Forum on Forests, the United Nations Convention to Combat Desertification, the United Nations Framework Convention on Climate Change and other forest-related processes and conventions, and with the involvement of all relevant stakeholders.275 Item 7 likewise acknowledges the progress made in the decade since the last cop on translating the objectives of the cbd into concrete policies and activities, including the “National Strategies and Action Plans …” and “work programmes on forest biodiversity …”.276 The decision of the thematic work programme on forests underlined the sovereign rights and responsibilities of countries, and emphasized the Convention’s objectives and traditional knowledge.277 It expressed the need for urgent action for forests that are threatened, important for biodiversity, and have potential for conservation, sustainable use and benefit-sharing. While emphasizing nationally prioritized activities, the importance of international and regional activities was recognized.278

2002: World Summit for Sustainable Development (wssd) “Earth Summit” Held in Johannesburg, South Africa, on September 2002, the World Summit for Sustainable Development (wssd) was organized as a follow-up and review of the progress of the 1992 unced. The Earth Summit 2002, also called the Rio’ Earth Summit +10, especially analyzed the implementation of Agenda 21.279 As a result of the meeting, the Johannesburg Declaration280 was adopted, as well as a Plan of Implementation, delineating targets and deadlines agreed upon by participating governments.281 The Plan of Implementation addresses forests

275 276 277 278 279 280 281

275 The Hague Ministerial Declaration of the Conference of Parties to the Convention on Biological Diversity, April 26, 2002, p. 8 available at https://www.cbd.int/doc/meetings/ cop/cop-06/other/cop-06-min-decl-en.pdf. 276 Id. at 4. 277 unep/cbd/cop/6/L.27. 278 http://www.iisd.ca/vol09/enb09239e.html. 279 Earth Summit 2002, Briefing Paper, at 3 (Jan. 2002). Available at http://earthsummit2002 .org/Es2002.pdf. 280 A/CONF.199/20, Chapter 1, Resolution 1, Johannesburg, September 2002, available at http://www.un-documents.net/jburgdec.htm. 281 Plan of Implementation of the World Summit on Sustainable Development, available at http://www.un-documents.net/jburgpln.htm. A/CONF.199/20, Chapter 1, Resolution 2, Johannesburg, September 2002.

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in paragraph 45, and emphasizes the achievement of sustainable forest management goals as important for both natural and planted forests, as well as for timber and non-timber products.282 It links forestry goals to other social, economic, and environmental benefits such as eradicating poverty, reducing deforestation, achieving sustainable development, improving food security, access to safe drinking water and affordable energy.283 The Plan included specific action items, such as (i) emphasizing inter-sector links to achieve endorsement of sustainable forest management as an international political priority; (ii) supporting the unff, with the assistance of the cpf, to implement forest management at the national, regional, and global levels; (iii) backing domestic forest laws and building enforcement of national legislation prohibiting international trade of certain forest products and biological resources; (iv) taking action to promote sustainable timber harvesting, including facilitating the provision of financial resources for environmentallysound technology transfer; (v) developing initiatives to address areas where poverty and highest rates of deforestation occur; (vi) facilitating and accelerating the implementation of proposals for action of the ipf/iff; (vii) supporting indigenous/community-based forest management systems; and (viii) implementing the action programs of the cbd on all types of forest biological diversity in cooperation with the unff and cpf.284 7.6 Conclusion The third period of cooperation lasted from 1995 to 2002, and saw the most significant changes in the structure of the act, leading to institutional maturity. The period brought the treaty to the next level through four significant institutional advances: (i) the Permanent Secretariat; (ii) the Amendment Protocol; (iii) the acto; and (iv) the ccacc. One of the main critiques to the treaty concerned its bureaucratic institutions. The evolution towards the acto sought to revitalize it, and readapt cooperation to the new circumstances brought by the changes that occurred during Phase 2.285 Nonetheless, unlike the previous period, in which the political will 282 283 284 285

282 283 284 285

Plan of Implementation of the World Summit on Sustainable Development ¶45. Id. Id., subparagraphs (a) through (i). Antonio Quiroga and Jacques Marcovitch, supra note 4, at 28.

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of the heads of state was required to rescue the treaty’s original purpose, the changes within this phase were led by the decisions of the actual bodies of the act.286 It is, as such, the result of the growing efforts of the treaty and the need to consolidate what had been achieved so far. A great effort was put into strengthening the institution and structure through constant self-analysis and revisions. The organization has thus learned from its development in an attempt to constantly improve.287 The institutional development began with the creation of a Permanent Secretariat in 1995. The change was no easy task. It started with smaller adjustments to the pts, and broad discussions on a more permanent solution by an ad hoc working group. After countries decided on a more stable structure for the secretariat, it was necessary to regulate it. The second step took a longer period of time to unfold. Although the pts was established in 1995, its structure and objectives were only finalized in 2002. In 1998, the working group presented its final report on the institutional changes, including (i) the Protocol of Amendment of Article xxii of the act; (ii) the draft regulation of the ps; and (iii) the draft regulation of the ­c cacc. It recommended endowing the ps with greater management capacities ­relative to the prior pts, and with a legal personality to represent the act member States. Later that year, the Amendment Protocol was approved, creating the acto and altering the language of article xxii of the treaty. However, once again a pattern of discontinuity was observed, becoming a characteristic of regional cooperation. After major decisions, a period of inaction follows, leading to the slow implementation of changes. As such, the acto would only materialize in 2003. The challenge was highlighted in the 2000 Caracas Declaration, adopted by the vi mmfa. On that occasion, the regulation of the ps and the ccacc, which was also created then, were approved. Through the Santa Cruz de la Sierra Declaration by the vii mmfa, the Headquarters’ Agreement, the Staff Regulation of the ps, and the structure of the acto were approved. At the end of 2002, the first Secretary General of the acto was elected. The acto was structured as an international organization, the first to be headquartered in Brazil. The ps is the legal personality of the acto. As a consequence of its legal personality, it can legally represent the acto in all matters previous approved by member countries. The establishment of the acto represents a significant improvement of the consolidation of the treaty as an ­international regime as it creates a multilateral body with legal personality 286 287

286 Id. 287 Id.

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that can govern cooperation between the eight countries and implement projects and programs. Another significant development was the approval of quotas for each member country, moving away from the complete reliance on external funding for the structure of the act. Despite the economic difficulties members faced, they prioritized the institutional maturity of the treaty, and approved quotas to ensure its proper operation. Member countries agreed on a total budget to fund the organization each year, and divided percentages between them according to their capacities, embodying the cbdr principle. Overall, it represented the political will and commitment assumed in this new phase of Amazon cooperation. However, actual payment of the quotas took longer to be fully implemented. Following the initial period of strengthening the institution itself, the mmfa entered a new phase of cooperation. It was essential to join forces to achieve sustainable development goals, as well as broaden the dialogue through a multi-stakeholder participation.288 Through increased participation, representatives at the technical and scientific levels could join the diplomats that usually made the decisions, thus focusing on social and economic issues along with environmental policies. Participation was done through the pncs, which strengthened the capacity to achieve quicker and more efficient decisions at the lower level. Additionally, it was necessary for member countries to commit to more regular meetings at the mmfa and acc, as well as the special commissions.289 Since 2000 meetings have been more frequent and effective. As such, it is distancing itself from the general acknowledgments from the first resolutions and declarations, and is achieving more focused decisions, leading to development of concrete actions and projects. The establishment of the acto led to the fourth phase in the institutional development of Amazonian cooperation. Through the acto, and the increasing role of Amazonia at the global level, the region was finally brought to the international agenda. Brazil, as the headquarters of the new organization, also  achieved a new role as a global actor, with a significant international role.290 After 25 years since the signing of the act, regional cooperation had 288 289

288 vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii). 289 vi Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Caracas, Venezuela, on 6 Apr., 2000, Acta Final (Annex ii).

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an institutional headquarters, a permanent secretariat, and a budget. Finally, through the development, albeit slow, of cooperation, several lessons were learned, ensuring proper conditions for the future development of cooperation: the gained know-how in the preliminary phases for diplomatic meetings and the reduced costs of transactions, information sharing, science and technology between members, and building an institutionalized environment for dialogue and bringing countries closer.291 While the strategic relevance of Amazonia from an economic and defense perspective brought the countries together to mutually assist each other regionally, the renewed focus on environmental policies was relevant internationally. Indeed, the act/acto largely advanced the environmental agenda during the nine years of the third phase. The act supported national efforts to implement Agenda 21, following up on the initiatives agreed on at the 1992 Rio Summit. scea was paramount to promote the environmental agenda, despite infrequent meetings and excessive bureaucracy that hindered development. Projects focused on watershed management, the prevention of contamination in watersheds, technology transfer, protection of genetic resources, traditional knowledge, intellectual property rights and access to genetic material. Other initiatives include the development of a regional methodology for ecological-economic zoning (eez) and monitoring of changes in land use. In addition, scea had a significant role in compiling information from Amazon countries. Of note, the Action for a Sustainable Amazon project discussed the sustainable development of the Amazon region and policies to reduce deforestation and biodiversity loss. The agenda on forests was widely developed, both in promoting information sharing and inducing forest protection. Three specific forest-related projects were highlighted, namely: (i) the Tarapoto Process on Criteria and Indicators of Sustainability of the Amazon Forest, (ii) the Pucallpa Proposal, and (iii) the Regional Program on Planning and Management of Protected Areas in the Amazon Region. The Tarapoto Process identified criteria and indicators that defined forest sustainability in Amazonia and promoted national consultations that ­evaluated those in each country. The proposal for the regional project “Validation of 15 Priority Indicators for Sustainability of Amazon Forests” was ­unanimously approved at the vii mmfa. The set of criteria and indicators represented an important mechanism to monitor and validate the efforts of 290 291

290 Rodolfo Ilário da Silva, supra note 7, 543. (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente? Unpublished Masters Thesis, Instituto Rio Branco, 2009). 291 Id., Rodolfo Ilário da Silva, supra note 7 at 43.

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Amazonian countries to seek sustainability. The Tarapoto Process can serve as a point of convergence between the Amazonian countries, in the search for projects and policies promoting the conservation and sustainable use of forest resources.292 It required, however, a continuous collaboration between countries to ensure they were moving forward. The Tarapoto Process continued into the fourth phase. The Pucallpa Proposal focused on the sustainable development of secondary forests in Tropical America, raising attention to the role of regenerated forests. Through a series of workshop that involved other countries in Latin America, the Pucallpa Proposal presented suggestions to protect secondary forests, therefore creating a sustainability belt that shielded primary forests from deforestation. Finally, the act built on the work developed by fao with protected areas, developing the Regional Program on Planning and Management of Protected Areas in the Amazon Region. For the first time, Amazon countries contributed with respect to protected areas in Amazonia. Through an analysis of the results, the act identified a gap in wildlife reserves, and developed a project to provide a diagnostic of those established in the region. Despite the advancements in forest protection, it should be noted that the majority of projects had an economic focus. In addition, the sovereignty over natural resources was once again highlighted throughout the third phase.293 It shows unequivocally that development came first, while environmental protection came second. Finally, projects faced issues in implementation due to the lack of stable funding, as discussed in the regional project for protected areas, which failed to develop into the second phase due to the lack of resources. The acto also promoted their regional voice at global events, including in the iff, cites, and the Rio+10 Conference in Johannesburg. Indeed, the period provided multiple opportunities for a unified voice, as there were several parallel efforts in forest issues at the global level. Indeed, the third period of cooperation between Amazon countries was concomitant to increased efforts in forest protection at the international level. These, however, had no clear concepts or mandates, each attempting to cover the issue independently. Despite several efforts, none was successful as the fundamental principle of state sovereignty over natural resources prevailed.294 The 1994 itto Revised Timber Agreement (itta) was approved during the period, as a re-enactment of the original 1983 Agreement. It controlled the terms of international trade in tropical timber, and promised to provide a new 292 293 294

292 Antonio Quiroga and Jacques Marcovitch, supra note 4, at 24–25. 293 act, vii mmfa, Acta Final. 294 Anja Eikermann, supra note 214, at 36.

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legal framework for meshing trade with conservation. Nonetheless, the states’ sovereignty over natural resources, reinforced in the agreement, provided a practical challenge to regulation. Despite inducing the trade-off between trade and conservation, the agreement failed to define sustainable development. Notably, the ipf and its successor the iff were advanced as a response to the lack of a binding agreement on forests. The ipf and iff represented five years of international forest policy dialogue; these fora took the attention away from fao, which had until then the international forest mandate. The ipf/iff approved several proposals for actions throughout the period. These are not legally binding, and the discussions were once again weakened by national interests, which hindered a global agreement on forests. Nonetheless, the period saw an increase in regional agreements and collaboration in environmental protection, as well as recognition of the changing nature of the interplay between sustainable development, trade, and conservation as relating to forests. The Kyoto Protocol was approved, showing a growing responsibility of developed countries for climate change. The Millenium Declaration paved the way for sustainable development in the 21st century, addressing the role of forests in particular. The unff was established as a forest body, as part of a new international arrangement on forests, to carry on the work developed by the ipf and iff processes. To support the implementation of the ipf/iff proposals and the unff, the Collaborative Partnership on Forests (cpf) was also created. The 6th Conference of the Parties to the cbd specifically addressed forest biodiversity the forest agenda. Finally, the wssd, marking 10 years since the 1992 unced, approved a Plan of Implementation, which included a direct link between forests and the advancement of socioeconomic development.

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Fourth Period of Cooperation within the act’s Framework (2002–2009): Institutional Visibility Between 2002 and 2009: Intensification of contacts between Amazonian countries, especially in areas such as health, education, infrastructure, environment, and indigenous people, which has facilitated the convergence of efforts to develop an “Amazonian identity”.1

∵ The fourth phase of cooperation in the Amazon region started with the signing of the Headquarters’ Agreement, which finally gave a home to the newly created acto. With a new organization, a new headquarters’, and a proper budget, the organization finally had an adequate institutional structure in which to develop. It was important to prove that institutional changes were effective, and that the acto could in fact achieve practical results after 25 years of cooperation.2 In order to achieve that goal, member countries had, for the first time, a regional discussion on the priorities of the organization. The discussion led to the adoption of the 2004–2012 Strategic Plan.3 Indeed, countries sought to orient this new phase of regional cooperation, define better conditions for bringing the acto to the international arena, and ensure resources for proper implementation of the plans envisioned. The Strategic Agenda showed that the institutionalization of the acto gave way to a new phase in the cooperation process. The new phase was characterized by a growing dynamic between member countries, the acto and its bodies, as well as other international institutions that became more involved in the regional cooperation process.4 1 2 3 4

1 Antonio José Ferreira Simões, Eu Sou a América do Sul, 39 (2012), available at http://funag .gov.br/loja/download/914-Eu_sou_da_America_do_Sul.pdf. 2 Rodolfo Ilário da Silva, A cooperação multilateral entre os países amazônicos: a atuação da Organização do Tratado de Cooperação Amazônica (OTCA), 128, Unpublished Masters Thesis, (UNESP (2012). 3 acto, Strategic Plan 2004–2012, 67 (2004), available at http://otca.pagina-oficial.com/assets/ documents/20161220/104e8a0adc01c25d4813b4b1b3b4fdbb.pdf. 4 Rodolfo Ilário da Silva, supra note 2, at 147. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_009

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With increased participation in the global environmental negotiations, a boost in regional projects, and increased funding, the investments seemed to be paying off. With the renewed structure and a new Secretary-General, the acto achieved many concrete actions in the first years of the fourth phase. With the adoption of the 2004–2012 Strategic Plan, a proper budget, and support from several external organizations, projects and plans were advanced successfully, leading to an effective trend of development. Nonetheless, the expansion of the organization was not always consistent. The prosperous trend did not last. The political dynamism was not accompanied by a satisfactory level of execution of projects. Following the end of the tenure of Dr. Rosália Arteaga as Secretary-General in 2007, the acto reached a political stalemate. Member countries could not decide on a successor. In addition, the agreed budget and contributions from member countries, established in 2004, were not constantly updated, and became insufficient to fund the basic operation of the organization. With budgetary deficiencies, limited staff, and political disagreement between members, the acto lacked autonomy.5 Once again, a movement for institutional strengthening was ignited. This chapter analyzes the maturity of the act into the acto, as well as the development of regional cooperation during the fourth phase. The period lasted from the 2004 until 2009, and can be summarized in Table 22. Due to the growing dynamic of cooperation between countries, it is called the “institutional visibility phase”.6 Table 22

Phase 4 timeline (2002–2009)

Extraordinary mmfa

Headquarters Agreement

2002

2003

Rio +10

viii mmfa

ix mmfa

Extraordinary acc

Extraordinary acc xiii acc

xii acc

2004

2005

2006

Extraordinary acc

2007

Extraordinary acc

2008

2009 Instrument on Forests

cbd cop7

World Summit

redd+

5 6

5 Id., at 128. 6 The categorization of the development of the organization in different phases was originally suggested by Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos para La

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215

Institutional Development

The fourth phase of the act is called “institutional visibility phase”.7 During the seven-year period, only two acc meetings and two mmfas occurred. In ­addition, one extraordinary mmfa was held to elect the first Secretary-­General. The phase can be divided in two opposing trends. The first half was characterized by an increasing development, following the adoption of the 2004–2012 Strategic Plan, and the implementation of projects and activities. The second half was characterized by a political stalemate led by the inability of member countries to agree on a successor to Ambassador Arteaga. Four extraordinary acc were held to discuss the succession, and an ad hoc working group was created to suggest improvements to the system in place. This section analyzes the development of the act/acto during the first half of the fourth phase. Following a chronological order, it begins by presenting the adoption of the Headquarters’ Agreement and the election of the interim Secretary-General. It then discusses the mandate of Secretary-General Rosália Arteaga, and the achievements during the period. The sub-section briefly addresses the adoption of the 2004–2012 Strategic Plan, which will be analyzed in depth in Section 8.2. It then briefly presents the events that led to the institutional crisis that followed, which will be explained in Section 8.3. Finally, it highlights other non-political meetings that occurred in the period. The political meetings that occurred within the act/acto’s framework can be summarized in Table 23. Table 23

Summary of meetings and results within the act’s framework during Phase 4 (2002–2009)

Date

Additional notes

Dec. 6, 2002

Extraordinary Meeting of the Ministers of Foreign Affairs (mmfa):8 election of the Secretary General of the acto. Dec. 14, 2002 Headquarters’ Agreement signed9 2004 Rosalia Arteaga elected as Secretary-General. 7 8 9

­Organización del Tratado de Cooperación Amazónica – otca, 24 (2003, non published paper)., and updated by Antonio José Ferreira Simões, supra note 1, at 39. 7 Antonio José Ferreira Simões, supra note 1, at 39. 8 Reunión Extraordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Brasília, Brazil, on Dec. 6, 2002, Acta Final. 9 Acuerdo de Sede entre el Gobierno de la República Federative del Brasil y la Organización del Tratado de Cooperación Amazónica (Brasília, Brazil, Dec. 13, 2002).

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Table 23

Date

Summary of meetings and results within the act’s framework during Phase 4 (2002–2009) (cont.)

Additional notes

Sep. 13, 2004 xii Ordinary Meeting of the Amazon Cooperation Council (acc):10 Projects and plans discussed: 2004–2012 Strategic Plan, Technical cooperation for biodiversity program with unctad, Tarapoto Process, initiatives to fight malaria, Regional Program for the Integrated Management of Water Resources, Regional Cooperation Program for the Sustainable Management of Protected Areas. Collaboration with can highlighted. New headquarters to be established in Brasília. Sep. 14, 2004 viii Ordinary Meeting of the Ministers of Foreign Affairs (mmfa):11 Manaus Declaration:12 Approved the Strategic Plan 2004–2012. Among other things, reestablished discussions regarding a regulation of navigation within Amazon rivers, reassured methods of monitoring deforestation, reaffirmed the need to create a biotrade program, and reassure the right over biological diversity, traditional knowledge, and indigenous communities. It also discussed the defense and physical integration of the territories, and the importance of participation by the civil society in decision-making. Nov. 24, 2005 xiii Ordinary Meeting of the Amazon Cooperation Council (acc):13 Discussed the progress made by countries in establishing the pncs, as well as some of the challenges faced. Suggested a revision of the regulation of the ps, as well as other rules and regulations of bodies of the acto. Highlighted the efficiency of the ccacc, which has been meeting around 1.5 times a month. 10 11 12 13

10 11 12 13

xii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Manaus, Brazil, on Sep. 13, 2004, Acta Final. viii Reunión de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held Manaus, Brazil, on Sep. 14, 2004, Acta Final. act, viii mmfa, Declaración de Manaos (Sep. 2004). xiii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 24, 2005, Acta Final.

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Additional notes

Nov. 25, 2005 ix Ordinary Meeting of the Ministers of Foreign Affairs (mmfa):14 Reaffirmed the commitment towards regional cooperation, accepted France as an observer of the meetings, requesting additional regulation of observers to be developed, highlighted efforts of the technical meetings and pnc meetings developed over the year, as well as the development of the Tarapoto Process. Feb. 20–21, Extraordinary Meeting of the Amazon Cooperation Council 2006 (acc):15 Discussed the draft of the Amazon Charter, as well as the current challenges faced by the organization. Reinforced the need for a political statement to be presented at the 25th anniversary of the act. Guyana highlighted the need for reinforcing the role of different stakeholders in Amazonian cooperation, especially indigenous communities and youth. Jul. 2, 2007 Extraordinary Meeting of the Amazon Cooperation Council (acc):16 Discussed the new Secretary-General, the need for a revised financial mechanism and revised quotas for member countries, and the Action Plan for 2007–2008. Aug. 29, 2007 iv Extraordinary Meeting of the Amazon Cooperation Council (acc):17 Extended the mandate of the interim Secretary-General. Sep. 26, 2007 v Extraordinary Meeting of the Amazon Cooperation Council (acc):18 Extended the mandate of the interim Secretary-General and highlighted the dire financial circumstances of the acto. 14 15 16 17 18

14 15 16 17 18

ix Reunión de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held Iquitos, Peru, on Nov. 25, 2005, Acta Final. Reunión Extraordinaria del Consejo de Cooperación Amazónica, held in Lima, Peru, on Feb. 20–21, 2006, Proyecto de Acta. Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. Reunión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Aug. 29, 2007, Acta. Reunión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Sep. 26, 2007, Acta.

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Headquarters’ Agreement and Interim Secretary General The fourth phase of cooperation in the Amazonia started with the adoption of the Headquarters’ Agreement at the end of 2002.19 Brasília finally became the official headquarters of the Permanent Secretariat (ps), and the acto had a proper structure in which to thrive. Shortly after, an Extraordinary mmfa was held in Brasilia to elect the first Secretary General of the acto. The meeting occurred due to the Presidential meeting of the can and mercosur.20 Although not parties to these regional agreements, the chancellors of Guyana and Suriname were invited to participate.21 Ambassador Sergio Sánchez Ballivián, from Bolivia, was elected as interim Secretary General for a mandate of a year.22 Dr. Arteaga’s Mandate as Secretary-General In 2004, Dr. Rosália Arteaga, from Ecuador, was elected Secretary General. Through her mandate, the acto thrived, achieving institutional strengthening. Her tenure broadened the activities of the acto and projected the ­organization at the global level. In addition to harmonizing the position from countries in international negotiations, the acto developed mechanisms for dialogue and consultations with the civil society.23 The Secretary-General saw the acto as a strategic organization, with a specific role to intervene in themes related to the political dialogue, strategies and regional programs, as well as initiatives and projects of a supranational nature.24 At the viii mmfa, the first and only of the period, the 2004–2012 Strategic Plan was approved, providing a roadmap for the years to follow.25 The plan will be analyzed in Section 8.2. The mmfa adopted the 2004 Manaus ­Declaration, 19 20 21 22 23 24 25

19 20 21

22 23

24 25

Acuerdo de Sede entre el Gobierno de la República Federative del Brasil y la Organización del Tratado de Cooperación Amazónica (Brasília, Brazil, Dec. 13, 2002). Reunión Extraordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Brasília, Brazil, on Dec. 6, 2002, Acta Final. vii Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 22 Nov., 2002, Acta Final. Reunión Extraordinaria de los Ministros de Relaciones Exteriores del Tratado de Cooperación Amazonica, held in Brasília, Brazil, on Dec. 6, 2002, Acta Final. Rosalía Arteaga Serrano, A Organização do Tratado de Cooperação Amazônica (Otca): um desafio permanente 94 in 4 dep: Diplomacia, Estratégia e Política / Projeto Raúl Prebisch (Apr.-Jun. 2006). Id., at 90–91. viii Meeting, held in Manaus, Brazil, on Sep. 2004. act, viii mmfa, res/viii mre­o tca/1 (Sep. 14, 2004).

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which reaffirmed the relevance of the organization for regional cooperation. Member countries reiterated their responsibility for sustainable development, as well as their sovereignty over the natural resources of Amazonia.26 Indeed, they emphasized the significance of transboundary cooperation within the thematic areas of the treaty, and made a compromise to deepen cooperation of the programs and projects developed by the acto.27 Instigated by the renewed commitment to the organization, the mmfa agreed to have yearly meetings, as well as convene thematic ministerial meetings in areas such as biodiversity, intellectual property and physical integration.28 The acto quickly established itself as an international body. Starting a practice to develop biannual plans of action, it at last had some internal planning to guide the organization, and inform member countries about to the actions and goals of the ps.29 The plans of action articulated with the Strategic Plan, detailing the duration, costs, and sources of funding for projects, as well as other information necessary for its implementation. The 2003–2005 Workplan was based on the work developed by three international consultants financed by caf. These established a strict collaboration with the governments of the member countries through the pncs, and defined the strategic action of the acto in the foundational period.30 The bodies of the acto were working at a fast pace then. The ccacc met around 1.5 times a month.31 However, some institutional changes were still needed. At the xiii acc, a revision of the regulation of the ps was suggested. At the ix mmfa, member countries created a working group within the acc to present a project to modify the regulations of the bodies and instances of the acto.32 In 2005, in the occasion of the act’s 25th anniversary, the mmfa was held in Iquitos, Peru, to celebrate and reflect on the integration mechanisms.33 Member countries renewed the decision to continue working together, convinced that the acto was the appropriate forum to promote integration, sustainable 26 27 28 29 30 31 32 33

26 27 28 29 30 31 32 33

act, viii mmfa, Declaración de Manaos, ¶2; ¶3 (Sep. 2004). act, viii mmfa, Declaración de Manaos, ¶27 (Sep. 2004). act, viii mmfa, Declaración de Manaos (Sep. 2004). 2004–2012 Strategic Plan, supra note 3, at 67. Celso Amorim, O tca: instrumento de cooperação na Amazônia in Cooperação e desenvolvimento sustentável na Amazônia, Ministério das Relações Exteriores (2003). xiii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 24, 2005, Acta Final. act, ix mmfa, res/ix mre-otca/12 (Nov. 25, 2005). ix mmfa, held in Iquitos, Peru, on Nov. 2005, which resulted in the 2005 Iquitos Declaration.

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development and regional solidarity.34 They highlighted, however, the need to be more ambitious and consolidate mechanisms of integration and contribute to articulate with can.35 The role of international cooperation was specifically highlighted with regards to environmental investigation, biotechnology, timber products, among others, and member countries raised attention to the issue of deforestation and its impact over water resources.36 They also decided to adopt measures to reduce environmental degradation, such as control illicit forest fires, illegal mining activities, and illegal traffic of forest products, flora and fauna, as well as genetic resources. Secretary-General Arteaga was responsible for constantly discussing the role of the organization at the regional and global levels. Indeed, at the ix mmfa, she highlighted the political visibility of the organization at global events, as a multilateral body dedicated to regional issues. The visibility contributed to strengthening the dialogue between countries. The multitude of themes within the organization’s structure was responsible for bringing countries together and facilitating the debate and consensus towards joint solutions of common problems. Within this context, the implementation of the Strategic Plan was paramount. However, it was necessary to strengthen the technical capacity of the acto to fulfill the broad mandate. Specifically, the acto had to fulfill its role as a political space in which it could act within the limits of the mandate, but avoiding unnecessary bureaucracies. Within this context, Dr. Arteaga ­requested a commitment towards the sustainable development of Amazonia, and highlighted the shared responsibility of governments to take care of the rainforest.37 Among the advances pursued by Dr. Arteaga, a study to establish the boundaries of Amazonia was conducted with the support of the European Commission, in order to address the lack of a precise definition of the territory of 34 35 36 37

34 35

36

37

act, ix mmfa, Declaración de Iquitos, ¶1 (Nov. 25, 2005). ix Reunión de Ministros de Relaciones Exteriores de los Países Membros de la Organización del Tratado de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 25, 2005, Acta Final. ix Reunión de Ministros de Relaciones Exteriores de los Países Membros de la Organización del Tratado de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 25, 2005, Acta Final. ix Reunión de Ministros de Relaciones Exteriores de los Países Membros de la Organización del Tratado de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 25, 2005, Acta Final.

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Amazonia.38 Since 2005, member countries had discussed a proposed Amazon Charter at the mmfa and acc meetings, which would ratify and expand the principles and objectives of the act. However, the initiative did not move forward. The issue of climate change was also often discussed, with Brazil highlighting how developing countries could not assume the complete responsibility, as deforestation cannot be considered the only factor in global warming.39 Institutional Crisis However, after the end of Dr. Arteaga’s mandate, on June 2007, the acto entered an institutional crisis. Indeed, member countries failed to agree on a successor, a situation that persisted until 2009. As a result, the mmfa was often postponed. In addition, the acto was facing severe financial distress, as the contributions of countries only amounted to 20 percent of the costs of the organization. The remaining period consisted in a stalemate, and there were no additional political meetings as an ad hoc working group addressed those challenges. The institutional crisis, and the institutional developments that followed, will be analyzed in Section 8.3. Other Meetings during Phase 4 Other meetings not foreseen in the act were promoted to address specific issues: Science and Technology Meeting (Lima, Aug. 26, 2005); Intellectual Property Meeting (Rio de Janeiro, June 30 and July 1, 2005); Meeting of Ministers of Health and Social Protection (Florianópolis, March 22, 2006); and Meeting of Ministers of Defense (Bogotá, July 13, 2006).40 The political dialogue developed on specific issues such as intellectual property, science and technology, ­security and defense.41 The ps received the mandate of implementing the conclusions adopted in said meetings.42 The ps also received the mandate to ­continue ­fueling the implementation of the Strategic Plan, continuing the 38

39 40 41 42

38 39

40

41 42

European Comission and otca, Una Propuesta para la Definición de los Límites Geográficos de la Amazonía v (2005). ix Reunión de Ministros de Relaciones Exteriores de los Países Membros de la Organización del Tratado de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 25, 2005, Acta Final. During the viii mmfa (September 2004), it was decided to hold five ministerial meetings (trade, social development, science and technology, defense, security) and a technical meeting (intellectual property). act, ix mmfa, res/ix mre-otca/3 (Nov. 25, 2005). act, ix mmfa, res/ix mre-otca/3 (Nov. 25, 2005).

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progress showed in the 2004–2005 period, highlighted in the Management Report.43 In addition, specific meetings were conducted throughout the period to address the gap in national implementation of projects due to the slow ­development of pncs. At the previous development period, member countries had raised attention to the need to reactivate pncs so that each country could properly apply the commitments and responsibilities nationally. At the xiii acc, Guyana highlighted the challenges faced by smaller countries in establishing the pncs, due to limited technical capacities to coordinate projects with the acto. There was, indeed, the need to establish new mechanisms to provide temporary support to pncs of smaller countries, in order to allow them to fully participate in the activities advanced by the treaty.44 The strengthening runs in parallel with the institutional strengthening of the acto, so that decisions made jointly by member countries can be anchored in the national agendas. Strengthening of pncs was thus included in the Strategic Agenda, and three meetings followed: the first International Meeting of the pncs (Jul. 1–2, 2004), the second International Meeting of the pncs (Brasília, May 10–12, 2005), and the third International Meeting of the pncs (Georgetown, Nov. 2006).45 The issue was constantly addressed by the ps and solutions have been brainstormed on how to reinforce their role within the act’s framework.46 8.2

The 2004–2012 Strategic Plan

While the Amendment Protocol introduced institutional changes to the act, there were no major alterations at the macro level. The creation of the acto thus brought the need for a proposed reformulation of the cooperation activities, creating a continued dialogue between member countries and the ps, with the goal to achieve specific targets in the medium-term.47 Once the 43 44

45 46 47

43 44 45

46 47

act, ix mmfa, res/ix mre-otca/2 (Nov. 25, 2005). xiii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Iquitos, Peru, on Nov. 24, 2005, Acta Final. David França Ribeiro de Carvalho, O Tratado de Cooperação Amazônica no Contexto dos Processos de Integração Regional: da unidade fragmentada à unidade integrada 85–88 (2009) (unpublished Masters thesis, puc-mg), available at www.biblioteca.pucminas.br/ teses/Direito_CarvalhoDF_1.pdf. In the meetings held on July 12, 2004 and May 10–12, 2005. Paulo Henrique Faria Nunes, A organização do tratado de cooperação amazônica: uma análise crítica das razões por trás da sua criação e evolução in 13(2) Revista de Direito

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transition from the pts to the ps was concluded, it was essential to develop a strategic path forward. The new Secretary-General thus invited a transformation in the statements and in the vision about a common future in the region, fueled by concrete achievements rather than only ideological announcements. As soon as the ps was created, the effort towards a work plan began. A draft was submitted to the pncs and representatives of intergovernmental bodies, civil society and other third parties from the scientific community.48 The goal was to strengthen international relations of a South-South nature, using the Amazon as the common thread.49 The final draft of the 2004–2012 Strategic Plan was submitted at the xii acc meeting in 2004, and was adopted at the viii mmfa.50 It was released on October 2004, and describes the goals of the ps/acto in the medium-term, covering the 2004–2012 period. Member countries wished to reiterate the political will to strengthen regional cooperation, and give unrestricted support to carry out the needed efforts to ensure that the act became effective and achieved recognized results. The goal derived from the increasing relevance of the region within the geopolitical arena; the developed debate on the promotion of the sustainable development paradigm; the significant role played by the regional integration process and its economic importance to the international economy of the eight Amazon countries; the advantageous governmental and diplomatic cooperation and effort among countries, addressed to achieve equity, satisfactory living standards and acceptable health and social welfare standards, as an inherent right to the local Amazonian populations; the global aspect of environmental protection challenges in the Amazon; as well as the sovereign responsibility of the eight Amazon Country Members.51 The Plan’s vision repeated the goals and principles of the act. The mission represented the goal of making the targets developed and matured since the act was signed a reality: 48 49 50 51

48 49 50

51

In accordance with the principles enshrined in the act and in compliance with the mandates of the different institutional levels [of the treaty], I­nternacional (Brazilian Journal of International Law) 231 (2016), available at https:// www.publicacoes.uniceub.br/rdi/article/view/4037/pdf. Id., at 231. 2004–2012 Strategic Plan, supra note 3, at 9–11. xii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Manaus, Brazil, on Sep. 13, 2004, Acta Final. 2004 Declaration of Manaus, para. 6. Approved through act, viii mmfa, res/viii mre-otca/1 (Sep. 14, 2004). acto, supra note 3, at 15.

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to strengthen or create the technical and financial mechanisms, as well as the common or compatible policies, in order to make the processes of integration and sustainable regional development more effective, inducing the active participation of countries and regional and local actors in making and implementing different plans, programs and projects, as well as the equitable distribution of benefits generated, favoring the construction of synergies that increase the joint negotiating capacity of the countries in different global scenarios of regional interest.52 The Strategic Plan is not a strict agenda. Rather, it is a guiding tool, a navigation chart, subject to improvements and adjustments as programs and projects are implemented.53 It orients the ps through projects that promote sustainable development and protect the Amazon Basin. The chronogram is susceptible to changes and open to contributions from member countries. The incorporation of new elements is done through biannual plans, which are submitted to the ps through annual reports.54 The Plan identified some of the challenges faced by the acto. It addresses essential issues in Amazonian cooperation, such as the financial resources, institutional sustainability, inter-institutional networks, and international ­cooperation. While the ps had facilitated the institutional procedures and accelerated decision-making, consultation and approval of programs and projects, this was just the first step. The next step would be for the organization to actually execute, evaluate and monitor programs and projects. In addition, due to the slow-process of obtaining financial support and technical cooperation, which usually took from 1 to 3 years, projects would seldom evolve 52 53 54

52

53 54

Id., at 19. In the original: “No marco dos princípios consagrados no Tratado e em cumprimento aos mandatos das diferentes instâncias, fortalecer ou criar os mecanismos ou instrumentos técnicos e financeiros, bem como políticas comuns ou compatíveis, para tornar efetivos os processos de integração e desenvolvimento sustentável regional, fomentando a ativa participação dos países e dos atores regionais e locais na formulação e execução dos diferentes planos, programas e projetos, assim como na equitativa distribuição dos benefícios gerados, favorecendo a construção de sinergias que aumentem a capacidade de negociação do conjunto dos países em diferentes cenários globais de negociação dos temas de interesse regional.” Id., at 21. In the Strategic Plan, it was established that biannual plans would begin in 2005, including programs and projects to be developed, properly articulated with the Strategic Plan, and including duration, costs, and sources of funding.

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b­ eyond pilot programs. Finally, it was hard to maintain the focus on s­ trategic and ­programmatic issues as expressed in a “thematic” concept of actions, rather than on a vision of the multifaceted reality of the Amazon region. This, ­combined with complex decision-making processes, resulted in periods of ­inactivity that undermined the credibility related to the effectiveness of the Treaty undertakings.55 Framework of the 2004–2012 Strategic Plan The Strategic Plan emerged as a response to these challenges. It was ­structured around four strategic axes, six programmatic areas, and four operational instruments, all under the ps’s responsibilities. The four strategic axes, which correspond to different spheres of decision-making and management in the acto, are: (i) conservation and sustainable use of renewable natural ­resources, (ii) management of knowledge and technological exchange, (iii) regional integration and competitiveness, and (iv) institutional strengthening. Through a more streamlined approach, the acto aimed to provide coherence as a form of organizing programs and project to be developed in the coming years.56 In addition to the strategic axes, the matrix of the Strategic Plan is composed of six programmatic areas: (i) water, (ii) forests/soils and protected natural areas, (iii) biological diversity, bio-technology and biotrade, (iv) territory planning, human settlements and indigenous affairs, (v) social infrastructure, health and education; and (vi) infrastructure of transportation, energy, and communication. The programmatic areas are transversal and multi-sectoral, since all actions within the acto shall impact one or more strategic axes. These should thus inspire all programs and projects. Finally, there are four operational instruments, necessary for the acto to conduct its activities and effectively implement the plan, namely (i) biannual plans of action, (ii) use of gis systems, analysis of change (monitoring, evaluation of reports) (iii) coordination/cooperation with other parties and regional initiatives, and (iv) information and documentation. The administrative and financial management system and quality management also plays a part in the operational structure. The operational tools and intervention spaces synthesize the consensus achieved.57 55 56 57

55 56 57

Id., at 20. Id., at 20. Id., at 64–79.

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Table 24

Logical matrix of the 2004–2012 strategic plan58

Strategic Axes / Programmatic areas

Conservation and sustainable use of renew­ able natural resources59

Knowledge ­management and technol­ ogical exchange60

Integration and regional competitive­ ness61

Institutional strenghten­ ing62

Intervention spaces Water63 Integrated management of hydrobiological resources Standard agreement on measures towards preventing contamination The sustainability of the Amazon as a standing forest Forests/soils and protected natural Criteria for sustainable forest management (Tarapoto Process) Integral management of natural protected areas areas64 Ecotourism Biological diversity, Regional Amazon strategy on biodiversity Regional Amazon programme on biotrade bio-technology and biotrade65 Territory ordering, Ecological and economic macro-zoning Cultural diversity and respect for the rights of indigenous human settlements and indig- people Training of indigenous leaders enous affairs66 Social infrastruc- Network on epidemiological surveillance and fight against malaria ture, health and Fomentation of cross-cultural and bilingual education education67 Support to local capacity building Virtual education 58 59 60 61 62 63 64 65 66 67

58 59 60 61 62 63 64 65 66 67

Id., at 24. Id., at 25–28. Id., at 29–30. Id., at 31–34. Id., at 35. Id., at 38–41. Id., at 42–49. Id., at 50–53. Id., at 54–57. Id., at 58–61.

227

Fourth Period of Cooperation Within the act’s Framework Knowledge ­management and technol­ ogical exchange60

Institutional strenghten­ ing62

Strategic Axes / Programmatic areas

Conservation and sustainable use of renew­ able natural resources59

Transportation, electric power and communication infrastructure68

Initiative on integration of the South American regional infrastructure Free navigation in the Amazon rivers System of early warning aiming at preventing disasters

Integration and regional competitive­ ness61

The strategic axes, programmatic areas, and operational instruments coordinate according to the matrix in Table 24. Environmental Agenda Envisioned in the 2004–2012 Strategic Plan The main challenge highlighted in the Strategic Agenda, with respect to conservation and sustainable use of renewable natural resources, was to contribute towards creating economic opportunities while also ensuring environmental conservation. Indeed, the balance between socio-economic development and environmental protection has always been at the core of forest policies of Amazon countries, presenting an ethical challenge hard to overcome. The Strategic Agenda established a goal to rationally use the region’s wealth based on the available scientific and technological advancements. Through the development of alternative markets, the unsustainable patterns that characterized the use of products and services offered in Amazonian forests could be changed.69 A shift from traditional models could open new possibilities to ­manage natural resources and the ecosystem, such as genetic knowledge, ecotourism, timber and non-timber derivative products certified by the itto, phytotherapeutics, cosmetics, and food products, all of which could generate ­income and allow for the Amazon region to be integrated into the rest of the territory. The development of an export market of products with a certificate of Amazon origin would require the reduction of commercial barriers within member countries, as well as with developed countries, and the adoption of measures to control genetic resources and traditional knowledge.70 Finally, projects related

68 69 70

68 69 70

Id., at 62–63. Id., at 25. Id., at 26.

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to the Clean Development Mechanisms (cdm) also provide an opportunity in the region. The idea was to change the economic investment in the region, creating new markets and potential avenues through technological innovations. In order to address those challenges, the support from other regional and international organizations was highlighted. The Strategic Plan established the specific goal to adopt a Regional Strategy on Biodiversity to build common mechanisms and tools, as well as articulate positions in international forums of negotiation. The strategy is complementary to other sub-regional strategies adopted by can.71 Furthermore, the iucn offered support for the Amazon Regional Biodiversity Strategy, based on the experience with the National Biodiversity Strategies, and development of a South American initiative on biodiversity.72 With respect to the “Forests, Soils and Protected Natural Areas” programmatic area, the Plan addressed the challenge to identify and develop alternative, feasible, economically competitive, and environmentally sustainable technologies and methods to replace the regional agriculture-based economy focused on traditional crops and subsistence farming, which have low competitiveness in regional and local markets.73 The agenda highlighted previous acto’s efforts in preparing a regional inventory and matching research methodologies, as well as exchanging information on natural resource research and socio-economic results. In addition, a coordinating system for monitoring land use and occupation processes was developed, as well as forestry management, to provide a basis to undertake decisions on sustainable development of the region, adopt environmental management criteria and policies for the Amazon region, coordinate and support a horizontal cooperation mechanism.74 In addition, efforts of national and regional agricultural research institutions were highlighted, which orient the development of specific agendas of the acto.75 Within the framework of forest protection, the Tarapoto Process was highlighted.76 The development of the initiative that started in Phase 4 will be analyzed below. One of the strongest advantages of the Tarapoto Process was its articulation with national initiatives. Indeed, it provides additional input and articulates with the efforts carried out through the National Forestry Plans 71 72 73 74 75 76

71 72 73 74 75 76

Decision 523 of the Andean Council of Ministers of Foreign Affairs. 2004–2012 Strategic Plan, supra note 3, at 26. Id., at 43. Id., at 43. Id., at 44. Id., at 44. See Section 7.4. and Section 8.4.

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(nfps), which considers environmental goods and services provided by the Amazon forests. In addition, it provides a path towards compliance with the commitments arising from international agreements and forums.77 As such, the Tarapoto Process became a model program for regional cooperation, articulating with both the national and international levels. Furthermore, the agenda advises the acto to consider national initiatives that could be replicated in other countries, so that others could benefit from the experiences acquired and the successful program could be expanded to the Amazonian biome as a whole. For example, the Pilot Project of Protection to Brazilian Rainforests, known as Brazil-PPG7. Communication and coordination should be directed to regional or subregional forestry networks, which would set the stage for building synergies among the several institutional and social players as well as local communities, in face of the different scenarios of global interest to the Amazonian countries.78 The Plan highlighted the declaration of protected areas as one of the main mechanism for in situ protection of biodiversity.79 Nonetheless, it noted that declaring protected areas is only the first step in promoting conservation, and insufficient to fully protect them. For this purpose it is necessary to innovate by involving protected areas in broader programs on conservation and development.80 The Durban Declaration called for integral networks of protected areas that involved all eco-regions, with special emphasis on ecosystems that are threatened or insufficiently protected or spatially fragmented. These networks are intended to establish biological and cultural corridors that facilitate the flow of species, as well as the exchange and reevaluation of the traditional knowledge of local populations.81 Ecosystem services of protected areas were also noted, with ecotourism specially highlighted. As such, the Plan called for policies for the development of the tourism sector, as well as policies to address the lack of infrastructure and public services in the region. For this purpose, the ps/acto was granted the mandate to reinitiate a proposal for formulating a Regional Program to the Sustainable Management of the Amazon Protected Areas, which should take off from previous efforts developed by the ACT from 1993 to 1997, with the technical and financial support of the ­European Union, supported by the Centre de Coopération Internationale en Recherche Agronomique pour le Developpement (cirad). The support of 77 78 79 80 81

77 78 79 80 81

Id., at 46. Id., at 46. Id., at 46. Id., at 47. Id., at 47.

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other organization was highlighted, such as the iucn, fao ­Latin-American Network of Protected Areas.82 Additionally, the ps/acto took the first steps towards developing cooperation links with the Program for Man and Biosphere (mab) of United Nations Educational, Scientific, and Cultural Organization (unesco), which is intended to use the intergovernmental arena to foster conservation, preservation and expansion of the biosphere reserves, many of which harbor strategic Amazon sub-regions in some of the Country Members, as well as for outlining and executing the Regional Program to the Sustainable Management of the Amazon Protected Areas.83 8.3

Implementation of the Strategic Agenda

The Strategic Agenda 2004–2012 showed that the institutionalization of the acto gave way to a new phase in the cooperation process, characterized by a growing dynamic between member countries, the acto and its bodies, as well as other international institutions.84 However, it was a highly ambitious document. It was important to suggest mechanisms to achieve the proposed goals in addition to the thematic agendas to guide the organization. As a result of the coordinated action, the acto envisioned more visibility and institutional recognition for the organization, transforming it into a regional reference for the development and financing of activities in regional cooperation.85 Indeed, the Strategic Plan discussed financial resources, institutional sustainability, inter-institutional networks and international cooperation.86 One of the main goals was to interact institutional mechanisms in a more organized manner through the matrix.87 Mechanisms for Implementation of the Strategic Agenda In addition to the logical matrix, mechanisms in financial resources, institutional sustainability, inter-institutional networks, international cooperation, and strengthening of the pncs and Special Commissions were discussed. The goal was for the acto to lead the region through a strategic vision for sustainable 82 83 84 85 86 87

82 83 84 85 86 87

Id., at 48. Id., at 49. Id., at 147. acto, 2006. Rodolfo Ilário da Silva, supra note 2, at 148. 2004–2012 Strategic Plan, supra note 3, at 20.

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development, identifying different players, programs and/or projects, as well as synergies for overcoming the restrictions on its implementation, thus ­achieving higher levels of effectiveness.88 The implementation of the plan was envisioned through national entities responsible for technical cooperation within the act’s framework. In order to implement them, coordinated actions between national agencies, the acto, and third parties, which are possible funders, was sought after. Through this strategy, the goal was to avoid a multitude of activities at once, and the development of a bureaucratic permanent staff without real need to do so.89 Role of Different Stakeholders The operational structure thus includes stakeholders at three different levels: (i) agencies and/or bodies at the acto; (ii) the national level; and (iii) the external level. The implementation promoted at the acto is mainly led by the ps. The ps/acto promotes the organization, coordination, and approval of projects. The National Entities, thus participating in regional cooperation, are responsible for International Technical Cooperation to promote consultations and follow-up. At the national level, the Technical National Units of Coordination and Execution are in charge of the operational actions.90 These are essential to achieve the goals of the strategic agenda. Through technical units, which execute projects, a permanent forum for consultation and coordination between countries is established. pncs were urged to take a proactive role in formulating policies and strategies related to national and regional priorities for the sustainable development of Amazonia. In addition, the role of other regional organizations in promoting cooperation was specifically acknowledged.91 The Strategic Agenda encouraged building a space for political and economic integration in South America on the basis of other existing mechanisms of cooperation, such as Mercosur the Andean Community, the aladi, the Intergovernmental Coordinating Committee of the Countries of the Plata Basin, caricom, among others. The relevance of external sources of funding was also highlighted, with especial ­relevance given to caf and bid.92 As a consequence of the mandate of the Strategic Agenda, there was a tendency to open the acto to external participation, as well as to bring 88 89 90 91 92

88 89 90 91 92

Id., at 35. Paulo Henrique Faria Nunes, supra note 338 at 231. 2004–2012 Strategic Plan, supra note 3, at 14. Id., at 13. act, viii mmfa, Declaración de Manaos (Sep. 2004).

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the ­organization to other cooperative circles in the region. Indeed, at the viii mmfa, member countries discussed the possibility of having external observers at the meetings, something that had been envisioned by the treaty but had not yet been put in practice.93 An example was the government of France, as well as other countries that could boost decisions related to the global sustainable development agenda.94 Finally, the acto decided to ensure broader participation in international forums. As such, member countries asked the ps to initiate the proper procedures to accredit the acto as an observer in international, regional, and subregional bodies such as the oas, and other specialized agencies of the un, and to keep searching for additional opportunities to establish strategic alliances with other agencies for cooperation and integration.95 The Strategic Plan highlighted the role of partnerships and cooperation with third parties as essential.96 Indeed, inter-institutional networks were created to implement programs and projects throughout the development of regional cooperation. For example, unamaz as the network of universities, which has had a particular role in agro-ecological policies. The Amazon Initiative was developed since 2002 through collaboration between research institutions from Amazon countries97 and international centers for agriculture research98 to develop policies, technologies and institutional innovations to reduce the negative impacts of unsustainable uses of land.99 It was essential, however, that the work done by the ps/acto was aligned with the priorities of member countries. Within this context, countries were 93 94 95 96 97 98 99

93 94 95 96 97

98

99

act, viii mmfa, Declaración de Manaos, ¶39 (Sep. 2004). xiii Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Iquitos, Peru, on Sep. 13, 2004, Acta Final. act, viii mmfa, res/viii mre-otca/5 (Sep. 14, 2004). acto, supra note 49, at 72. Such as Instituciones nacionales de Investigación Agropecuaria (inias), the Empresa Brasilera de Pesquisa Agropecuaria (embrapa); the Corporación Colombiana de Investigación Agropecuaria (corpoica); the Instituto Nacional de Investigación Agropecuaria del Perú (inia); the Instituto de Investigaciones de la Amazonía Peruana (iiap); the Instituto Nacional Autónomo de Investigaciones Agropecuarias del Ecuador (iniap). acto, supra note 49, at 72. Such as the Centro Internacional de Agricultura Tropical (ciat); the Center for Internacional Forestry Research (cifor); and the Internacional Center for Research in Agroforestry (icraf), part of the Consultative Group on International Agricultural Research (cgiar). acto, supra note 49, at 72. 2004–2012 Strategic Plan, supra note 3, at 72–73.

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acto National Level •Technical National Units of Coordination and Execution

•Permanent Secretariat / acto •Regional Project Technical Unit •National Entities responsible for International Technical Cooperation

External Level •Financial and / or Cooperation Organizations and Agencies

Figure 5 Flowchart of the operational structure for the 2004–2012 Strategic Agenda.

encouraged to facilitate synergies and promote cooperation. An alliance with iucn was suggested, through an initiative that promoted cooperation between different national actors, both at the governmental and non-governmental level, and international cooperation, thus developing synergies between the different agendas and sectoral interests.100 The flowchart of stakeholders can be depicted in Figure 5. Accountability of the ps/acto In addition, the acto envisioned practical ways in which to hold the ps/acto accountable for the implementation of the Strategic Plan. Indeed, as a way to break medium and long-term goals into smaller actions, biannual plans of actions were required. These would provide internal planning, inform and orient member countries, as well as allow the ps to evaluate implementation.101 Projects should establish methodologies, goals, indicators and other mechanisms to ensure its fulfillment, as well as indicate external factors that might risk it.102 For example, starting 2005, the Strategic Plan envisioned an annual publication to be developed by the ps that would provide a critical analysis of the results of the implementation of the biannual action plan, so that 100 101 102

100 Id., at 73. 101 2004–2012 Strategic Plan, supra note 3, at 67. 102 Id., at 67.

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g­ overnments could properly evaluate the development of the organization and propose a­djustments when necessary.103 Another priority mechanism was the ­development of a website for the ps, as a tool for communication and information.104 Projects under Development and Planned In 2006, there were 9 projects under development by the ps, as highlighted in Table 25. The majority was concentrated in the environmental field, or towards the institutional strengthening of the treaty.105 The majority of partners include fao, pnuc, oea, World Bank, wwf and gef.106 Table 25

acto projects under development in 2006107

Partner

Project

idb

Regional Biodiversity Management Project Integrated and Sustainable Use of Water Resources Economic Use of Biodiversity Project Project proposal for Conservation of the Amazon Rainforest ii Cultural Projects “acto Award” and “Discovering the Amazon: acto and Youth Paths of Orellana” Validation of Sustainability Indicators of the Amazon Forest (Tarapoto Process) Proposal of civil society participation in the acto

gef / unep / oas Unctad / Netherlands / gtz / unf gtz / bmz Governments / Private sector fao iucn / fla – idb

103 104 105 106 107

103 104 105 106 107

Id., at 67. Id., at 69. Rodolfo Ilário da Silva, supra note 2, at 146. Id., at 146. de la torre 2003, apud torrecuso 2004, p. 63. Rosalía Arteaga Serrano, supra note 23, at 98.

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Partner

Project

us Government

Preventing and Combating Contamination by Mercury Proposal for the delimitation of the Amazon region

hei-eu

In addition, the following projects were projected, as highlighted in Table 26. Table 26

acto projects planned in 2006108

Partner

Project

epa – us / unep / mma – Brazil

Prevention and Control of Mercury Contamination Study of the technical, financial and political feasibility of establishing a Development Solidarity Fund Proposal of project in the area of health Amazon Project Regional Project for governance, monitoring of forest cover. Protected Areas Program Andes Amazon Program Transboundary Parks Economic aspects for sustainable development and management of indigenous lands

caf

Opas Moore Foundation itto wwf – Cirad gtz / Icraf kfw Netherlands

108

108 Id., at 99.

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Finally, several alliances were formed during the period, as is highlighted in Table 27, which depicts the 2004 and 2005 years: Table 27

Alliances between the ps and third parties (2004–2005)109

May 25, 2004 (Brasília)

Agreement between the acto and fao. Integrated forest management, sustainability criteria and indicators of the Amazon Forest, “Tarapoto Process” June 15, 2004 (São Paulo) acto – unctad Memorandum of Understanding to boost sustainable trade and investments in biodiversity products and services in the Amazon region August 30, 2004 (Brasília) Letter of Understanding acto – Coordinating Intergovernmental Committee of the Countries of the Plata Basin (cic), for the exchange of information and cooperation on activities of common interest September 21, 2004 (Santa acto – Unamaz Cooperation Agreement, Cruz de la Sierra) reinforcement of the network of Amazonian Universities September 29, 2004 (Lima) Memorandum of Understanding acto – can October 15, 2005 (Brasília) acto-Ambi Letter of Understanding on Collaboration in the Andes-Amazon Expedition October 25, 2004 (Quito) acto – Coica Memorandum of Understanding January 17, 2005 (Caracas) acto – caf Cooperation Agreement, Elaboration of a proposal for a Solidarity Development Fund January 27, 2005 (Washington) acto-oas Cooperation Agreement February 3, 2005 (Washington) acto / paho / who Framework Agreement. Endemic diseases. Epidemiological surveillance 109

109 Rodolfo Ilário da Silva, supra note 2, at 145. serrano (2006). otca, 2006.

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Alliances between the ps and third parties (2004–2005) (cont.)

June 25, 2005 (Bahia)

July 25, 2005 (Washington)

acto-oas Cooperation Agreement to implement resources from the Global Environment Facility (Fmam / gef) to prepare and implement the project “Integrated and Sustainable Management of Transboundary Water Resources in the Basin Of the Amazon River” acto-idb agreement to promote the conservation and sustainable use of Amazonian biodiversity. Regional action plan for biodiversity



Results Achieved as a Consequence of the Implementation of the Strategic Plan As a consequence of the implementation of the Strategic Plan, the following results were achieved: (i) effective participation of Amazonian countries at the unff, which allowed for a consolidated and consensual position of the Amazonian countries within that framework; (ii) the discussion about a future regulation of navigation in Amazonian rivers was resumed, an important instrument for the economic and social development of the region; (iii) increase resources for sustainable development; possibility of expanding to other Amazon countries the benefits of security and defense of their territories, through the Amazon Surveillance System (Sivam); (iv) promotion of the rights of indigenous communities; and (v) cooperation in management of water resources; and holding of thematic ministerial meetings, such as in the themes of industrial and intellectual property, and science and technology.110 However, in comparing the deliberations from the main bodies of the acto, and the activities developed within the treaty’s framework, it becomes clear that many projects are proposed, showing an interest in advancing ­cooperation,  but few are actually put into practice.111 While the period advanced more projects and activities than others within the act/acto’s framework, it nonetheless shows some challenges in implementation that are still to be overcome. 110 111

110 Antonio José Ferreira Simões, supra note 1, at 40. 111 Torrecuso, 2004, p. 65.

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Institutional Crisis

With the end of the tenure of Dr. Arteaga, an institutional crisis was established. An Extraordinary acc Session was held in 2007 for the purpose of deciding the next Secretary-General.112 Two candidates were suggested: one by Peru, supported by Colombia, and another by Bolivia, supported by Venezuela.113 However, countries couldn’t agree on a successor. It took member countries 3 years to decide, and the role was vacant from June 2007.114 Executive Director Francisco Ruíz Marmolejo, from Colombia, was the interim Secretary General during that period.115 The lack of agreement showed the political difficulties faced by the organization. Indeed, the lack of a uniform view not only related to who would replace Dr. Arteaga, but on the role of the Secretary General itself. It was often argued that the way Dr. Arteaga conducted the acto conflicted with the original structure of the treaty. While the treaty requires regional actions to be subordinate to the political decisions of the bodies of the acto, the SecretaryGeneral was often more proactive, taking charge of initiatives in the name of the organization. Member countries argued, however, that the institution as a whole lost legitimacy due to the lack of consensus, even if it boosted cooperation and provided a faster response to activities.116 Within this context, the role of the ps was also discussed. Member countries argued that it was a mechanism to serve the acto, providing a link between member countries, rather than a separate agent above, or below the bodies of the organization.117 The lack of consensus on a Secretary General led to insufficient actions by the ps. There was no strategy that properly defined the role and obligations 112 113 114 115 116 117

112 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 113 Id. 114 Rodolfo Ilário da Silva, supra note 2, at 151 (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente? Unpublished Masters Thesis, Instituto Rio Branco, 2009). 115 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. RES/SESIÓN EXTRAORDINARIA/CCA/02 (Jul. 2, 2007) nominated Sr. Francisco José Ruíz Marmolejo as interim Secretary-General until Aug. 29, 2007. The role was extended until September 30 by the RES/SESIÓN EXTRAORDINARIA/CCA/01 (Aug. 29, 2007), and once again until October 31 by the RES/SESIÓN EXTRAORDINARIA/CCA/01 (Sep. 26, 2007). 116 Rodolfo Ilário da Silva, supra note 2, at 150. 117 Id., at 150 (citing Pires, 2011, p. 12).

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of the ps, affecting the ps and member governments, and the fulfillment of its functions. In order to address the crisis and choose a successor, an ad hoc working group was created.118 Financial Mechanisms In addition to the political challenges faced by countries, other institutional difficulties arose in terms of the required funding of the organization. Although countries had agreed on the quotas to be paid by each member in the previous phase, these were not immediately complied with, something that was highlighted on multiple occasions.119 In addition, the quotas had not been updated since 2004, and were devaluated to approximately 40 percent.120 In addition, the salaries of the Secretary-General, the directors and coordinators amounted to 48 percent of the us$1,139,600.00 annual budget, without considering supporting staff.121 Costs within the budget, and therefore approved by the acc, amounted to us$1,237,000.00. Additional projects beyond the budget, organized by the organization with third parties such as the wwf, World Bank, Gordon and Betty Moore Foundation amounted to us$2,000,000.00. Finally, other projects not managed by the acto amounted to approximately us$3,100,000.00. Within this context, the contributions of member countries represented less than 20 percent of the total costs of the organization.122 In order to implement projects and activities, it was essential to rely on external funding. The Strategic Plan required the ps to propose alternatives for funding of strategic programs and projects of the organization.123 At the viii mmfa, member countries reiterated the need to develop mechanisms to promote incentives for regional and external sources of funding, especially in tourism and ecotourism. They decided to analyze the possibility of creating an institutional mechanism to gather resources to finance sustainable development, i­ ncluding

118 119 120 121 122 123

118 xlviii ccacc meeting (Oct. 16, 2008). See das ii / mre. Rodolfo Ilário da Silva, supra note 2, at 151. 119 act, viii mmfa, res/viii mre-otca/1 (Sep. 14, 2004). Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 120 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 121 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 122 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. Reunión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Sep. 26, 2007, Acta. 123 2004–2012 Strategic Plan, supra note 3, at 71.

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a study of mechanisms that allowed for the adequate compensation of those activities within Amazonia.124 Some members proposed creating a regional fund. As such, a study to examine the technical, political and financial implications of an institutional mechanism to gather resources to finance sustainable develop and adequately compensate the services generated in the region was suggested.125 The study would include the revision of quotas, adjusted according to the capabilities of countries.126 Ad Hoc Working Group As a result of the institutional crisis led by the difficulty in choosing a successor for Secretary-General and the lack of financial autonomy in the institution, an ad hoc working group was instituted.127 In addition to addressing the challenges faced, the working group was required to evaluate the roles of the thematic coordinators, which had in practice substituted the Special Commissions. It was also an opportunity to gather more information from member countries with respect to their priorities in the region.128 The ad hoc working group indicated that the priority for Amazon countries was the sustainable development of the region according to the Strategic Plan. However, the working group condemned the participation of the ps in discussions about climate change in international forums, as it would go beyond its mandate. Although there was a general mandate, there was no single position agreed by all member countries.129 The affirmation was responsible for the increased lack of participation of the organization in the international negotiations on climate change. With respect to the thematic coordinators, the ad hoc working group concluded that these were not properly regulated, and there were no precise direction as to the work or supporting staff necessary to its activities. In addition, 124 125 126 127 128 129

124 act, viii mmfa, Declaración de Manaos, ¶33 (Sep. 2004). 125 act, viii mmfa, res/viii mre-otca/10 (Sep. 14, 2004). Reinforced in the Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 126 Sesión Extraordinaria del Consejo de Cooperación Amazónica, held in Brasília, Brazil, on Jul. 2, 2007, Acta. 127 xlviii ccacc meeting (Oct. 16, 2008). See das ii / mre. Rodolfo Ilário da Silva, supra note 2, at 151. 128 Id., at 151. 129 Id., at 154 (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente? 37, Unpublished Masters Thesis, Instituto Rio Branco, 2009).

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there was no mechanism of communication between the technical departments, often leading to gaps or duplicate work. Finally, the work of thematic directors often overlapped with those of external consultants, affecting their work.130 External consultants often failed to articulate with technical departments and participate in international forums representing the acto without previous agreement on a regional policy. A regulation of the financial aspects of hiring an external consultant was suggested, as well as limiting the participation in international meetings to staff members only.131 Finally, the working group suggested the reactivation of the Special Commissions, and the reform of the regulation of the ps regarding the thematic departments. With regards to the environmental department, it concluded that it had the largest amount of projects under development, divided into four areas: forests, water, biodiversity and climate change.132 However, some challenges were noted, namely the lack of staff, the independent work done by external consultants, the lack of communication between the thematic coordinators, and the amount of time it tool for member countries to speak their minds about projects.133 The working group recognized the urgent need to elect a new Secretary General, and suggested that the acto cancelled all activities, except for projects with guaranteed financial resources, or that were supported by agreements with third parties. It instructed the new interim Secretary General not to initiate any activities without the approval of the ccacc. In order to address the financial challenges, a reorganization of the structure of the acto was suggested, in addition to the development of a new administrative and financial mechanism, and a further examination of the possibility of increasing the annual contributions of countries, in order to reduce the dependency from third parties.134 ccacc Improvements after the Ad Hoc Working Group Based on the recommendations, the ccacc decided on a deadline to elect a new Secretary General.135 Without a Secretary General, the capacity of the 130 131 132 133 134 135

130 131 132 133

Id., at 151. Id., at 154. Id., at 152. Id., at 152, (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente?, 37, Unpublished Masters Thesis, Instituto Rio Branco, 2009). 134 Id., at 155. 135 Meeting held on Dec. 10, 2008, proposed to elect a new sg by March 2009.

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acto was diminished. Within that context, the ccacc immediately suspended all projects, as well as any paid activities, and required the ps to provide a list of consultants and staff financed by international cooperation. These mandates were properly complied with. In addition, the ccacc decided to reactivate Special Commissions, present a new functional structure to the acto, and request a new financial instrument. These, however, were not complied with in the fourth phase.136 A mechanism to elect a new Secretary General was approved: a lottery system would indicate the first country to choose the next candidate. The country would have a month to announce the candidacy, which would be accepted by all member countries. The following candidates would follow an alphabetical order. If a country did not comply – or did not want to comply – within 2 months, the next country would follow.137 The lottery was done at the next ccacc meeting.138 Brazil, the headquarters of the acto, and Colombia, which had the interim executive director for two years, chose not to participate. Peru was chosen through the lottery system, and Ambassador Manuel Picasso Botto became the Secretary General. The new sg had several meetings with government agencies in Brazil, deciding to improve the institution through a series of measures, including: to give more visibility to the acto, reactive the pncs, have a new meeting of the presidents, and reformulate the 2004–2012 Strategic Plan. 8.5

Environmental Agenda

The Strategic Agenda promoted the sustainable development of Amazonia, and suggested ways in which to advance conservation and sustainable use of natural resources. Indeed, it was important to find alternative ways to use the regional resources, therefore furthering socio-economic development, without compromising future use patterns. Some suggestions addressed the areas of ecotourism, genetic resources, certified timber and non-timber resources. The general goal was to change the unsustainable pattern of exploitation that had been for decades promoted in the region. Despite the insufficient funds 136 137 138

136 Rodolfo Ilário da Silva, supra note 2, at 155. 137 Id., at 156. (citing Hayle Melim Gadelha, A otca na política externa brasileira: interesse minguante ou utilidade crescente? Unpublished Masters Thesis, Instituto Rio Branco, 2009). L ccacc meeting. 138 li ccacc (March 16, 2009).

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and the institutional crisis that the acto was under at the second half of the fourth period, several projects advanced the environmental agenda. The main initiative was the Tarapoto Process, which further advanced the process that began in the previous period. Nonetheless, several other initiatives in forest management and protected areas were initiated. Indeed, the acto participated in workshops for the improvement of forestry legislation at the national level (alfa project), started an approach for the regional monitoring of deforestation, and advanced several discussions on protected areas, ultimately leading to the adoption of a Regional Program on Protected Areas and a Biodiversity Regional Program. Initiatives regarding the management of water resources started to be discussed.139 Finally, the acto discussed ways in which the organization could approach climate change at the regional level, thus improving participation in global negotiations. Within the context of protected areas and ecological biodiversity, the acto had the specific goals for the period:140 (i) to develop the Action Plan on Amazonian Biodiversity; to (ii) evaluate the complementary mechanisms for financing and maintenance of protected areas; (iii) to develop the agenda for the establishment of transnational ecological corridors and corresponding border or binational protected areas; (iv) to promote regional political dialogue to support the implementation of the cbd.141 By 2008, the following projects were under development: (i) Biodiversity Program;142 (ii) Project “Strengthening of Joint Regional Management for the Sustainable Use of Amazonian Biodiversity”;143 (iii) Regional Amazon Program;144 (iv) Support to the Trinational Program for Conservation and Sustainable Development of the Management Corridor between the Protected Areas La Paya (Colombia), Güeppí (Peru) and Cuyabeno (Ecuador).145 These projects will be analyzed in 139 140 141 142 143 144 145

139 The gef Project, which was suggested during the fourth period, actually started developing in the subsequent phase, and will therefore be explained in the following chapter. 140 According to the acto 2007–2008 Action Plan. 141 redparques and wwf, Taller Construcción De Una Visión De Conservación Regional Para La Amazonia, Memorias (Aug. 28–30, 2008, Bogotá, Colombia), available at http:// assets.panda.org/downloads/memorias_taller_amazonia_redparques_2008.doc. 142 Programa otca Biodiversidad (otca/bid) 2005. 143 Proyecto “Fortalecimiento de la Gestión Regional Conjunta para el Aprovechamiento Sostenible de la Biodiversidad Amazónica”. 144 Programa Regional Amazonia (otca/dgis/ gtz) 2006. 145 Apoyo al Programa Trinacional de Conservación y Desarrollo Sostenible del Corredor de Gestión entre las Áreas Protegidas La Paya (Colombia), Güeppí (Perú) y Cuyabeno (Ecuador).

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this section.146 In addition to the projects highlighted here, the acto developed initiatives regarding biocommerce, regional ecotourism, health, science and technology, and the development of a regional agenda for indigenous groups.147 As a result of the Meeting of Coordination of the Environmental Agenda of the acto, held in Brasília on August 2011, the Rio+20 was discussed, and the ACTO received the mandate to, promote dialogue between countries, and explore common themes of interest and cooperation. The Tarapoto Process148 In the 2004–2012 Strategic Plan, the acto stressed the importance of continued efforts in adopting a regional methodology to attain uniform sustainable development in Amazonia. The Tarapoto Process, which had started during the previous phase of development, thus continued into Phase 4. The Tarapoto Process is arguably the most successful example of a regional approach towards sustainable development in Amazonia. As seen during the previous chapter, the first phase of the Tarapoto Proposal included a series of consultative processes led in all Amazon countries, and resulted in a set of 12 criteria and 77 indicators to guide sustainable forest management. These were divided into three categories: national, management units, and global. For the second phase of the Tarapoto Process, fifteen indicators were prioritized. The 15 indicators approved at the regional level were: (i) existence of policies and legal framework for land-use planning, through the EcologicalEconomic Zoning; (ii) extent of areas by forest type in relation to the total area; (iii) conversion rate of forest cover for other purposes; (iv) quantity and quality of technologies appropriate for the management of sustainable production; (v) investments in research, education and technology transfer; (vi) quantity and quality of research projects and sustainable development implemented; (vii) forest management plan and other plans related to the use of resources approved by the competent authority; (viii) frequency and evolution of compliance with the management plan and average percentage of compliance; 146 147 148

146 The Trinational Program was only developed in the following phase, and will be discussed in the following chapter. 147 Sandra Lefcovich, Informe de Gestión, Organización del Tratado de Cooperación Amazónica, (July 2007–July 2008). Available at http://www.otca.info/portal/admin/_upload/publicacoes/SP-OTCA-INF-2008.pdf. 148 Until 2002 the process was called “Tarapoto Proposal”, it became “Tarapoto Process” with the Resolution res/vii mretca/7 of November 2002. See: Secretaría Pro Tempore del Tratado de Cooperación Amazónica (2002): Base jurídica del Tratado de Cooperación Amazónica. Antecedentes constitutivos de la Organización del Tratado de Cooperación

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(ix) level of use of environmentally-friendly, appropriate and compatible technologies; (x) proportion of the areas of environmental protection compared to the areas of permanent production; (xi) existence of preventive measures to protect watercourses against impacts resulting from the logging activity; (xii) number of direct and indirect jobs and level of admissions; (xiii) contribution to the conservation of biological diversity; (xiv) contribution to the maintenance, rescue and protection of the diversity of local indigenous peoples; and (xv) contribution to the economy, health, culture, science and recreation.149 The fifteen indicators corresponded to eight criteria, which measured and evaluated the effectiveness of forest management in the region. At the vii mmfa, the Validation of the 15 Priority Indicators of Sustainability of Amazon Forests was approved.150 The second phase thus improved the criteria and indicators towards a more focused approach, thus validating the indicators at the national level. The validation project had the main purpose of identifying a series of indicators to facilitate monitoring, evaluation, and dissemination of the process of sustainable forest management in Amazonia. The system was implemented by each country, and involved training programs, information gathering, identifying key stakeholders, and holding regional talks.151 In order to implement the Tarapoto Process, the ps/acto signed a Technical Cooperation Program with the fao.152 Through the agreement, it received the technical cooperation and financial support amounting to us$400,000 for executing the ­second stage of the process. The ps/acto established the corresponding Regional Technical Unit, and held the first work meeting with the national ­coordinators responsible for forestry management in the eight Amazon countries.153 The First Workshop of Coordination and Programming was held in Lima on July 26 and 27, 2004. 149 150 151 152 153

149 150 151

152 153

Amazónica – otca-. La Paz – Bolivia: Producciones Cima. Available at http:// www.otca .info/ portal/admin/ _upload/publicacoes/SPT-TCA-BOLSN_BJ.pdf. Pages 161–162. mma, supra note 161, at 12. act, vii mmfa, RES/VII MRE-TCA/7 (Santa Cruz de la Sierra, Bolivia, Nov. 22, 2002). Siu Lang Carrillo Yap, Comparative analysis of the legal aspects of the Tarapoto Process and the Helsinki Process in iufro, Legal Aspects of European Forest Sustainable Development 131 (May 2011), available at https://www.academia.edu/8406627/Comparative_ analysis_of_the_legal_aspects_of_the_Tarapoto_Process_and_the_Helsinki_Process. Signed on May 25, 2004. See historical overview act, viii mmfa, RES/VIII MRE -OTCA/4 (Sep. 14, 2004). 2004–2012 Strategic Plan, supra note 3, at 45.

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The project was executed between July 2004 and May 2006. Between 2005 and 2006 the Tarapoto Process154 conducted an additional series of national consultations.155 These prioritized indicators in all the member countries for knowing the countries possibilities of getting the information required by the indicators. For example, variables such as the cost and difficulties to obtain information, the level of capacity required, and the institutional capacity of government agencies were taken into consideration.156 The criteria and indicators were tools to define, evaluate, and control the progress in sustainable forest management. These define elements of ­principles to determine if sustainability was reached. Each criteria is defined through quantitative and qualitative indicators, which are measures and regular controls to determine the effects of the activities of intervention and non-­ intervention on forest management.157 In order to allow for easier ­comparison between countries, each criterion had a specific weight according to its relevance. Results between 100 and 75 percent were considered valid. Results between 74 and 50 were considered observed. Performances below 50 percent were considered not validated.158 As a result of the national consultations, Brazil validated 11 indicators, and four were considered observed. No indicator was considered not validated.159 Based on the legal framework and some of the quantitative indicators, the results showed that Brazil had evolved towards the sustainability of the Amazon rainforest. For example, Brazil has a legal framework for the economic ecologic zooning, and management forest plans, as well as several mechanisms to promote conservation of biological diversity and the protection of water sources, and shows concerns about the cultural protection of indigenous and local peoples. The percentage of protected areas rose from 6 to 13.6 percent from 1990 to 2006, an area equivalent to 57 million ha. Brazil also showed a 154 155 156 157 158 159

154 Enrique Elías, The Tarapoto Process: establishing criteria and indicators for the sustainable management of Amazon forests (fao), available at http://www.fao.org/docrep/007/ y5841e/y5841e12.htm. 155 Siu Lang Carrillo Yap, supra note 151, at 132. 156 mma, supra note 161, at 12. 157 Rodolfo Ilário da Silva, supra note 2, at 112 (citing DEUSDARÁ- FILHO; ZERBINI, 2001, p. 42–43). 158 Roberta Rubim del Giudice, A Sistematização dos Instrumentos Normativos Florestais Federais e os Indicadores de Sustentabilidade da Florestal Amazônica Brasileira do Processo de Tarapoto, 147, Unpublished Masters Thesis, UnB (2007), available at http://repositorio .unb.br/bitstream/10482/3366/1/2007_RobertaRubimdelGiudice.pdf. 159 Id., at 148–149.

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serious commitment to reducing deforestation, with a 52 percent reduction of rates prior to 2004.160 Three regional meetings were held, focusing on planning, revision, and improvement of the methodology and evaluation of the results achieved by countries.161 An evaluation meeting was held in Brasília on August 3–5, 2005, in which countries reported their progress and the difficulties encountered for the implementation of the project, in order to correct deficiencies in the methodologies and embrace the indicators in public policies towards the sustainability of the Amazon rainforest.162 The final meeting of evaluation of results was held on May 4, 2006. The national coordinators reported on the results achieved, and discussed possible strategies to continue the Tarapoto Process. In addition to representatives from the acto and fao, other institutions participated as observers, including the World Bank, the itto, government institutions and ngos. Indeed, at the viii mmfa, member countries thanked the fao for the technical and financial resources that allowed for the Tarapoto Proposal to begin, and the Regional Project to be executed. Member countries decided to send the results of the First Meeting in Lima to the unff, as well as to other international processes relevant, such as the Helsinki Process, the Montreal Process, and the itto, among others.163 The acto noted that it intended to include the indicators in public policies, as an instrument of authentication or reference of sustainability. As the timber industry is essential to the economies of many Amazon countries, and contributes to increasing jobs and taxes, it was ideal to actively participate in the process.164 The Tarapoto Process was a step in providing for a uniform and organized planning of regional development. It provided a broad perspective over the region rather than the disorganized national development of each country separately. It was also a successful example of sharing of experience, information, and scientific knowledge. 160 161 162 163 164

160 mma, supra note 161, at 12–14 (see pp. 148 onwards for a broader analysis of the implementation process in Brazil, and a summary of the results obtained in each indicator). 161 Brasil, Ministério do Meio Ambiente (mma), Secretaria de Biodiversidade e Florestas, Programa Nacional de Florestas, Processo de Tarapoto sobre Critérios e Indicadores de Sustentabilidade da Floresta Amazônica, Projeto de Validação de 15 Indicadores Priorizados de Sustentabilidade da Floresta Amazônica, Relatório Final do Projeto – Brasil 12 (2006), available at http://www.mma.gov.br/estruturas/pnf/_arquivos/indic_tarapoto .pdf. 162 Id., at 21. 163 act, viii mmfa, RES/VIII MRE-OTCA/4 (Sep. 14, 2004). 164 Rodolfo Ilário da Silva, supra note 2, at 112–113.

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The following results were achieved as a consequence of the process: (i) the consolidation of a regional network of specialists in forest management; (ii) the creation and strengthening of spaces for dialogue between different social actors related to the forestry sector in each country and between countries; (iii) the identification of strengths and constraints in the legal, institutional, technical, economic and social frameworks of the forestry sector in the Amazon countries; (iv) the generation of knowledge on the current state of land use and forest management; (v) the identification of lessons learned and guidance for projects; and (vi) the definition of a technical basis to gather and interpret the information generated.165 Participation at unff and Other Global Forums It should be noted that the Tarapoto Process was extremely relevant for the articulation of positions from Amazon countries at global negotiations related to forests and sustainable development.166 As countries underwent a long participatory process of establishing common indicators of sustainability, it was easier to agree on a uniform perspective to be presented at the global level. The role of the acto as a regional voice in the international community was constantly highlighted at the political meetings of the organization.167 Indeed, member countries emphasized the importance of Member States to continue to articulate joint positions regarding environment and sustainable development in international forums, especially those related to forests, water, and biodiversity conservation.168 As a consequence of the strategic plan and the Tarapoto Process, countries effectively participated in the unff, allowing for a joint position from the Amazon countries. More resources were effectively achieved towards the development of sustainable development.169 Member countries coincided on the usefulness of promoting channels of communication and dialogue in the unff to ensure more effective participation by Amazon countries.170 165 166 167 168 169 170

165 acto, Experiencias En La Tematica: “Bosques En Un Ambiente De Cambios” Y “Medios De Implementación Para El Manejo Forestal Sostenible”, presented at the UNFF8 (Apr.May 2009), available at http://www.un.org/esa/forests/pdf/national_reports/unff8/ACTO .pdf. 166 Rodolfo Ilário da Silva, supra note 2, at 112. 167 Specifically at the viii mmfa and the ix mmfa. act, ix mmfa, Declaración de Iquitos, ¶14 (Nov. 25, 2005). 168 ix mmfa, held in Iquitos, Peru, on Nov. 2005, which resulted in the 2005 Iquitos Declaration. act, viii mmfa, Declaración de Manaos, ¶18 (Sep. 2004). 169 Antonio José Ferreira Simões, supra note 1, at 39. 170 act, viii mmfa, Declaración de Manaos, ¶22–¶25 (Sep. 2004).

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The mmfa specifically highlighted the acto’s role at the v unff, and decided to continue participating through the coordination of the ps, specifically in the upcoming vi unff, and the iv Water Forum. Specifically, the mmfa raised attention to the melting of the ice in the Andes, and decided to coordinate a position within the unfccc’s framework.171 The mmfa thus requested the ps to continue facilitating preparatory meetings to reach concentrated positions to negotiate at international forums.172 It instructed the ps/acto to actively attend meetings, and to strengthen collaboration with can with respect to forestry activities. Finally, they decided to expand regional cooperation and exchange of experiences to promote cooperation in management of protected areas, as well reinforced the goal of combating illegal trade of wood.173 In order to boost cooperation with respect to the management of water resources in Amazonia, a working group specialized in water was suggested, as well as the implementation of the gef Amazon Project highlighted.174 During this phase, discussions at the global level on the significant impact and role of the Amazon region, such as the unfccc, the un Forum on Forests, and the cbd, cites, and Doha Rounds (WTC).

Workshops on the Application of Forestry Legislation in the Amazon (alfa) Within the context of achieving a regional consensus to present at the unff, the acto organized the Workshop on the Application of Forestry Legislation in the Amazon (alfa) between August 29 and August 31, 2006. The workshop was organized jointly with fao and the itto, and resulted in the Proposed Report of Guararema.175 The goal was to promote a regional dialogue and propose alternatives to improve the forest laws with an Amazonian perspective, and e­ xchange experiences related to practices and mechanisms that ­contribute to a more efficient implementation of the forest laws, share best practices and obtain recommendations to formalize a common agenda for Amazonia.176 171 172 173 174 175 176

171 172 173 174 175

act, ix mmfa, Declaración de Iquitos, ¶15 (Nov. 25, 2005). act, ix mmfa, res/ix mre-otca/5 (Nov. 25, 2005). act, viii mmfa, Declaración de Manaos, ¶22–¶25 (Sep. 2004). act, viii mmfa, Declaración de Manaos, ¶26 (Sep. 2004). otca, Iniciativa de Aplicación de la Legislación Forestal en la Amazonía (alfa), Resultados del Taller alfa – Versión Preliminar 2 (Guararema-sp, Aug. 29–31, 2006), available at http://www.fao.org/forestry/16739-06f8aa3846ea9707287e3e798daa912a2.pdf. 176 Id., at 2.

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The workshop had a few guiding principles: sovereign right of countries to use their resources according to their environmental and developmental policies (Principle 2 of the Rio Declaration); commitment to sustainable development of the Amazon Region, which should contribute to its socioeconomic development and the improvement of the quality of life of their populations (Quito Report); common but differentiated responsibility of countries according to their historical contribution to the degradation of the global environment (Principle 7 of Declaration of Rio); commitment to the implementation of actions that contribute to the sustainable management of forests (Quito Report); take action towards the sustainable management of natural resources in the region according to positions taken at national and regional levels, as well as the implications of commitments and arrangements for the sustainable development of the Amazonian countries. (Report of Quito); the importance of the consensus reached in the development of the Tarapoto Indicators for the sustainability of the Amazon forest, and the validations process for guiding public policies (Report of Quito).177 The report summarized the legal framework of forest law in the Amazon countries, highlighting the main aspects of the national forest policies, the characteristics of the forest sector, and the threats and c­ hallenges related to the implementation of forest law.178 The working group provided a  ­ series  of  ­ recommendations related to policies179 and the legal 177 178 179

177 Id., at 2. 178 Id., at 3–15. 179 Id., at 16. The results in policies of the forest sector are: (i) national Forest Programs should integrate the Government Priority Programs within the national development goals; (ii) the definition of policies must take into account the various functions of forests; (iii) forest management is a relevant instrument for planning the sector; (iv) recognize the importance of forests for their environmental, social and environmental benefits for society; (v) ensure political commitment at the highest level; (vi) the Forest Policy must be inclusive and participatory; (vii) define strategies and instruments for their effective implementation (credit, technical assistance, research, training, incentives) and not just regulatory frameworks; (viii) define the responsibilities and roles of the various actors of government and society; (ix) short, medium and long term goals must be established; (x) the Forest Policy must be in harmony with other sectoral policies and vice versa; (xi) ensure stability and legal security for long-term investments; (xii) to promote the articulation of the Member Countries in order to reach a regional vision; (xiii) promote strategies that address the structural causes of forest crimes; (xiv) seek to reconcile or create mechanisms to facilitate the application of legislation between neighbor countries; (xv) regional dialogue should be encouraged to strengthen the capacity to deal with forest crime in border areas; (xvi) forestry extension is an important mechanism for feedback on implementation of the Forestry Policy.

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­framework180 of the forest sector, to the institutional structures,181 and technology and information.182 Finally, the report included a proposal for alfa. 180 181

180 Id., at 16–17. The results in the legal framework of the forest sector are: (i) define general rules that reflect the objectives and structure of the Forestry Policy; (ii) in cases where it is necessary to support the revision of the forestry legislation; (iii) promote legality from within the State itself, with mechanisms to ensure stability and legal security; (iv) standards should be developed in a participatory manner; (v) harmonize forest regulations with the rest of the legal system; (vi) specify rules to meet local realities and needs; (vii) the regulations must be objective, viable, appropriate and appropriable by the various actors involved; (viii) consideration should be given to the development of complementary judicial instruments that may ensure the effective application of the laws; (ix) decentralize roles and responsibilities and deconcentrate the application of laws; (x) consider regulatory frameworks for the promotion of the sector; (xi) be accompanied by technical guides to facilitate interpretation by both the user and the by the forestry authority, in order to enhance the transparency of the implementation of legislation; (xii) design mechanisms to accompany the processes related to the judicial sector; (xiii) standards should be developed in a participatory manner. The conduct of public consultations can be an effective instrument for the formulation of proposals of law or of the specific regulatory framework; (xiv) develop tools for prevention and control of forest crimes; (xv) allow cross-checks to avoid conflicts of interest. 181 Id., at 17. The results related to the institutional structures are: (i) forest management must be carried out in a decentralized manner and with differentiated responsibilities at the national, regional and local levels. The autonomy in making decisions is one of the aspects to be considered in the definition of responsibilities; (ii) create institutions or consolidate existing ones with specific and differentiated functions as a condition for avoiding conflicts of interest that contribute to the misapplication of forestry legislation; (iii) the institutional reinforcement is relevant for the fulfillment of the State’s role in the management of forests. The allocation of adequate resources is relevant for an efficient management by the forest authority; (iv) to create or strengthen, as appropriate, the necessary institutions for the proper functioning of the sector. The institutions involved must be able to follow the same pace of action; (v) strengthen independent and effective institutional bodies of oversight and social control to give transparency to public forest management; (vi) establish mechanisms for articulation and coordination between institutions; (vii) ensure that the resources raised by the Forest Funds are invested in the strengthening of the forestry sector; (viii) improve technical, operational and legal coordination. The participation with appropriate and transparent mechanisms was identified as a relevant aspect for forest management. The mechanisms of social participation considered were the national, regional and local dialogue that can be set up by the National Commissions of Forests, National Forestry Councils, Forest Management Committees and by local social organizations and small producers. The desirable characteristics of these instances are: (i) to have representativeness (participation of all the actors

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The implementation of the alfa initiative includes: (i) the adoption of suggestions and guidelines resulted from the regional discussion and interaction process that took place in August 2006; (ii) carrying out studies on the application of forestry legislation in acto countries, as input for the decision-making process or exchange of information, technology and knowledge, as well as for the continuation of the regional dialogue and the establishment of a common agenda on the subject; and (iii) implementation of initiatives that nationally integrate strategies of implementation of forest legislation, such as a study on Community Forest Management in Brazil, and the training of key actors for the implementation of forestry legislation in Ecuador.183 The alfa initiative was a process of discussion and regional exchange about opportunities and challenges related to forestry legislation and the governance of the sector within the region. It intended to strengthen cooperation, exchange of information and coordination of policies and actions for the ­protection of 182 183

involved); (ii) have credibility; (iii) have clear objectives and missions; (iv) have an agenda of common interests in harmony with forestry policies; (v) have political support; (vi)  have transparency; (vii) be formally created; (viii) they must seek innovation and new paradigms for forest management; (ix) there should be spaces for discussion of issues related to the forestry sector. 182 Id., at 18. Recommendations with respect to technology and information include: (i) information on forest resources is essential as an input to the formulation of public policies, such as the monitoring of forest cover, quality of forests, uses of the forest including traditional knowledge, land management and forest fires. The application of indicators on the sector (recorded and ordered in the format of forest statistics) are relevant for the development of a policy design, as well as for forest management. The information must be made official, regardless of being generated by the government, research institutions, universities, private parties, etc; (ii) information related to authorizations and other relevant transactions shall be available; (iii) the information needed for forest management must be based on a system of information on access to resources, a system for tracking the crossing of information collected by other sectors (trade, taxes, etc.). The generation of data on land ownership, financing, forest concessions and others are relevant; (iv) the information must be accessible, in language appropriate for the different types of public involved and there shall be levels of access to information; (v) national institutions should be involved in the production of the maximum of information; (vi) it is desirable to use control systems and information services Computerized data. – Develop a system for access to official information on different levels (Internet, Public hearings, etc.); (vii) training is a relevant element of information and should be Training in enforcement of forest legislation and operations at different levels; (viii) as far as possible, information technology should be Countries. 183 acto, supra note 165, at 2.

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biodiversity, combating illegal logging and the illegal trade in timber. In addition, it included collaborative masures to control and mitigate practices. During the fourth period, studies on the application of forestry legislation were conducted in Bolivia, Guyana, Peru and Suriname. In addition, projects that integrate the national strategies to strengthen the implementation of forestry legislation were supported by the acto as part of the alfa initiative. These included sustainable forest management, dialogue and training of a­ uthorities to improve the implementation of legislation in Ecuador, sustainable community forest management in Bolivia, and the development of ­sustainable management policies for communities in Brazil.184 Monitoring of Deforestation In order to strengthen countries with the necessary information to enforce forestry legislation and curb deforestation, the acto supported efforts to establish a real-time forest cover monitoring. The monitoring system would be a key indicator for sustainable forest management, therefore also bringing the Tarapoto Process to the next level. Through a regional network, the acto would stimulate capacity-building in each country to monitor deforestation and gather other relevant information, such as the advancement of land occupation and trends in land use.185 As a facilitator of the creation of the network, the acto searched for a technology that would fulfill the following requirements: (i) be readily available and have low costs, (ii) promote a periodic analysis of information on deforestation, (iii) and be already in use by an Amazon country.186 Brazil’s digital deter/prodes system, based on free software, and developed by the ­Brazilian Institute of Space Research (inpe) was chosen as the ideal project for technology transfer. The system had been successfully used by the Brazilian government in real-time monitoring of forest cover in the Brazilian Amazon.187 As a following step, the feasibility of implementing the network with the member countries was discussed, with the training of specialists of the region in the use and manipulation of the system. Several workshops were conducted in the Amazon countries between 2007 and 2008. The process resulted in the development of a database that provided a platform for receiving information from the eight countries.188 184 185 186 187 188

184 185 186 187 188

Sandra Lefcovich, supra note 438 at 22. acto, supra note 165, at 2. Id., at 2. See Chapter 12 for more information about the Brazilian system. Sandra Lefcovich, supra note 438 at 21. .

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The “Monitoring Deforestation, Exploitation and Land Use Change in the Amazon” project was proposed by the acto, and approved by the itto in 2008, and was awaiting sufficient funding.189 The implementation of the initiative continued during Phase 5. Guidance Document for Protected Areas Within the framework of the Memorandum of Understanding signed in 2005 between sp/otca and the wwf, the ps requested a study on protected areas. The study would allow the strengthening of national protected area systems, and enhance its long-term effectiveness through a regional approach, thus strengthening synergies between systems and addressing gaps in implementation.190 Following this mandate, a process was initiated, involving information gathering and consultations with the staff of protected areas agencies. As a result, a diagnosis was developed, with a proposal for the Design of the Regional Program. The Guidance Document for a Pan-Amazonian Program of Protected Areas proposes to support each countries’ demands, strengthen their positions and strategies, open new negotiating avenues, and promote regional actions in which countries have difficulty mobilizing resources.191 Some priorities were highlighted: (i) building alliances and developing common strategies and positions among the countries; (ii) promoting transversal actions to systematize experiences and improve the methodology for the conservation of biodiversity, exchange of information and training (to improve and increase participation); and (iii) implement pilot actions that prioritize regional approached in terms of flows and cross-border problems. Specifically, the document proposes the Program to facilitate: (i) strengthening capacity for planning and management of the national institutions ­responsible for the national systems of protected areas (snaps); (ii) the implementation of a regional strategy to consolidate the conservation of biodiversity at different levels: local, national and regional; (iii) the financial ­sustainability of snaps; (iv) processes of participation and decentralization; (v) integrating snaps into international processes and negotiations (such as cbd, Kyoto 189 190 191

189 acto, supra note 165, at 3. 190 otca, Proyecto ATN/OC-9251-RG, Fortalecimiento de la Gestión Regional Conjunta para el Aprovechamiento Sostenible de la Biodiversidad Amazónica, Programa Regional para Gestión Sostenible de las Áreas Protegidas Amazonicas, Propuesta Preliminar 8 (May 2007), available at http://www.otca.info/biodiversidade/2009/publico/_arquivos/File/ GSANPAMAZONICAS/PROPUESTA%20PRESENTADA%20PROGRAMA%20REGIONAL%20APs%20GSFreitas.pdf. 191 Richard Pasquis, supra note 181.

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­Protocol, and wto); and (vi) the development of a plan for the creation of a Regional Amazonian Protected Areas (sapa) system. Technical Meeting on Protected Areas Due to the event of cbd’s COP8, held in Curitiba, Brazil, from March 21 to 23, 2006, the ps/acto convened a technical meeting of Amazon countries on protected areas.192 The meeting was attended by directors of the snaps, regional experts, representatives of non-governmental organizations and international organizations. The participants agreed on the relevance of protected areas as a fundamental tool for the maintenance of ecosystems, and that a Regional Program was essential as a complementary policy to national actions. The participants of the technical meeting recommended to the ps to prepare a core document for the Regional Program, with the main goal of “strengthening snaps through a regional approach to conservation of biodiversity in the Amazon region and in compliance with the commitments and mandates received from member countries”. The core document would be composed of suggestions for (i) strengthening the financial sustainability of snaps; (ii) strengthening of joint initiatives in border areas, developing conservation corridors, and including conservation in the agenda of other sectors; (iii) facilitating the exchange of information, people and capacity-building experiences; (iv) developing studies on the impacts of projects on the functionality of Amazonian biomes; and (v) developing participatory planning and monitoring processes, the development of metadata that facilitates the access and use of the information systems available.193 Amazon Regional Program Following the mandate of strengthening protected areas in Amazonia, included in the 2004–2012 Strategic Plan, and building on the documents, initiatives and projects developed by the act/acto in the previous years,194 the acto proposed the Regional Program for the Sustainable Management of 192 193 194

192 otca, supra note 190, at 9. 193 Id., at 9–10. 194 Id., at 3. It was part of the “Strengthening of Joint Regional Management for Sustainable Use of Amazonian Biodiversity”, a project developed by the acto with the support of the Inter-American Development Bank. The project built on the Regional Program for the Planning and Management of Protected Areas of the Amazon Region (Proyecto ue/tca/fao “Planificación y Manejo de Áreas Protegidas de la Amazonía” (1993–1997)), as well as on a regional meeting between protected areas agencies that occurred in 2006 (Held in Curitiba, 2006). Likewise, it was based on the proposals recognized in the Guidance Document for a Pan-Amazonian Program of Protected Areas.

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­ mazonian Protected Areas.195 The international scenario on protected areas, A which will be highlighted in the following section, also influenced the development of the plan. The goal was to reinforce the snaps, and build capacity for the authorities in charge of protected areas at the national level. With a joint policy, it would be easier to develop capacities and facilitate conservation processes, especially in protected areas located on bordering areas, through an ecosystem approach. A Regional Program would contribute to the implementation of Work Program on Protected Areas of the cbd, as well as the products of the v World Parks Congress, including the expansion and strengthening of the protected area systems, establishing comprehensive networks in all ecological regions by 2012.196 The Amazon Regional Program received funding through a collaboration with the Directorate General for International Cooperation of the Netherlands (dgis), the German Federal Ministry for Economic Cooperation and Development (bmz), and the German Organization for Technical Cooperation (gtz). The program referred to the sustainable use and conservation of forests and biodiversity in Amazonia, and developed a forum for cooperation and ­communication among the Member States in the areas of forests, biotrade, tourism, indigenous affairs, and institutional strengthening. Indeed, it aimed to contribute to the construction of a vision and practice of management of protected areas at the regional level, with an emphasis on protected areas in border areas and conservation corridors covering more than one country.197 The Program sought to develop mechanisms for coordination, as well as ­technical and financial instruments to complement the management of the National Systems of Protected Areas, and promote joint action, within the framework of a regional focus for the conservation of biodiversity. The idea, upon implementation, was to complement the national efforts in the ­management of Amazonian protected areas as instruments for biodiversity conservation, sustainable development, and social inclusion, and facilitate the agreement on common positions in international scenarios.198 The proposed program for Sustainable Management of the Amazon Protected Areas was sent to the countries Members for consideration in January 2008.199 At the end of 2008, the program was still under consultation by the member countries. 195 196 197 198 199

195 196 197 198 199

otca, supra note 190. Id., at 9. acto, supra note 165, at 3. Id., at 3. For the events that led to the proposal, see Sandra Lefcovich, supra note 438 at 24–25.

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Biodiversity Regional Program In order to promote regional biodiversity, the sp/acto prepared a proposal for the Regional Action Plan For Amazonian Biodiversity (parba) 2008–2013. The proposal addressed the knowledge, conservation, and use of sustainable development of biodiversity in the region, as well as the distribution of fair and equitable sharing of benefits derived from its use.200 The parba sought to become a recognized framework on protected areas and ecological corridors on bordering areas. The plan would increase knowledge on the biodiversity, and allow the development of supporting programs for the preservation of traditional knowledge, access to genetic resources and intellectual property rights, as well as mechanisms for monitoring and traffic control. Six national consultation workshops and a regional workshop were held to develop parba.201 Amazon Vision At the end of the 1990s, a Regional Program for Planning and Management of Protected Areas of the Amazon Region was created. In 2008, based on the achievements of the sub-network Amazon Protected Areas from the acto, and as part of the regional efforts for the implementation of the cbd Work Program of Protected Areas, redparques developed a “Vision for the conservation of the biological and cultural diversity of the Amazonian biome based on ecosystems”. This approach was prepared in collaboration with the Secretariat of the cbd, the wwf and iucn, with the participation of the acto and can. It aimed to contribute to the administration and effective management of protected areas systems and maintenance of goods and services, integrity, functionality and resilience of the entire Amazon Biome against the effects of natural and anthropogenic pressures in the context of climate change, to the benefit of economies, communities and biodiversity at all levels, from the local to the global.202 200 201 202

200 Id. See also Néstor Ortiz, Organización del Tratado de Cooperación Amazónica (otca), Programa otca Biodiversidad, Lineamientos Estratégicos del Plan de Acción Regional para la Biodiversidad Amazónica, (2008–2013). Available at https://www.cbd.int/doc/ meetings/nbsap/nbsapcbw-sam-01/other/nbsapcbw-sam-01-otca-es.pdf. 201 Id. National consultations were held in Bolivia, Colombia, Ecuador, Guyana, Peru and Suriname between March and November Of 2007, which had the Participation of the national environmental and forest management authorities, academic entities and organizations, scientific institutions, ngos, public and private entities. In addition, a regional science and technology workshop for conservation and sustainable use of biodiversity was organized in Loja (Ecuador) in August 2007. 202 Redparques, VISIÓN AMAZÓNICA, (2015). Available at http://redparques.com/vision -amazonica/.

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The vision was developed around 4 key components of cbd’s Work Program: (i) conservation opportunities; (ii) integration of the vision of indigenous and local communities; (iii) effective management of protected areas; and (iv) sustainable financing strategies for protected areas. redparques’ initiatives in Amazonia developed into practical actions during Phase 5, and will be analyzed in the following chapter. gef Amazon Project Another initiative that began during the fourth phase is related to the management of water resources: the Integrated and Sustainable Management of ­Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project. The project is an example of some of the hurdles faced by the acto in implementing new initiatives. ­Indeed, it took the organization 9 years to get the project off the ground. The idea was suggested in 2002, at the xi acc and the vii mmfa.203 The Santa Cruz de la Sierra Declaration (mmfa) highlighted the relevance of the management of water resources, from the conservation of the Amazon River Basin and the need to integrate and harmonize the initiatives and efforts of each country.204 On July 2003, during the I Working Group Meeting of the Institutions Responsible for the Management of Water Resources in the Member Countries of the acto, in Brasília, a preliminary document with the basic concepts of the project was developed.205 On November 2003, the conceptual document for the integral and sustainable management of transboundary water resources in the Amazonas river basin was presented by the gef Secretariat and approved by member countries.206 In 2005, an outline was sent to the Global Environment Facility (gef) with a request for funding. The gef, unep, and Secretary-General of the oas ­approved the document which authorized the gef Project on June 25, 2005. The project officially started at the end of 2005, at the I Meeting of the Directing Committee of the Project.207 203 204 205 206 207

203 xi Reunión Ordinaria del Consejo de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 20–21 Nov., 2002, Acta Final. vii Reunión de Ministros de Relaciones Exteriores de los Países Signatarios del Tratado de Cooperación Amazonica, held in Santa Cruz de la Sierra, Bolivia, on 22 Nov., 2002, Acta Final (hereinafter act, vii mmfa). 204 act, vii mmfa, Declaración Santa Cruz de la Sierra (Nov. 22, 2002), available at http:// otca.info/portal/admin/_upload/ministros/VIIREUNION_MINISTROS_Declaracion_Santa_Cruz_de_la_Sierra.pdf. 205 See the development of the gef project in act, ix mmfa, res/ix mre-otca/10 (Nov. 25, 2005). 206 Id. 207 Id.

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The funding was partially approved in 2007. The gef committed to a us$7 million donation. With a total budget of us$52.2 million, it was necessary to find supplementary sources of funding, which was only successfully gathered during the fifth phase. In 2009, the full project was approved, with funding from member countries and additional donors. A contract between the ps/acto and unep, as the implementing agency, was signed in 2010.208 In 2010, the gef Amazon Basin Project was launched.209 Amazonia and Climate Change The sp/acto organized two international workshops about climate change during the fourth period, and prepared a document that presented the regional challenges faced, as well as some perspectives of the acto on the subject.210 The document approached climate change through a regional dialogue, and a regional agreement to facilitate interaction and ­coordination. The exchange of views on the subject had the purpose of contributing to the national strategies, as well as orienting a regional position to facilitate negotiation at the unfccc. Ultimately, the goal was to promote a similar participation as the acto had done at the unff.211 The document analyzed the impacts of climate change in Amazonia, and the regional contribution to climate change, indicating possible future scenarios. It highlighted the potential, opportunities and risks of the proposals of ­carbon credits and reduction of emissions, as well as description of alternatives that could generate benefits for conservation and sustainable ­development in Amazonia. Finally, it described the regional and global tendencies with respect to adaptation, as well as an analysis of alternatives and possible proposals for the Amazon region.212 The document highlighted that the possible alternatives of regional initiatives depended on the progress of the climate negotiation, especially in terms of accepting incentives for avoided emissions from deforestation.213 208 209 210 211 212 213

208 acto, Proyecto gef Amazonas, Estructure del Proyecto, available at http://otca.info/gef/ sobreoprojeto (last visited Jan. 6, 2017). 209 acto, Proyecto gef Amazonas, Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project. Available at http://www.mtnforum.org/sites/default/files/news/ files/gef.amazonas.final_ingles_3_0.pdf (last visited Apr. 2, 2014). 210 acto, La Amazonía y el Cambio Climático: magnitud del problema y perspectivas de acción para los países miembros de la otca (Nov. 2007), available at http://www.gruporeddperu.net/ biblioteca/index.php?option=com_docman&task=doc_download&gid=369&Itemid=94. 211 acto, supra note 165, at 3. 212 acto, supra note 210, at 3. 213 See the redd and redd+ discussion in the following section.

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­Nonetheless, it provided some suggestions for a regional strategy for the acto to develop in the 2008–2012 period, namely: (i) establishing a regional mechanism of systematization and analysis of data on climate change in the Amazon; (ii) providing technical-scientific training, assistance and technology transfer; (iii) carrying out national inventories; and (iv) cross-border institutional arrangements; (v) expansion of ongoing programs and activities; and (vi) acting in the macroeconomic context.214 As a mechanism of regional cooperation for sustainable development, the acto could establish a regional mechanism for climate change data in the Amazonia. The ps/acto would thus include a committee or group of experts from the member countries that would systematize and analyze the information on climate change produced in the region. The committee would function as an Amazonian ipcc, and issue periodic reports, develop specific studies, and generally provide input for decisions adopted by the political bodies of the acto.215 The acto could promote technical-scientific training, assistance and technology transfer, thus addressing the gaps in the Amazon countries. The assistance would primarily identify vectors of deforestation, measure and monitor emissions, and disseminate information to combat deforestation.216 In addition, the acto could gather resources from the member countries to conduct inventories based on recent methodologies.217 Since several causes of deforestation are observed regardless of national boundaries, the acto could promote institutional arrangements to jointly fight deforestation.218 Several national and regional initiatives could be expanded geographically or perfected to become more viable at the regional level. These include initiatives such as Brazil’s Program of Protected Areas of the Amazon (arpa),219 and the sustainable forest management initiatives by the Forest Stewardship Council (fsc).220 Finally, the acto could formulate and implement regional macroeconomic policies in the short, medium and long-term for the sustainable use of forest resources and agricultural commodities.221 214 215 216 217 218 219 220 221

214 215 216 217 218 219 220 221

acto, supra note 210, at 7–8. Id., at 7. Id., at 7. Such as the 2003 ipcc Good Practice Guidance for Land Use, Land Use Change and Forestry and 2006 ipcc Guidelines for National Greenhouse Gas Inventories. acto, supra note 210, at 8. See Chapter 12 for an analysis of Brazil’s arpa program. acto, supra note 210, at 8. Id., at 8.

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The vast majority of climate change recommendations are directly related to forest policies. Few, however, actually moved forward. Nonetheless, Chapter 12 expands on the recommendations, using some national examples as possible case studies for expanding at the regional level, thus making the acto more relevant and effective. 8.6

Developments in International Forest Law

The 2002–2009 period concomitantly saw several large-scale meetings at the international level, in which the international community recognized the critical importance of sustainable forest management, taking significant steps towards its achievement. The period is characterized by an increase in international cooperation and the integration of long-term strategic planning to achieve overarching and mutually beneficial global goals. In addition, specific targets were outlined and concrete action items committed to. Increasingly, the global conversation was shifting permanently towards a holistic framework of analysis, restructuring itself to address the role of forest conservation as part of additional global efforts. 2003: v World Parks Congress (Durban, South Africa) The World Parks Congress convenes once every ten years to “appraise the current state of and set an agenda for protected areas in the upcoming decade.”222 The Vth wpc, held in Durban from September 8–17, was organized with the theme of “Benefits Beyond Boundaries”223 and was at the time “the largest and most diverse gathering of protected area experts in history.”224 In their ­opening remarks, Nelson Mandela and Queen Noor of Jordan highlighted that in the past century, 11.5% of the earth’s land surface has been included in protected areas.225 The outcomes from this Congress which impacted directly 222 223 224 225

222 Anne Marie DeRose, Overview of Community Participation at the Vth iucn World Parks Congress, iucn World Commission on Protected Areas, 14 Parks 2 at 18, (2004), available at https://www.iucn.org/sites/dev/files/import/downloads/14_2lowres.pdf. 223 Id. See also, id. at 30, Tim McClanahan, “Beyond Boundaries was the theme of the Congress and, therefore, the focus was on the neglected areas of parks, underrepresented biomes, and people living next to parks, poverty, corridors, climate change, and other large-scale problems.” 224 David Sheppard, Editorial, iucn World Commission on Protected Areas, 14 Parks 2 at 1, (2004), available at https://www.iucn.org/sites/dev/files/import/downloads/14_2lowres .pdf. at 1. 225 Id.

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on the world’s forests included the Durban Accord and Action Plan, a set of 32 Recommendations from the Congress, and a Message to the CBD.226 Among commitments made, 200,000 km2 were established as new protected areas and the United States pledged $50 million “to strengthen management of existing areas.”227 The governor of the Brazilian State of Amapá also made a major commitment to expand Amapá’s protected areas.228 There was a large technical aspect to the Congress, as evidenced by the over 150 workshops and 200 side meetings;229 the importance of utilizing science to achieve conservation goals was further reinforced by remarks by John ­Terbough, who advocates even for scientists’ participation in the political ­arena.230 Several “significant messages” from the Congress included discussion of five major points: (i) Considerable progress has been made in the establishment of protected areas although significant gaps remain; (ii) Protected areas face many challenges, and management effectiveness must be strengthened; (iii) Protected areas play a vital role in biodiversity conservation and sustainable development; (iv) A new deal is needed for protected areas, local communities, and indigenous peoples; (v) There is a need to apply new and innovative approaches for protected areas, linked to broader agendas; (vi) Protected areas require a significant boost in financial investment; and (vii) Protected areas management must involve young people.231 Overall, countries were more responsive to information requests: 226 227 228 229 230 231

What is happening, however, is that the compilation process is including more small and previously unreported but long-existent protected areas

226 Id. The Durban Accord and Action Plan served to “[guide] the conservation community to consider the needs of communities and find solutions to gaps in protected ecosystems and ineffective funding methods.” The Action Plan highlighted progress since the Fourth wpc, discussed challenges ahead, and set out timetables and key targets. Id. at 23. Some key wpc Recommendations were cited by the iucn as to “enhance communication and education efforts … improve management effectiveness and governance of Pas; recognize indigenous people, mobile peoples and local community rights as related to biodiversity conservation; and utilize partnerships to generate support of protected areas.” Id at 23, citing Agence France-Presse, 17 September 2003. The Message to the Convention on Biological Diversity focused on the importance of sound science, framework-building, and equity concerns. 227 Id. at 1–2. 228 Id. at 2. 229 Id. at 1. 230 Id. at 2. Terbough remarked “if nature is to be conserved, scientists must be vitally engaged, not only in the field and laboratory, but in the political arena, for we must be heard to be heeded.” 231 Id. at 1–5.

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as more countries respond with better information … [N]early twice as many countries responded to the un request for protected area information in 2002 as did in 1960. Given that only 103 of the 191 un members responded in 2002, and that different types of management systems are not included such as community, indigenous, military, or corporation management, this process could continue for some time and create the perception that biodiversity continues to be appreciated and protected.232 2004: cbd cop-7 (Kuala Lumpur) The 7th Conference of the Parties to the cbd occurred in Kuala Lumpur in February 2004. Among other issues, it highlighted the progress made on the implementation of the expanded programme of work on forest biological diversity as a significant contribution to achieving the 2010 target and sustainable forest management at national, regional, and global levels.233 Like earlier cops, it encouraged state and regional governments, as well as indigenous and local communities, to cooperate.234 Indeed, the Decision on Forest Biological Diversity recognized the benefits from regional cooperation and initiatives for forest biological diversity and encouraged further joint efforts at implementing activities contained in the work programme.235 Other similarities include the promotion of technology transfer and sharing236 as well as climate change measures.237 On the technical angle, the Decision requests relevant indicators and outcome-oriented targets to be integrated into the work programme prior to the cop-8.238 It also urges the continued and strong investigation of how forest biological diversity is being affected by insufficient forest law enforcement, and emphasizes the continued importance of reporting among the cpf members.239

232 233 234 235 236 237 238 239

232 Id. at 30. 233 cop-7, Decision vii/1, Forest biological diversity, ¶1, unep/cbd/cop/dec/vii/1 ­(Kuala  Lampur, Apr. 13, 2004), available at https://www.cbd.int/doc/decisions/cop-07/ cop-07-dec-01-en.pdf. 234 Id. at ¶5; ¶11. 235 Id. at ¶5. 236 cop-7 Transfer of Technology Decision, Decision vii/29. Transfer of technology and technology cooperation (Articles 16 to 19), available at https://www.cbd.int/doc/decisions/ cop-07/cop-07-dec-29-en.pdf. 237 cop-7 Biodiversity and Climate Change, Decision vii/15. Biodiversity and Climate Change, available at https://www.cbd.int/doc/decisions/cop-07/cop-07-dec-15-en.pdf. 238 Id. at ¶6; ¶7. 239 Id. at ¶ 2; ¶8.

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cop-7 also specifically addressed protected areas, confirming the efforts that promote in situ conservation as essential to achieving the objectives of the cbd.240 It invited Parties and Governments to develop national and/or regional targets, and, as appropriate, incorporate them into relevant plans, programmes and initiatives, including national biodiversity strategies and action plans.241 Parties to the agreement, including Amazon countries, had the obligation to implement national and regional programs of protected areas that ensure the representation of ecologically relevant ecosystems, and effective management of the system of protected areas, by 2010.242 It specifically addressed the challenges of developing countries in terms of implementation of plans and programs, and urged other parties and development agencies to provide financial and technical support.243 2005: The World Summit The 2005 World Summit, as a High-Level Plenary Meeting of the 60th session of the un General Assembly, was held at the un headquarters in September 2005. It brought together over 170 Heads of State and Government to discuss issues in the areas of development, security, and human rights.244 The summit resulted in an outcome document that reflected a unified stance by the international community on a broad array of crucial issues, including concrete steps towards combating poverty and promoting development to unqualified condemnation of all forms of terrorism along with the acceptance of collective responsibility to protect civilians against genocide and other crimes against humanity.245 The document expressed a joint commitment to furthering international cooperation and action to achieve the Millennium Declaration Development Goals (mdgs), including with respect to forests.246 It addresses science and 240 241 242 243 244 245 246

240 cop-7 Biodiversity and Climate Change, Decision vii/28. Protected Areas (Articles 8 (A) to (E)), available at https://www.cbd.int/doc/decisions/cop-07/cop-07-dec-28-en.pdf ¶1. 241 Id. at ¶ 7. 242 otca, supra note 190, at 10. 243 Id. at ¶ 8–11. 244 The 2005 World Summit High-Level Plenary Meeting of the 60th session of the un General Assembly (14–16 September 2005, un Headquarters, New York), United Nations. Available at http://www.un.org/en/events/pastevents/worldsummit_2005.shtml. 245 Id. 246 2005 World Summit Outcome, g.a. Res. 60/1, ¶ 55(j), u.n. Doc. A/60/L.1 (Oct. 24, 2005). Specifically, paragraph 55(j) states “We are committed to taking further action through practical international cooperation, inter alia … (j) To strengthen the conservation, ­sustainable management and development of all types of forests for the benefit of current and future generations, including through enhanced international cooperation, so that trees and forests may contribute fully to the achievement of the internationally

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technology as a key piece to achieving the mdgs, and speaks of the need for partnerships between the public and private sectors.247 These partnerships are seen as vital to address the special needs of developing countries in the areas of conservation, sustainable use of natural resources and environmental management, energy, forestry, and the impact of climate change.248 The Summit echoes cop-7 and wssd in terms of the themes it emphasizes and the mechanisms through which they may be achieved. unff Following the developments in global forestry discussions highlighted in the previous chapter, the unff convened during the fourth period. Of note, UNFF6, held on February 2006, adopted a package of measures that greatly strengthened the international arrangement on forests, and provided clear guidance on the future work of the Forum.249 As a result of the meeting, ­e cosoc decided that unff should conclude and adopt a non-legally binding instrument on all types of forests. In particular, the resolution included the adoption of the four Global Objectives on Forests. The Global Objectives on Forests are to: (i) reverse the loss of forest cover worldwide through sustainable forest management (sfm), including protection, restoration, afforestation and reforestation, and increase efforts to prevent forest degradation; (ii) enhance forest-based economic, social and environmental benefits, including by improving the livelihoods of ­forest-dependent people; (iii) increase significantly the area of sustainably managed forests, including protected forests, and increase the proportion of forest products derived from sustainably managed forests; and (iv) reverse the decline in official development assistance for sustainable forest management and mobilize significantly-increased new and additional financial resources from all sources for the implementation of sfm. UNFF8, which happened at the end of April 2009, discussed forests in a changing environment, within the context of climate change, as well as a means of implementation.250 247 248 249 250

247 248 249 250

agreed development goals, including those contained in the Millennium Declaration, taking full account of the linkages between the forest sector and other sectors. We look forward to the discussions at the sixth session of the United Nations Forum on Forests.” Id. at ¶ 60(a). Id. ecosoc, Res. 2006/49. u.n. ecosoc, 6th session of the unff, 43rd plenary meeting (Jul. 28, 2006). Report of the United Nations Forum on Forests Eighth Session E/CN.18/2009/20. E/2009/42, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N09/339/48/ PDF/N0933948.pdf?OpenElement.

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redd and redd+: 2005–2007 Results-based payments for results-based action.251

One of the most significant issues in international forestry policies during the period was discussed at the climate negotiations. In 2001, four years after the Kyoto Protocol had been adopted, the unfccc convened to debate whether to include provisions for avoiding tropical deforestation as a Clean Development Mechanisms (cdm).252 As a mechanism to let developed countries meet their climate targets more cheaply by purchasing offset credits from projects in developing countries, the issue was especially relevant for tropical countries. A decision in favor would create a viable business model for companies seeking to generate carbon credits by conserving rainforest, thus creating an ­additional incentive to reduce deforestation. However, the unfccc sanctioned the generation of credits from planting trees in tropical countries, but not from preventing adjacent forests from being destroyed. The decision related to ­potential “leakage”253 and “additionalities”.254 In 2005, the issue was revisited due to a joint climate change/forest degradation initiative at the unfccc’s COP11. Costa Rica and Papua New Guinea submitted a document conceived of by the Coalition for Rainforest Nations, with a proposal for compensating national-scale reductions in emissions from deforestation (red).255 This document, “Reducing Deforestation in Developing Countries: Approaches to Stimulate Action”, called for the inclusion of an 251 252 253 254

251 un-redd Program, What is redd+? Available at http://www.unredd.net/about/what-is -redd-plus.html. 252 Frances Seymour and Jonah Busch, Why Forests? Why Now?, The Science, Economics and Politics of Tropical Forests and Climate Change 90–91 (2016). 253 Leakage is essentially displacement. It can be defined as “changes in anthropogenic emissions reductions or removals of ghgs outside the accounting system that result from activities that cause changes within the boundary of the accounting system.” The ­r eddesk: Leakages/displacements, available at http://theredddesk.org/markets-standards/designfeatures/leakage-displacements. redd+ is controversial for many reasons, including mainly leakage, additionality, permanence, and indigenous rights issues. Also debated is the basic concept at the heart of carbon trading itself, and the many inherent conflicts which exist in carbon credits funded by private sources. See generally redd-Monitor, available at http://www.redd-monitor.org/redd-an-introduction/; Brian C. Murray, Seeing redd: Addressing Additionality, Leakage, and Permanence with a National Approach, ­Presented at unfccc, December 8, 2007. 254 Kyoto Protocol, Decision 3/cmp 1/2005, stating that “A cdm project activity is additional if anthropogenic emissions of greenhouse gases by sources are reduced below those that would have occurred in the absence of the registered cdm project activity.”

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agenda item at COP12 which would “open dialogue to develop scientific, technical, policy, and capacity responses” to address the climate change as it relates to deforestation.256 Conceptually, this tied together climate change mitigation and forest management measures pertaining to deforestation occurring primarily in developing countries. To buttress the importance of this action, the document discussed the ipcc’s data indicating that “land use changes dominated by tropical deforestation” accounted for ~ 10–25% of human-induced emissions.257 Negotiations on red, later expanded to redd (“reducing emissions from deforestation and forest degradation”), and then redd+ (due to the inclusion of other activities potentially eligible for results-based payments, such as conservation of forest carbon stocks, sustainable management of forests, and enhancement of forest carbon stocks), were finalized in Warsaw. redd+ was adopted at COP13 in December 2007.258 A national forest monitoring system complete with mrvs (monitoring, reporting, and verification mechanisms) was subsequently adopted at cop 15 in 2009.259 To address concerns about additionalities and leakage, safeguards were added at COP16 in 2010 and are referred to as the Cancun Safeguards.260 Further guidance on the adoption of reference levels and safeguards was ­adopted at subsequent Conventions, with formal elements being adopted at COP19 in Warsaw.261 255 256 257 258 259 260 261

255 Submission from the Parties (Costa Rica and Papua New Guinea), Reducing emissions from deforestation in developing countries: approaches to stimulate action, FCCC/ CP/2005/Misc.1. 256 Id. at 2; see p. 11 for request for inclusion on COP12 agenda. 257 Id. at 3, citing ipcc, Land-Use, Land-Use Change and Forestry (2000). 258 Decision 2/CP.13, Reducing emissions from deforestation in developing countries: ­approaches to stimulate action, FCC/CP/2007/6/Add.1. Of note is the fact that the “+” was added in this Session via the Bali Action Plan. 259 See fao, undp, and unep, National Forest Monitoring Systems: Monitoring and Measurement, Reporting and Verification (M & mrv) in the context of redd+ Activities (2013). Available at http://www.fao.org/3/a-bc395e.pdf. 260 unfccc, Report of the Conference of the Parties on its sixteenth session, Addendum Part 2, Action taken by the Conference of the Parties at its sixteenth session, FCCC/CP/2010/ Add.1, Decision 1/CP.16. 261 The Warsaw Convention defined the elements that participating countries must meet in order to qualify for redd+ subsidies. The Elements of the unfccc Warsaw Framework for redd+ include: (1) Forest Reference Emission Levels/Forest Reference Levels (frel/frel); (2) National Forest Monitoring Systems (nfms); (3) National Strategies/

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redd+ operates through Article 2 of the unfccc, and the Kyoto ­Protocol.262 Operationally, redd+ functions as a set of incentives to reward developing countries that engage in activities “to reduce forest emissions and enhance carbon stocks in forests while contributing to national sustainable development.”263 Countries who meet the unfccc requirements qualify for redd+ results-based payments. redd+ Parties may include agricultural tree plantations in their eligible work programmes.264 redd+ is explicitly linked to Goal 13 (Climate Action) of the Sustainable Development Goals.265 The un assists countries putting the redd+ initiative into practice through the un-redd+ Programme. As a multilateral body, it supports the implementation of unfccc-approved redd+ activities in 64 developing countries.266 These partnerships involve direct assistance, through the design and implementation of redd+ Programmes, as well as capacity-building mechanisms and knowledge-sharing between Southern nations.267 2007: Non-legally Binding Instrument on All Types of Forests At the 62nd Session of the General Assembly of the United Nation, the ­Non-Legally Binding Instrument on All types of Forests was adopted.268 It is considered a milestone, as it was the first time member states agreed on an international instrument for sustainable forest management. It was indeed the 262 263 264 265 266 267 268

Action Plans (ns/ap); and (4) Safeguards/Safeguard Information Systems (sis). See un-redd Programme Fact Sheet, “About redd+” at 1, available at http://www.unredd .net/documents/redd-papers-and-publications-90/un-redd-publications-1191/fact -sheets/15279-fact-sheet-about-redd.html. 262 Id. 263 un-redd Programme, How We Work, available at http://www.un-redd.org/how-we -work. See also un-redd Program, What is redd+? Available at http://www.unredd.net/ about/what-is-redd-plus.html. 264 Id. 265 un-redd Programme Fact Sheet, “About redd+” at 2, available at http://www.unredd .net/documents/redd-papers-and-publications-90/un-redd-publications-1191/fact -sheets/15279-fact-sheet-about-redd.html. 266 The un-redd Programme is a collaboration initiative between the fao, undp, and unep. See un-redd Programme Fact Sheet, “About redd+” at 3, available at http://www .unredd.net/documents/redd-papers-and-publications-90/un-redd-publications-1191/ fact-sheets/15279-fact-sheet-about-redd.html. 267 un-redd Programme, How We Work, available at http://www.un-redd.org/how-we-work. 268 g.a. Res. 62/98, ¶ u.n. Doc. A/RES/62/98 (Jan. 31, 2008). General Assembly of the United Nation during the 62nd Session, on 17 December 2007.

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first comprehensive international policy instrument dealing with all types of forests. The instrument intends to impact international cooperation and national action to reduce deforestation, prevent forest degradation, promote sustainable livelihoods and reduce poverty for all forest-dependent peoples. Its ­purpose is to (i) strengthen political commitment and action at all levels to effectively implement sustainable management of all types of forests, and to achieve the shared global objectives on forests; (ii) enhance the contribution of forests to the achievement of the internationally agreed development goals, including the mdgs, in particular with respect to poverty eradication and environmental sustainability; and (iii) provide a framework for national action and international cooperation.269 It applies to all types of forests, and uses the concept of sustainable forest management (SFM) to maintain and enhance the economic, social, and environmental values of forests for the benefit of present and future generations. Through the resolution, Member States commit themselves on a voluntary basis to implement 25 national policies and measures to foster sustainable forestry ­management practices,270 and to periodically report on progress to unff. As such, it provides a policy framework, thus enhancing coordination among various forest-related policy process, which are often fragmented.271 The Instrument provides a coherent overarching framework for operationalizing internationally agreed policies and measures for achieving sfm. It looks at all aspects of management, development, and conservation of all types of forests and provides a holistic, 360-degree view of forests and their economic, environmental and social functions. The ­Forest Instrument provides a checklist for assessing the comprehensiveness of ­national forest programmes (nfps) aimed at achieving sfm. The implementation of the Forest Instrument is monitored by fao.272 269 270 271 272

269 Id. 270 Such as encourage instruments for environmental impact assessment (eia) in projects that impact on forests, enhance contribution of forestry to poverty reduction and sustainable development, promote efficient production and processing of forest products, promote an enabling environment for private sector investment in sfm, promote the ­recognition of values of goods and services provided by forests. 271 fao, A Guide to Monitoring and Evaluation of the Non-legally Binding Instrument on all Types of Forests (nlbi) 3 (2011), available at http://www.fao.org/docrep/015/mc364e/ mc364e00.pdf. 272 Id.

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8.7 Conclusion The fourth period of cooperation lasted from 2002 to 2009, and saw significant developments of the thematic agenda of the acto, leading to institutional visibility. After the institutional changes of the previous period, it was important to show that the organization could in fact achieve practical results. Within this context, it adopted the 2004–2012 Strategic Plan, which guided the organization in the following years. The Strategic Agenda showed that the institutionalization of the acto gave way to a new phase in the cooperation process. The new phase was characterized by a growing dynamic between member countries, the acto and its bodies, as well as other international institutions that became more involved in the regional cooperation process. Indeed, the organization achieved several specific goals, further advancing the environmental agenda in practical projects that were ignited in the period. The Strategic Agenda promoted the sustainable development of Amazonia, and suggested ways in which to advance conservation and sustainable use of natural resources. Indeed, it was responsible for promoting several projects that advanced the protection of forests. The Tarapoto Process further advanced the process that began in the previous period, validating indicators of sustainable forest management. The acto promoted the improvement of forestry legislation at the national level, through the alfa project, started an approach for the regional monitoring of deforestation based on technology sharing and South-South cooperation, and advanced several discussions on protected areas, ultimately leading to the adoption of the Regional Program on Protected Areas and the Regional Biodiversity Program. Initiatives regarding the management of water resources also started to be discussed, advancing the climate change agenda as a thematic focus on the acto. Finally, the acto examined ways in which the organization could approach climate change at the regional level, thus improving participation in global negotiations. At the institutional level, the acto began the period thriving. Indeed, it had a proper budget, a thematic agenda which shaped practical action, and cooperation reached a new level through a multitude of partners at different levels. Nonetheless, after the end of the mandate of the first elected ­Secretary-General, Dr. Arteaga, the acto reached a political stalemate, as countries couldn’t agree on a successor. In addition, the financial mechanisms developed in the previous decade proved insufficient, as these barely covered the basic structure of the organization, and external funding still had to be sought after for the implementation of each new project envisioned. Despite the advancement of several environmental projects, a significant number still remained purely on paper, due to the lack of sufficient financial and technical

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resources to e­ ffectively implement them. For the following years, there were no ordinary political meetings, and an ad hoc working group was once again created to ­discuss institutional changes. The working group proposed changes in the election of the Secretary-General, and the financial mechanisms to ­effectively fund the institutions. At the international level, however, the environmental agenda thrived. Indeed, the period was ignited by the 2003 World Parks Congress, which set an agenda for protected areas in the upcoming decade. The 7th Conference of the Parties to the cbd further implemented the programme of work on forest biological diversity agreed on in the previous period, encouraging ­multi-stakeholder cooperation. It also addressed protected areas specifically, as a core element to the achievement of the objectives of the convention. In 2005, the World Summit further advanced the mdgs and international cooperation, advocating for multi-level partnerships with respect to forests. S­ ubsequent unff meetings advanced the forest agenda in a more organized manner, with the adoption of the Global Objectives on Forests. Finally, redd and redd+ were approved as part of the climate change mechanisms, which represented a big win for developing countries struggling to curb deforestation. The Non-Legally-Binding Forest Instrument represents the culmination of this period’s increasingly expansive recognition of both the importance of and the complex nature of sustainable global forest management. Defined goals, implementation plans, periodic monitoring and reporting requirements, an expanding definition of holistic benefits, and the integration of policy-based, voluntary national commitments represent an enshrinement of long-term ­international cooperation and dedication to achievement of forest protection. The international community was gradually coming together to recognize the multi-faceted and deeply challenging nature of building broadly-applicable policies which adequately account for global differences while incentivizing partnerships between public, private, and ngo sectors to protect the world’s forests.

chapter 9

Fifth Period of Cooperation within the act’s Framework (2009–2017): Revitalizing the acto The Heads of State of the Member Countries of the Amazon Cooperation Treaty Organization (acto) (…) Affirming their determination to drive and consolidate cooperation between the Member States of acto in areas of common interest, thus contributing to strengthen South American unity while ensuring full ­respect to national sovereignty; Recognizing the priority need to foster the Amazon’s sustainable ­development through integral, participatory, shared and equitable management as an autonomous and sovereign response to current environmental challenges, taking into account the effects of the international financial crisis; Decide to: 1 – Endow acto with a new and modern role as a cooperation, ­exchange, knowledge and joint visibility forum to face the new and complex international challenges that lie ahead.1

∵ The fifth phase of development of the Amazon Cooperation Treaty Organization (acto) began with the 2009 Meeting of the Presidents, and the subsequent launch of the 2010–2020 Strategic Agenda.2 Following the political 1 2

1 Declaration of Heads Of State on the Amazon Cooperation Treaty Organization (Manaus, Brazil, Nov. 26, 2009), available at http://www.otca.info/portal/admin/_upload/ presidentes/3REUNION_PRESIDENTES_ING.pdf. 2 Rodolfo Ilário da Silva, A cooperação multilateral entre os países amazônicos: a atuação da Organização do Tratado de Cooperação Amazônica (otca), 126, Unpublished Masters Thesis, unesp (2012). (citing Antonio José Ferreira Simões, Amazônia e Desenvolvimento ­Sustentável: a importância da cooperação entre os países amazônicos, http://www.funag.gov .br/images/stories/PDF/Artigo_Simoes_FUNAG_Amazonia.pdf.).

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_010

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challenges faced in the previous phase, which prevented member countries to agree on a successor for the post of Secretary General for a few years, it was essential for member countries to politically ensure themselves and the ­international community about their will to continue cooperating. As such, eight years after the Permanent Secretariat (ps) was created, the organization went through a relaunch and strengthening phase, boosted by the gathering of the Heads of State and the adoption of the Manaus ­Declaration.3 Member countries decided to renew the acto as a modern forum of cooperation, recognizing sustainable development as a priority in Amazonia.4 The recognition was essential as it redefined the acto as an international organization for sustainable development of Amazonia, thus encompassing both environmental and socio-economic development principles. In addition, it welcomed emerging themes into the agenda, including climate change. Forests played a central role, with the discussion of policies that addressed several economic threats to the region, such as illegal deforestation, forest fires, and sustainable forest management policies. While several national consultations and regional meetings took place throughout the years, not all were officially approved, once again showing the slow development of activities within the context of the organization. Nonetheless, the acto effectively put into practice a regional project on deforestation monitoring, arming member countries with the necessary data to curb deforestation moving forward. Within this renewed phase, it was essential to strengthen the institution through an integral, participative, shared and equitable administration. The acto thus had to be equipped with the tools to provide an autonomous and sovereign response to the current environmental challenges. As a consequence, the regulations of the bodies of the organizations were revised, providing an easier and more efficient reaction to the regional scenario. Unlike previous phases, the agreement on new policies, regulations, and the thematic agenda followed a participatory approach. A new regional scene advanced ­integration between countries, with national policies orienting the regional efforts in terms of institutions, strategic planning, and public policy with a 3 4

3 Antonio José Ferreira Simões, Eu Sou a América do Sul, 40 (2012), available at http://funag .gov.br/loja/download/914-Eu_sou_da_America_do_Sul.pdf. 4 acto, Amazonian Strategic Cooperation Agenda (Nov. 2010) (hereinafter acto, Strategic Agenda), available at http://www.otca.info/portal/admin/_upload/apresentacao/AECA_eng .pdf.

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clearer vision for the development of the region to be ready for new regional and international challenges. With the main goal of ensuring a more stable financial flow of ­resources, member countries aimed for a “member driven” rather than “­donor driven” ps. With the approval of the Strategic Agenda, the acto was conducted by countries rather than influenced by international cooperation. With new regulations of the bodies of the organization, guidelines for the development of projects, and alternative ideas for funding, it would seem like the acto was finally equipped with all necessary tools to become more a­ ctive. Nonetheless, a period of euphoria was once again followed by a withering down of activities, and no political meetings were held since 2013 (with the exception of an extraordinary acc held in late 2016, which addressed the slow development in the previous years). This chapter analyzes the relaunch of the acto, as well as the development of regional cooperation during the fifth phase. Due to the growing dynamic of cooperation between countries, it is called the “revitalizing the acto phase”.5 In terms of institutional strengthening and the development of the acto itself, the chapter is divided in three sections. Section 9.1 analyzes the meetings and events responsible for relaunching the organization, including the 2009 Meeting of the Presidents, and the fulfillment of the mandates it included in the following years. Section 9.2 examines the contents of the Strategic Agenda. Finally, Section 9.3 discusses the implementation of the agenda, with particular emphasis on the structural changes and the institutional challenges faced to make it effective. The implementation of the environmental agenda is addressed on Section 9.4. While it broadly looks at the variety of environmental projects pursued since 2009, an emphasis is given to the forestry agenda. Section 9.5 presents the main developments of International Forest Law, and is updated until the 12th meeting of the United Nations Forum on Forests (UNFF12), which convened on January 2017. While scholars have consolidated the fifth period of cooperation between Amazon countries from 2009 until 2014, this chapter updates it until recent ­developments at the beginning of 2017. It can be summarized in Table 28. 5

5 The categorization of the development of the organization in different phases was originally suggested by Antonio Quiroga and Jacques Marcovitch, Lineamentos estratégicos para La Organización del Tratado de Cooperación Amazónica – otca, 24 (2003, non published paper)., and updated by Antonio José Ferreira Simões, supra note 3, at 39.

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Phase 5 timeline (2009–2017)

iii Meeting of the Presidents

xi mmfa

Extraordinary xvi acc acc xv acc 2009

2010

xviii acc

x mmfa

2011

xii mmfa

Extraordinary acc

2012

unff9

2013

Extraordinary acc Extraordinary acc

2014 New York Declaration on Forests

xviii acc

2015 mdgs

2016

2017

World Paris Rainforest unff11 Agreement Movement sdgs

9.1

Extraordinary acc

unff12

Relaunch of the acto

As seen during the previous chapter, Phase 4 ended with a solution to the political stalemate faced by members of the acto. With some guidance, they successfully elected the next Secretary General, allowing for the continuity of projects and activities that advance cooperation. Ambassador Manuel ­Picasso, from Peru, thus became the head of the ps.6 Within this context, Phase 5 started with a great emphasis on the new administration, with high hopes as to what it could achieve. A Meeting of the Presidents ignited the period, and relaunched the acto, establishing mandates to revise the institutional structure of the organization, and adopt a new strategic agenda to guide it in the following years. These two mandates shaped the fifth phase. This section analyzes the institutional development of the acto during the first years of the fifth phase, and is divided into four sub-sections. Following a chronological order, it starts with the 2009 Meeting of the Presidents, and the mandates it established for an updated acto. It then follows the meetings and discussions that led to the package of institutional changes adopted at the x mmfa, in particular the work of the ad hoc working group created for

6

6 lii ccacc (Apr. 23, 2009). See http://www.comunidadandina.org/Prensa.aspx?id=2612&ac cion=detalle&cat=NP&title=embajador-manuel-picasso-es-elegido-al-cargo-de-secretariogeneral-de-la-otca.

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the purpose of revising the institutional structure of the treaty and d­ rafting a new agenda. The following sub-sections discuss specific aspects of the package of measures, namely: (i) institutional revisions; (ii) financial mechanisms; (iii) strategic agenda; and (iv) guidelines for international cooperation. ­Section 9.2 analyzes the contents of the new Strategic Agenda specifically. The meetings and discussions that followed, including regarding the implementation of the agenda, are discussed subsequently. The meetings that occurred within the ­a cto’s framework during the fifth period can be summarized in Table 29. Table 29

Summary of meetings and results during Phase 5 (2009–2016)

Date

Additional notes

Apr. 23, 2009

Ambassador Manuel Picasso elected as new Secretary General. Oct. 20th, 2009 Meeting of the Forestry Authorities of acto´s member countries in Buenos Aires7 Nov. 26, 2009 2009 Meeting of the Presidents: Declaration of Heads Of State on the Amazon Cooperation Treaty Organization (2009 Manaus Declaration):8 Relaunched the acto, required the mmfa to develop a new Strategic Agenda and revise the institutional mechanisms of the organization. May 14, 2010 Extraordinary Meeting of the Amazon Cooperation Council, held in Rio de Janeiro, Brazil:9 Discussed commercial navigation, and approved the recommendations from the Meeting on Commercial Navigation on Amazon Rivers.10 Discussed the financial difficulties of 7 8 9 10

7 http://www.cnpp-otca.gob.pe/es/busqueda_avanzada. 8 Declaration of Heads Of State on the Amazon Cooperation Treaty ­ Organization (Manaus, Brazil, Nov. 26, 2009), http://www.otca.info/portal/admin/_upload/presidentes/ 3REUNION_PRESIDENTES_ING.pdf. 9 Reunión Extraordinária del Consejo de Cooperación Amazónica, Acta Final (Peru, May 14, 2010), http://www.cnpp-otca.gob.pe/archivosFisicos/Acta%20Reunion%20Extraordinaria%20CCA%20esp.pdf; http://www.cnpp-otca.gob.pe/es/dublincore/documentos/ metadata/2411. 10 Reunión Comercial en los Ríos de la Amazonía, organized in Rio de Janeiro, Brazil, on  May  12–13, 2010. Including the development of a regulation of commercial­

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Date

Nov. 29, 2010

Nov. 30, 2010

277

Additional notes the ps,11 and changes in the organizational chart. Created an Ad Hoc Working Group within the ccacc to update the regulation of the bodies of the acto. Developed guidelines for international cooperation.12 Invitation for a technical meeting to discuss REDD+, and a conference on rights of the Mother Earth. xiv Meeting of the Amazon Cooperation Council, held in Lima, Peru:13 Discussed the revisions of the regulations of the acto, a draft regulation of commercial navigation in Amazon rivers, and the draft declaration to be adopted by the mmfa. x Meeting of the Ministers of Foreign Affairs:14 Declaration of Lima:15 Approved the new Strategic Agenda and a package of institutional measures to strengthen the acto. Adopted the mmfa Declaration to the unfccc COP16.16

11 12 13 14 15 16

navigation in Amazon Rivers by the ps (Reglamento de Navegación Comercial en los Ríos Amazónicos). 11 Loss of 70 percent of the revenue due to market flunctuation and inflation. Members noted that the acto was going through an emergency situation, and a short-term solution was necessary. An ad hoc working group was suggested to propose alternatives to the acc. Within the current limitations, member countries suggested that (i) pending quotas be paid; (ii) initiate internal consultations for updating the quotas for 2012; (iii) consider reorganizing the ps; and (iv) explore the possibility of having extraordinary contributions. The ps was required to prepare a document to start the process of raising the quotas from member countries. 12 RESOLUCION res/cca – otca, Doc/ ext cca-otca Anexo 3, Versión de la Reunión Extraordinaria – 14.05.10. 13 xiv Reunión del Consejo de Cooperación Amazónica, Acta Final (Lima, Nov. 29, 2010). 14 x Reunión de Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazónica, held in Lima, Perú, Nov. 30, 2010, Acta Final. 15 act, Declaración de Lima (Nov. 2010). 16 Declaración de los Ministros de Relaciones Exteriores de los Países Miembros de la otca a la Decima Sexta Conferencia de los Estados Parte – COP-16 del cmnucc.

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Table 29

Summary of meetings and results during Phase 5 (2009–2016) (cont.)

Date

Additional notes

Feb. 2011

Ambassador Alejandro Gordillo elected as new Secretary General. xv Ordinary Meeting of the Amazon Cooperation Council, held in Brasilia, Brazil:17 Discussed the implementation of the Strategic Agenda, ­presented the results of the activities of the previous year, the current state of the pncs, and discussed the draft ­proposal for commercial navigation. Extraordinary Meeting of the Amazon Cooperation ­Council, held in Manaus, Brazil:18 Preparatory meeting to the xi mmfa. xi Meeting of the Ministers of Foreign Affairs:19 Manaus Compromise:20 Endowed the acc with the mandate to find alternative sources of funding, and approved additional measures to increase the budged. Adopted a procedure to implement projects. Adopted the mmfa Declaration for the Rio+20 Conference, which reinforced the cbdr principle. ii Meeting of the Environmental Ministers:21 Declaration of Lima:22

Oct. 18, 2011

Nov. 21–22, 2011 Nov. 22, 2011

17 18 19 20 21 22

Mar. 21, 2012 17 18 19

20

21

22

xv Reunión del Consejo de Cooperación Amazónica, Acta Final (Lima, Oct. 18, 2011). Reunión Extraordinaria del Consejo de Cooperación Amazónica, Acta Final (Manaus, Nov. 22, 2011). xi Reunión de Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazónica, held in Manaus, Brazil, Nov. 22, 2011, Acta Final. xi Reunión de Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazónica, Compromiso De Manaos (Nov. 22, 2011), available at http://www.itamaraty.gov.br/es/notas-a-la-prensa/9948-xi-reunion-deministros-de-relaciones-exteriores-de-los-paises-miembros-de-la-organizacion-del-tra tado-de-cooperacion-amazonica-manaos-22-de-noviembre-de-2011-compromiso-demanaos. acto, ii Reunión a nivel ministerial, Ministros de Ambiente, held in Lima, Peru, on Mar. 21, 2012. Available at http://www.minam.gob.pe/wp-content/uploads/2013/06/declaracion-de-lima-2012-otca.pdf. act, Environmental Ministers, Declaración de Lima (Mar. 21, 2012), available at http:// www.minam.gob.pe/wp-content/uploads/2013/06/declaracion-de-lima-2012-otca.pdf.

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279

Additional notes

May 18, 2012

Jul. 2012 May 02, 2013

May 03, 2013

Reinforced the sustainable development goals, and called for new development models that are more considerate of nature. Reinforced the cbdr principle, and the sovereign right over natural resources. Addressed the issue of illegal mining in Amazon countries. xvi Ordinary Meeting of the Amazon Cooperation Council, held in Cochabamba, Bolivia:23 Discussed the meetings held in the previous year (meeting of focal points, environmental ministers), the financial situation of the acto, perspectives of funding, the acto’s participation at Rio+20, and the draft proposal for commercial navigation. Ambassador Robby Ramlakhan elected as new Secretary General. xvii Ordinary Meeting of the Amazon Cooperation Council, held in El Coca, Ecuador:24 Discussed the need to match the financial developments with the advances regarding the implementation of the agenda, presented the developments regarding the Amazon Regional Observatory, the Agenda of Social Inclusion, and the draft proposal for commercial navigation. xii Ordinary Meeting of the Ministers of Foreign Affairs (mmfa):25 Declaration de El Coca:26 Established the Regional Amazon Observatory, discussed the inclusion of the social agenda of the acto.

23 24 25 26

23 24

25

26

xvi Reunión del Consejo de Cooperación Amazónica, Acta Final (Cochabamba, May 18, 2012). Available at http://otca.info/portal/noticia-interna.php?id=385. xvii Reunión del Consejo de Cooperación Amazónica, Acta Final (El Coca, May 2, 2013).  Available at http://www.cnpp-otca.gob.pe/es/dublincore/documentos/metadata/ 3313. acto, xii Reunión de los Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazonica (mmfa), held in El Coca, Ecuador, on May 3, 2013. xii mmfa, Declaración de El Coca (May 3, 2013), available at http://www.cancilleria.gov .co/sites/default/files/Desarrollo-Fronterizo/486-declaracion_coca_esp.pdf.

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Table 29

Summary of meetings and results during Phase 5 (2009–2016) (cont.)

Date

Additional notes

Feb. 14, 2014

Extraordinary Meeting of the Amazon Cooperation Council, held in Bogota, Colombia:27 Meeting to analyze the work plan of the acto for 2014, and evaluate the financial mechanisms in place. Discussed the recommendations from the ad hoc working group regarding a long-term financial strategy. Extraordinary Meeting of the Amazon Cooperation Council, held in Brasilia, Brazil:28 Discussed illegal forest fires, the developments regarding the observatory, and the monitoring of deforestation project. Ambassador María Jacqueline Mendoza Ortega elected as new Secretary General.29 xix Ordinary Meeting of the Amazon Cooperation Council, held in Brasília, Brazil: Adopted a declaration for the unfccc’s COP21. Extraordinary Meeting of the Amazon Cooperation Council, held in Santa Cruz de la Sierra, Bolivia: Presented a summary of activities of the ps, updated aeca and the goals for the 2017–2018 period.30

Aug. 20–21, 2014

Oct. 19, 2015 Nov. 25–26, 2015 Sep. 5–6, 2016

27 28 29 30

27

28

29

30

Reunión Extraordinaria del Consejo de Cooperación Amazónica, Acta Final (Bogotá, Feb. 14, 2014). Available at http://www.cnpp-otca.gob.pe/archivosFisicos/ACTA%20CCA%20 BOGOTA%202014_espF.pdf. http://www.cnpp-otca.gob.pe/archivosFisicos/ActaReunion_Ext_CCA_Brasilia_21_22_ Agosto_2014.pdf See also Delegados de los países amazónicos participan de reunión e­ xtraordinaria del cca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Aug. 18, 2014), available at http://otca.info/portal/noticia-interna.php?id=613. Embajadora María Jacqueline Mendoza Ortega es la nueva Secretaria General de la otca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Nov. 1, 2015), available at http://otca.pagina-oficial.com/news/details/93. Reunión Extraordinaria del Consejo de Cooperación Amazónica (5 y 6 de septiembre), Organizacion del Tratado de Cooperacion Amazonica (otca), (Sept. 1, 2016), available at http://otca.pagina-oficial.com/news/details/70.

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The 2009 Meeting of the Presidents After a long hiatus, a third meeting of the presidents was held on November 2009. It occurred within a similar context as the 1992 meeting, and was called for by Brazil in order to adopt a common position prior to the United Nations Conference on Climate Change COP15 in Copenhagen.31 The long period between the second and third presidential summits occurred mainly due to the different priorities included in the agenda of the South American countries’ external policies in the 1990s and 2000s. mercosur and can took precedence as a regional forum of cooperation in the 1990s. In the 2000s, discussions about the creation and consolidation of a South American bloc overshadowed debates on Amazonian cooperation. Between 2000 and 2009, seven summits of heads of state of South America were held: Brasilia (2000); Guayaquil (2002); Cusco (2004); Brasília (2005); Cochabamba (2006); Brasília (2008); and Bariloche (2009). Nonetheless, the acto would only hold a meeting in 2009, 17 years after the previous one. Although entities do not maintain a competitive relationship, one cannot ignore the conflicting agendas.32 However, after the political stalemate and the slow development of regional cooperation at the end of Phase 4, it was essential to clarify the member countries’ will to continue the regional process. The meeting occurred in Manaus at the end of November, and was also attended by the President of France, representing the territory of French Guyana.33 It was the first time that French Guyana officially participated at a high-level political meeting of the organization, showing the member countries’ willingness to further participation. It resulted in the 2009 Declaration of the Heads of States of the acto, which included a regional commitment to consolidate regional cooperation and endow the organization with an active cooperative role.34 Indeed, the Heads of State of member countries agreed to relaunch the acto with a new and modern role as a forum for cooperation, exchange, knowledge and joint visibility to face new and complex international challenges.35 It was important to not only limit the commitment to a simple 31 32 33 34 35

31

32 33 34 35

Paulo Henrique Faria Nunes, A Organização do Tratado de Cooperação Amazônica: uma análise crítica das razões por trás da sua criação e evolução in 13(2) Revista de Direito Internacional 220–243, 234 (2016). See also oei, Declaração de Manaus é aprovada pelos países amazônicos, available at http://www.oei.es/historico/divulgacioncientifica/noticias_142 .htm. Id., at 230. At the viii mmfa, the participation of observers at political meetings was approved. Declaration of Heads of State on the acto, ¶1 (Nov. 26, 2009). Declaration of Heads of State on the acto, ¶ (Nov. 26, 2009).

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declaration, but also actually give the organization a new role, bringing it to the 21st century. The President endowed the acto with two specific mandates: to develop a new strategic agenda and discuss once again the institutional strengthening of the organization. Member Countries instructed the mmfa to consider a new strategic agenda with plans for the short, medium and long terms within a broad range of themes.36 This mandate took into account the transformations in the national and regional realities of the Amazon States, as well as regional actions to support the national initiatives. With the goal of reducing regional asymmetries, adopting complementary and solidary economic alternatives for the sustainable and rational use of Amazonian biodiversity and other ­resources, and improving the quality of life of the local populations, the declaration set forth the content of the agenda, namely to: Build an integral regional Amazonian cooperation vision that incorporates economics, environment, health, indigenous and tribal peoples, education, science and technology, water resources, infrastructure, commercial navigation and facilitation thereof, tourism and c­ ommunications, with a view to promoting the harmonious and sustainable development of their respective Amazonian spaces. Identify actions to reduce and monitor deforestation, favor sustainable forest resources management and implement urgent measures to ensure biodiversity conservation and preservation, focusing on economic, rational and sustainable use, and including the search for mechanisms that support and create funding strategies to conserve and protect the forests. Strengthen the institutional and political mechanisms of the indigenous and tribal peoples of acto to further a diagnosis of their situation by designing indicators, or others, with a view to identifying joint actions that enable them to develop in harmony with nature, while protecting and conserving their traditional extractive products. Protect, manage and preserve the region’s water resources to ensure the health of the fluvial ecosystem. Develop actions to promote food security and the eradication of hunger in the shortest delay possible. Coordinate environmental health surveillance, execute coordinated actions in frontier areas, and adopt coordinated prevention mechanisms. Foster ecotourism. 36

36

Declaration of Heads of State on the acto, ¶2 (Nov. 26, 2009).

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Decisively drive a regional science and technology agenda for the Amazon that includes traditional knowledge. Instruct the acto Permanent Secretariat to accompany international negotiations on central issues for Amazonian cooperation such as climate change, biological diversity and forests. Any actions taken as a result thereof shall be previously approved by the member countries. Incorporate sectoral ministerial meetings as part of the process of implementing the Strategic Agenda. Indeed, in order to strengthen the cooperation process and unity in South America, the Presidents entrusted the mmfa to prepare the new Strategic Agenda of acto, therefore promoting institutional strengthening of the organization.37 Through the Declaration, the heads of state turned sustainable development as the main goal of the treaty. Indeed, they promoted a holistic view that addressed the challenges faced throughout the region, specifically with respect to poverty eradication. Forests took central stage, and climate change officially became part of the acto’s mandate. Finally, the role of Amazonian people, and indigenous populations specifically, was highlighted, as an essential aspect to integrate the region. The Presidents also reaffirmed the importance of relaunching the acto through the strengthening of the ps itself, and endowed the mmfa with the mandate to adopt measures towards concrete actions for its institutional strengthening. If member countries wanted to achieve practical results, the acto had to play a leading role, moving beyond aspirations. The actions would enable compliance with the requirements from member ­countries. Specifically, a permanent solution for the headquarters was required.38 In addition, it was essential to once again revisit the two main i­ nstitutional ­challenges faced by the organization: the lack of proper and stable funding,39 and the lack of compliance with article xxiii of the act, which required member countries to establish Permanent National Commissions (pncs).40 The Manaus Declaration was a response to the management difficulties ­observed during Phase 4. After an extended dialogue between countries, a political agreement allowed for the integration of a new team for the ps supported by all members,41 with a clear mandate to revert the pattern of i­ neffectivess 37 38 39 40 41

37 38 39 40 41

Declaration of Heads of State on the acto, ¶3 (Nov. 26, 2009). Declaration of Heads of State on the acto, ¶4 (Nov. 26, 2009). (res/x mre-otca/4, 2010). Declaration of Heads of State on the acto, ¶5 (Nov. 26, 2009). Declaration of Heads of State on the acto, ¶6 (Nov. 26, 2009). Declaration of Heads of State on the acto, ¶7 (Nov. 26, 2009).

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and establish conditions for a new development phase. Consequently, the acto started a process of institutional review, revisiting its internal rules.42 Relaunching the acto The Manaus Declaration produced quick effects, and the acto’s bodies started complying with their given mandates. In 2010, the ps started revising the thematic and institutional structure of the organization. For this purpose, an ad hoc working group was created with the specific mandate to develop a new strategic agenda. National consultations were subsequently held in the eight countries, and ten regional meetings were organized to discuss specific themes.43 Meetings were also held between the coordinators of the special commissions and Ministers of Foreign Affairs. On those occasions, coordinators presented the projects developed, and suggested an agenda and ways to improve coordination with the member countries.44 Unlike previous institutional strengthening processes, the course of action was highly inclusive, welcoming participation of a wide range of stakeholders. The working group investigated options to institutionally strengthen the organization, and proposed a series of recommendations to the acc. The study included alternatives to address the financial crisis, such as increased percentages of financial contributions from member countries, as well as draft revisions of the five regulations of bodies of the acto.45 In order to effectively implement the relaunching campaign, the countries met at the xiv acc in Lima.46 As a result of the recommendations of the ad hoc working group and the acc, five draft regulations were presented to the mmfa. The x mmfa was held five years after the previous one, and marked 30 years since the act entered into force.47 The ministers noted the need to have more frequent high-level meetings, and the relevance of having a high-level 42 43 44 45 46 47

42

43 44

45 46 47

acto and the gef Amazon Project, Amazon Waters, Year 1 No. 2, Amazon Cooperation Treaty Organization (acto), (2016), available at http://www.otca.info/portal/admin/_upload/publicacoes/589-BOLETIN_2_INGLES.pdf. xiv Reunión del Consejo de Cooperación Amazónica, Acta Final (Lima, Nov. 29, 2010), item 1. Coordinaciones presentan planes de trabajo, Organizacion del Tratado de Cooperacion Amazonica (otca), (May 14, 2010), available at http://otca.info/portal/noticia-interna .php?id=54. xiv Reunión del Consejo de Cooperación Amazónica, Acta Final (Lima, Nov. 29, 2010), item 2. xiv Reunión del Consejo de Cooperación Amazónica, Acta Final (Lima, Nov. 29, 2010), item 3. x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010).

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­gathering during the anniversary.48 The Secretary General noted the work developed by the ps during the previous months, and the several measures suggested giving the acto a renewed and modern role.49 Indeed, a year after the meeting of the presidents, the acto had a clear plan for its future, as well as alternatives to achieve it. In addition to the studies conducted for the new agenda and the revised regulations, the ps created a new website, endowing the organization with increased capacity. As a result of the x mmfa, the Lima Declaration was adopted. Member countries noted the ongoing commitment to the principles and goals subscribed in the act.50 They expressed the will to actually develop an Amazonian identity, characterized by the megadiverse ecosystem shared by countries.51 Although mentioned briefly, the lack of a regional identity was one of the main reasons for poor commitment and slow continuity. Even if no a­ ctions to achieve were noted, recognizing the problem was an important first step. In addition, they noted the need to protect and promote the traditional knowledge of i­ ndigenous groups,52 fight poverty,53 deepen cooperation and exchange of experiences through best practices in science and technology by establishing institutional and academic regional networks, mechanisms of ­communication and information, and improving the quality and reach of basic services in health, education, potable water, and sanitation for the ­indigenous groups and other traditional communities.54 The link between the well being of populations and regional development became obvious. Finally, Ambassador ­Antonio Patriota, from Brazil, highlighted the need to update the mandate of the acto by addressing emerging themes such as climate change, energy, and regional development, reinforcing the new challenges noted in the Manaus Declaration.55 With respect to institutional challenges, member countries noted the need to broaden the sources of cooperation to implement programs, projects, and strategic activities.56 The political consultations on the treaties and global negotiations, specially specific areas of forests, biodiversity, threatened species and climate change were particularly noted, once again reinforcing the ­mandate endowed by the presidents, and the acto’s role as a regional voice.57 48 49 50 51 52 53 54 55 56 57

48 49 50 51 52 53 54 55 56 57

x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010). x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010), item 1. act, Declaración de Lima ¶2, ¶4 (Nov. 30, 2010). res/x MRE-OTCA/1. act, Declaración de Lima ¶10 (Nov. 30, 2010). act, Declaración de Lima ¶11 (Nov. 30, 2010). act, Declaración de Lima ¶12 (Nov. 30, 2010). act, Declaración de Lima ¶14 (Nov. 30, 2010). x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010). act, Declaración de Lima ¶18 (Nov. 2010). act, Declaración de Lima ¶16 (Nov. 2010).

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In addition, it was particularly important to ensure greater financial and technical autonomy, giving more independence to the ps.58 Within this context, member countries thanked the governments and international bodies that provide technical and financial assistance to the acto.59 At the meeting, ministers approved several important measures towards the future of regional cooperation. Through a package of measures, the institutional structure was strengthened.60 These addressed four themes, which will be explained in the following sub-sections: (i) institutional revisions; (ii) financial mechanisms; (iii) strategic agenda; and (iv) guidelines for i­nternational cooperation. These strategically addressed the weak links of regional cooperation. Institutional Revisions Within this spirit, a new structure of the Permanent Secretariat was adopted, which is reproduced in Figure 6.61 In addition, new regulations of the ps and the ps’ staff, the mmfa, acc, and ccacc were approved.62 Organigrama de la Secretaría Permanente de la SP/OTCA MARZO/2010

SECRETARIO GENERAL Jefe de Despacho Asesoría de Comunicación

Secretaria Ejecutiva Asesoría Jurídica

Director Ejecutivo Unidad Técnica de Apoyo

Coord. de Salud

Coord. de Asuntos Indigenas

Director Administrativo

Informatica

Secretaria

Coord. Transporte, Infraestructura, Comunicación y Turismo

Coord. de Medio Ambiente

Coord. de Ciencia, Tecnología y Educación

Controller

Bibliotecario

Asistente

Recepcionista

Asistente Financiero Contabilidad

Mantenimiento Asesoria Legal

Servicios tercerizados

Figure 6

58 59 60 61 62 63

58 59 60 61 62 63

acto’s structure.63

x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010), item 1. act, Declaración de Lima ¶17 (Nov. 2010). act, Declaración de Lima ¶6 (Nov. 30, 2010). res/x mre-otca/2, adopted at the x mmfa meeting, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/3, adopted at the x mmfa meeting, held in Lima, Peru, on Nov. 2010. res/x mre-otca/2, adopted at the x mmfa meeting, held in Lima, Peru, on Nov. 30, 2010. See BASE JURÍDICA DEL TRATADO DE COOPERACIÓN AMAZÓNICA, Organización del

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pncs The reactivation and strengthening of pncs was particularly noted in the Lima Declaration, as the bodies responsible for national implementation of the regional agenda.64 Member countries highlighted the need to improve cooperation between the national agencies responsible for development of the Amazonian territories, through the exchange of mechanisms, information, and technologies.65 Member countries had promoted several initiatives throughout the year to strengthen the pncs, including meetings between ­specific countries and the ps.66 As a response to these efforts, pncs were finally reactivated, responding to a decades-long plight. While recognizing their satisfaction with the reactivation of the 8 pncs, countries made it incumbent upon the ps to support member countries, and stimulate participation, If possible, pncs should have a dedicated staff, focused exclusively on fulfilling the agenda related to the treaty and the relationship with the ps.67 Financial Contributions As seen during Phase 3, an intense negotiation was required to consent to a quota as a commitment to financial contributions. While an agreement was reached, Phase 4 went by without any updates to the quotas. Due to the inflation and the exchange fluctuations between 2000 and 2010, the contributions became insufficient. At the x mmfa, member countries agreed it was necessary to revise the budget of the acto,68 updating their contributions.69 The total amounted to US$1,667,719.00, divided according to the Table 30. The amount covers the operational expenses of the ps, including the headquarters, the salaries of the staff, and the residence of the Secretary General.70 These do not cover, however, any thematic projects included in the strategic agenda, or the eventual hire of consultants according to the needs of the acto.

64 65 66 67 68 69 70

64 65 66 67 68 69 70

Tratado de Cooperación Amazónica – Secretaría Permanente (otca/sp), (2003–2012), p. 171, available at http://otca.info/portal/admin/_upload/base_juridica/149-Espanhol .BJ.pdf. act, Declaración de Lima ¶9 (Nov. 2010). act, Declaración de Lima ¶8 (Nov. 2010). otca, Países Miembros de la otca fortalecen comisiones nacionales (May 31, 2010), available at http://otca.info/portal/noticia-interna.php?id=57. res/x mre-otca/6, adopted at the x mmfa, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/4, 2010. res/x mre-otca/4, adopted at the x mmfa meeting, held in Lima, Peru, on Nov. 30, 2010. Rodolfo Ilário da Silva, supra note 2, at 140.

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Table 30

Contributions of countries71

Country

Agreed in 200072

Agreed in 201073

Total Contribution Brazil Colombia Peru Venezuela Ecuador Bolivia Guyana Suriname

US$1,139,600 US$398,860.00 US$182,336.00 US$182,336.00 US$182,336.00 US$74,074.00 US$74,074.00 US$22,792.00 US$22,792.00

US$1,668,000 US$678,062.00 US$255,270.40 US$255,270.40 US$255,270.40 US$87,829.54 US$87,829.54 US$24,093.42 US$24,093.42

While there was a positive increment to the contributions, the total budget still fell short of the amount needed. Indeed, the budget only covers the basic operation of the acto, and doesn’t allow for additional expenses in terms of hiring external consultants, or implementing the wide range of projects d­ efined in the Strategic Agenda.74 Within this context, the acc was ­required to ­propose a procedure to implement a plan for financial updates ­until 2018.75 Strategic Agenda In addition to the institutional modifications, the x mmfa adopted the new Strategic Agenda for Amazonian Cooperation.76 The new agenda complied with the mandate of the 2009 Manaus Declaration, and the goal to give the acto a renewed and modern role. It contained goals at the short, medium, and long terms, including specific actions at the regional level to support n ­ ational initiatives.77 The agenda included issues in the economic, e­nvironmental, health, indigenous and tribal peoples, education, knowledge, science and 71 72 73 74 75 76 77

71 72 73

74 75 76 77

Rodolfo Ilário da Silva, Multilateralismo Amazônico, entre Êxitos Geopolíticos in bjir, Marília, vol. 2, No. 3, 542 (Set/Dez, 2013). torrecuso, 2004. Contributions approved in the vi mmfa (2000). Contributions approved in the x mmfa (2010). Category i: Brazil, 70%; Category ii: Colombia (40%), Peru (40%) y Venezuela (40%); Category iii: Bolivia (18.57%) y Ecuador (18.57%); Category iv: Guyana (5.71%) y Suriname (5.71%). Rodolfo Ilário da Silva, supra note 2, at 141. res/x mre-otca/2, adopted at the x mmfa, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/5, approved in the x mmfa, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/5, approved in the x mmfa, held in Lima, Peru, on Nov. 30, 2010.

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technology, water resources, infrastructure, commercial navigation, tourism and communications, as well as emerging issues. It will be analyzed in the following section. Guidelines for International Cooperation Finally, the member countries addressed the need to establish ground rules for agreements between the ps and third countries, international organizations or other entities.78 The guidelines establish procedures for international cooperation to be followed whenever a proposal for a new agreement arises.79 9.2

Strategic Agenda of Amazon Cooperation (aeca)

The Strategic Agenda of Amazon Cooperation (called aeca – Agenda ­ stratégica de Cooperação Amazônica) was approved at the x mmfa, held E in Lima on November 2010.80 Based on the mandate of the 2009 Lima Declaration,81 it was essential to revise the 2004–2012 Strategic Plan. Unlike the previous plan, which directed the acto between 2002 and 2009, the new Strategic Agenda underwent a broad consultation process, and was negotiated between all Amazon countries, giving it more legitimacy.82 An extensive consultation, regional sectoral dialogue, and information gathering followed. With an 8-year implementation horizon, the new agenda intended to fulfill two main missions: facilitate cooperation between members and project the region within the context of international relations.83 It thus placed the acto as a mechanism, directed at assisting members nationally, and placing them jointly internationally. The new agenda went beyond repeating the original principles of the act. It established both a vision for the Amazon region and a vision for the future, embracing the principle of sustainable development and the rights and ­responsibilities of countries at the national and international levels. The Vision for the Amazon region reads: 78 79 80 81 82 83

78 79 80 81 82 83

Achieve sustainable development in the Amazon region reconciling use, protection and conservation of its resources, with equitable conditions res/x mre-otca/7, approved in the x mmfa, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/7, approved in the x mmfa, held in Lima, Peru, on Nov. 30, 2010. res/x mre-otca/5, approved in the x mmfa, held in Lima, Peru, on Nov. 30, 2010. acto, Strategic Agenda, Introduction, supra note 4, at 12. Id., at 127. Id., at 126 (citing pires, 2011, pp. 03–04).

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that ensure integral sustainable development, effective presence of the State in its different levels of Government and Amazonian populations that fully exercise their rights and obligations in the framework of the national laws in force and international agreements.84 As the Manaus Declaration, it embraced sustainable development, bringing it to the core of the treaty. In addition, the vision for the future reads: An Organization that is internationally recognized within the Member Countries and in the international environment as a reference in regional cooperation, discussions and positions on topics of the international agenda related to the Amazon, and sharing experiences, guided by the principles of full sovereignty, respect and harmony with nature, integral sustainable development and reducing asymmetries between the ­nations of the region.85 The vision for the future pertained to the acto’s role itself. Indeed, the ideal for member countries was for the organization to become an international reference in the broad areas it addresses. In addition, it broadened the principles of the act, with a larger emphasis on the respect of nature, the pursue of sustainable development, and the reduction of the social inequalities in each country. On the other hand, the acto’s mission reads: To be a permanent cooperation, exchange and information forum guided by the principle of reducing regional asymmetries among the Member Countries through its actions, cooperating in national processes for ­socioeconomic progress and enabling a gradual incorporation of these vast territories into the national economies, promoting regional cooperation actions to improve the quality of life of Amazonian inhabitants, and working under the principle of sustainable development and sustainable livelihoods in harmony with nature and the environment and considering the internal laws of the Member Countries.86 Indeed, the role as a regional forum was clearly defined, focusing on the ­exchange of information. Once again, the principle of reducing regional asymmetries was noted, along with cooperation for socioeconomic progress, ­incorporation of the areas in the national territories, an improved quality of

84 85 86

84 85 86

acto, Strategic Agenda, supra note 4, at 15. Id., at 15. Id., at 15–16.

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life. Sustainable development was at the core of the cooperation process. Finally, the agenda provided the strategic objectives of the acto: Facilitate exchange and cooperation among the Member Countries, promoting strategic sustainable development and sustainable livelihoods in the region to improve the quality of life of its inhabitants, with emphasis on vulnerable populations, indigenous peoples, and other tribal communities. Ensure that the interests and sovereignty of the Member Countries are respected and promoted. Facilitate and foster actions to preserve, protect, conserve and sustainably use the forest, biodiversity and water resources of the Amazon. Promote management of Amazonian resources in a context of respect and harmony with nature and the environment. Promote and disseminate the cultures of the Amazon, and foster ­respect and protection of ancestral and current knowledge and wisdom. Promote coordination of plans and programs of Member Countries for the development of Amazonian populations, paying particular attention to vulnerable populations, indigenous peoples, and other tribal communities.87 Through both visions, the mission, and the agenda included in the Strategic Plan, the original principles of the act were expanded, with a bigger concern on the social and economic equality among members and their people. Indeed, the principle of sovereignty was only mentioned once, instead of ­being constantly reinforced, as seemed to be the rule in each document approved by member countries. Sustainable development was at the core of each ­statement, guiding all future work done by the organization. Finally, the social aspects within Amazonia became increasingly more relevant. While the original language of the act included the purpose of integrating the ­regions within the national territories, it quickly became a background issue throughout the cooperation process. The agenda should thus be guided by the ­principles of r­educing regional asymmetries, adopting complementary and solidary economic alternatives for the sustainable and rational use of Amazonian ­biodiversity and other resources, and improving the quality of life of the ­local populations. In addition, the organization should encourage the participation of ­multiple stakeholders, especially indigenous communities, as well as develop mechanisms and studies with indicators to assess and address their specific issues. 87

87

Id., at 16.

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Framework of the aeca The visions, mission, and strategic goals of the acto were based on two axes of transversal approach: (i) conservation and sustainable use of renewable natural resources, and (ii) sustainable development (improving quality of life for the Amazon Region’s inhabitants).88 The sectoral agendas are developed considering the two crosscutting axes, which provide it with more flexibility. In addition, the Strategic Agenda presents a thematic approach that integrates the various areas of the act. The programmatic areas are: (i) conservation, protection, and sustainable use of renewable resources;89 (ii) indigenous affairs;90 (iii) knowledge management and information sharing;91 (iv) regional health management;92 (v) infrastructure and transport;93 (vi) tourism;94 (vii) institutional, financial and legal strengthening;95 and emerging topics.96 In order to facilitate implementation of the thematic agenda, the aeca ­defined the necessary measures in institutional strengthening, according to the following operational instruments: (i) a revised role and directives of the ps; (ii) the cycle of projects of the acto; (iii) communications; (iv) institutional structure to execute the agenda; (v) funding; and (vi) monitoring and evaluation. Within this context, the role and action guidelines of the ps were reestablished, as well as the institutional structure to manage the agenda, and finance modalities.97 The strategic axes, programmatic areas, and operational instruments coordinate according to the matrix in Table 31. The multisectoral vision of programs, projects and activities identified addressed the diverse needs and concerns of countries. Combined with the implementation aspects of the agenda, member countries ensured the complete framework to put the goals into practice. Although Amazon ­cooperation ­involves efforts in a variety of complex areas, a tripod of sustainable development in the Amazon can be identified. This tripod is formed by three

88 89 90 91 92 93 94 95 96 97

88 89 90 91 92 93 94 95 96 97

Id., at 17. Id., at 23–34. Id., at 34–37. Id., at 38–40. Id., at 40–45. Id., at 46. Id., at 46–49. Id., at 49–51. Id., at 51–54. Id., at 12.

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Synthetic matrix of the plan98

Vision for the Amazon and acto General thematic Crosscutting Axes Conservation and sustainable use of Sustainable development content renewable natural resources Conservation, protection and sustainable use of renewable natural resources

Indigenous Affairs

• Forests • Water resources • Management, monitoring and control of wild flora and fauna species endangered by trade • Protected areas • Sustainable use of biodiversity and promotion of bio-trade • Research, technology and innovation in Amazonian biodiversity • Indigenous Peoples in voluntary isolation and initial contact • Protecting traditional knowledge of Indigenous Peoples and other tribal communities • Lands and territories of Indigenous Peoples and other tribal communities • New topics

Knowledge management and information sharing

Sectoral Agendas

• Coordination with other initiatives • Epidemiologic surveillance • Environmental health • Development of health systems • Health technologies to improve the efficiency and effectiveness of health Regional health interventions management • Determinants of health in the Amazon • Human resources policies for the Amazon • Special programs for surveillance • Drive, strengthen and consolidate research in the Amazon • Funding for the health agenda Infrastructure • Transport infrastructure and transport • Commercial navigation

Tourism

• Systematizing of tourism information in the Amazon • Creation of integrated regional circuits • Development of environmentally sustainable Community – based tourism • Strengthening the Amazon’s tourism image • Regional tourism funding mechanism proposal

Institutional, financial and legal strengthening. Emerging topics • Climate Change • Regional Development • Energy Ps/Acto Role And Activities Map

Mission and Strategic Objectives

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­ illars that represent essential elements to support and advance the agenda: p (i) ­institutional strengthening, coupled with adequate resource mobilization to ensure funding for priority projects; (ii) actions for social inclusion and poverty alleviation; and (iii) science, technology and innovation.99 For the purposes of this book, three specific themes of the agenda (forests, protected areas, and climate change), including the structural recommendations to allow for implementation, are specifically analyzed in the following sub-sections. Forests, Protected Areas, and Climate Change Agenda The first topic of the thematic agenda is conservation, protection, and sustainable use of renewable resources. The goal is to contribute to sustainable development and sustainable livelihoods and to keep the environment clean and healthy.100 The topic includes six subtopics: (i) forests; (ii) water resources; (iii) management, monitoring and control of wild flora and fauna species endangered by trade; (iv) protected areas; (v) sustainable use of biodiversity and promotion of biotrade;101 and (vi) research, technology and innovation in Amazonian biodiversity.102 Each of the subtopics includes an objective and activities in the short, medium, and long term. The agenda gives significant attention to the topic of forests. In addition to including forests as the first sub-topic, it lays out a broad range of activities to implement the goals of the Strategic Agenda. The main objective is to recognize Amazonian forests as an environmental asset, providing it with an economic value that can fund activities towards preservation. In addition, member countries were concerned about increasing public participation of a broad range of stakeholders connected with forests, thus allowing for a more participative process. In the short term, the priorities are to monitor forest cover, and promote forest control, especially by combating illegal logging and forest fires, and inducing the recovery of degraded areas and reforestation.103 The agenda determines: 98 99 100 101 102 103

98 99 100 101

Id., at 19. Antonio José Ferreira Simões, supra note 3, at 42. acto, Strategic Agenda, supra note 4, at 23. In the case of Bolivia and Venezuela, considering that their legislations do not provide for biodiversity and biotrade, they do not participate in the concepts and guidelines of the subtopic biodiversity and biotrade. Id., at 23. 102 Id., at 23–34. 103 pires, 2011, page 04.

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A.4. Subtopic: Forests Objective: integrated and integral104 sustainable forest management and conservation that result in real benefits for local populations. Activities (short term): i. Design methodologies for economic and environmental valuation of the forest.105 ii. Forest cover monitoring and forest control. iii. Promote and strengthen community forest management.106 iv. Promote and strengthen social participation in forest management. v. Facilitate capacity-leveling and analysis spaces for global dialogue (unff and unfccc). vi. Liaise sustainable funding for the forest sector. vii. Look for and identify new and additional funds for forest preservation. viii. Propose incentive mechanisms for reforestation. ix. Promote forest awareness among the Amazonian populations. x. Promote international technical and financial cooperation to combat illegal logging. xi. Promote actions to prevent and control forest fires. xii. Promote conservation, rehabilitation, reforestation and maintenance activities for forests and degraded areas. xiii. Promote the design and application of instruments for the economic forest valuation, its goods and services that may be used as a reference for executing programs and projects oriented to its conservation and sustainable use. Activities (medium term): i. Promote forest sector accounting in the National Accounts. ii. Promote the development of methodologies and shared tools ­related to the role of forests in combating climate change. 104 105 106

104 For the effects of the Strategic Agenda “integrated and integral forest management” means that the forest issue should be approached in a broad and comprehensive manner considering the multiple aspects of the forest, multidisciplinarity and other aspects, taking into account the definition of the United Nations Forum on Forests. Id., at 23. 105 The activities related to the economic and environmental valuation of forests as well as the environmental services will be performed based on the local laws and rules of Member Countries. Id., at 24. 106 For Peru forest management should be coordinated between the central government, the regional and local governments with the participation of the inhabitants and forest users. Id., at 24.

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iii. iv. v. vi. vii. viii. ix.

Liaise sustainable funding for the forest sector. Promote actions to improve the sector’s competitiveness. Promote and strengthen social participation in forest management. Promote sustainable forest management with social inclusion. Promote rehabilitation of forest ecosystems. Promote the development of non-timber forest products. Promote information sharing on forests and protected areas and technical exchange of experience. x. Promote international technical and financial cooperation to combat illegal logging. xi. Promote forest awareness among the Amazonian population. Activities (long term): i. Liaise sustainable funding for the forest sector. ii. Coordinate development of value adding initiatives. iii. Coordinate land use planning and ecological zoning to build the bases for regional planning.107 The Strategic Agenda included an even broader range of activities with respect to protected areas, the fourth topic within the conservation, protection, and sustainable use of renewable resources theme. The acto divided the subtopic in eight different lines, each with activities in the short, medium, and long term. With the main goal of strengthening management of protected areas at the national level and contribute to biodiversity conservation at the regional level, the agenda addressed the challenges in information gathering, institutional capacity, funding, increased participation, governance, monitoring, and negotiation at the global level. Indeed, the agenda determines: A.4. Subtopic: Protected Areas. Objective: Strengthen management in national protected area systems with an ecosystem approach and contribute to biodiversity conservation in a regional context. Line 1: Strengthen institutional planning and management capacity of National Protected Area Systems (npas) of the countries. Activities (short term): i. Systematize principles and guidelines to support planning in npas. ii. Strengthen collaborative management initiatives and coordinated operations between shared boundary Protected Areas (pa) in ­frontier zones. 107

107 Id., at 23–25.

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iii. Establish strategic cooperation partnerships with the public and private sectors. iv. Support national initiatives to prioritize biodiversity zones in each country. v. Prepare a regional diagnosis and map pressures and threats for protected areas and Amazonian biodiversity. vi. Establish shared boundary conservation areas in frontier zones identified for their conservation value. Activities (long term): i. Insert the actions of the Regional Program in local, regional and national development plans. Line 2: Develop capacities of npas human resources and other players involved in managing protected areas. Activities (short term): i. Consolidate national diagnostic assessments and proposals for capacity building. ii. Support the execution of national capacity-building plans or similar instruments for Amazonian pa management. iii. Support the participation of delegations within the framework of the cbd. iv. Experience exchange (trainee programs) for pa staff, prioritizing topics and areas. Activities (medium term): i. Establish a scholarship fund that can be accessed by technical staff and employees of Amazonian pas. Line 3: Consolidate and systematize country information on natural ­protected areas of the Amazon. Activities (short term): i. Promote a shared and complementary information system between the countries. ii. Develop a dissemination and communication strategy for the actions of the Regional Program. Activities (medium term): i. Generate a baseline of the state of pa and identify strategic players. ii. Promote a shared and complementary information system between the countries. iii. Develop a dissemination and communication strategy for the actions of the Regional Program. Activities (long term): i. Promote a shared and complementary information system between the countries.

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ii. Develop a dissemination and communication strategy for the ­actions of the Regional Program. Line 4: Promote dialogue forums. Activities (short term): i. Promote dialogue on relevant topics for Amazonian pa management that are of interest to some or all of the members. ii. Support efforts to establish dialogue spaces between the program and the Frontier Commissions to enable coordination and cooperation. iii. Support the participation of delegations within the framework of the cbd. Activities (medium term): i. Promote dialogue on relevant topics for Amazonian pa management that are of interest to some or all of the members. Activities (long term): i. Promote dialogue on relevant topics for Amazonian pa management that are of interest to some or all of the members. ii. Support the participation of pa staff in international events and arenas related to pa management. Participate in new intersectoral scenarios. Line 5: Design, develop and consolidate funding alternatives and financial sustainability strategies for Amazonian npas. Activities (short term): i. Support national mechanisms, existing or in development, to ­ensure financial sustainability of Amazonian pa. Line 6: Develop strategies to increase participation of pa and their zones of influence in socioeconomic development. Activities (short term): i. Identify successful initiatives of sustainable natural resource ­exploitation by local populations and offer opportunities for them to be shared. ii. Promote exchange of experience in managing impacts of infrastructure works and other development initiatives with potential impacts on pa. Activities (medium term): i. Design and conduct a communication strategy for decision-makers, opinion formers, and public and private entities. ii. Support national strategies to develop tourism in Amazonian pa by integrating them to international circuits. Line 7: Governability, governance and shared management in the ­Amazonian pa.

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Activities (short term): i. Promote exchange of experience in managing protected areas shared by other forms of land use and occupation (indigenous lands, afrodescendant lands, traditional populations, among others). ii. Ensure social participation in pa management through exchange of experience with policies, plans and practices. Line 8: Implement a monitoring and evaluation system for the Regional Program. Activities (short term): i. Design and implement a monitoring and evaluation system.108 Finally, the agenda included a section on emerging topics, namely climate change, regional development, and energy. After a disagreement as to the role the organization should take with respect to climate change in previous phases, the acto officially decided to include it as a formal aspect of its agenda. With the main goal of promoting coordination to counter the impacts of climate change, the agenda included specific activities in information gathering and regional coordination. In addition, the acto was endowed with the role of formulating and implementing projects in climate change mitigation and adaptation. Indeed, the subsection on climate change reads: Climate Change. Objective: Coordinate and harness efforts in the region to counter the impacts of climate change, mainly by protecting the Amazon and its local  populations identifying alternatives to strengthen regional cooperation. Activities (short term): i. Prepare technical studies on specific methods to protect tropical forests against droughts and floods in the Amazon. ii. Design specific programs to help Amazonian indigenous peoples face the impacts of climate change, respecting their cultures and their rights. iii. Promote the design and implementation of instruments for the economical valuation of forests, its goods and services that may serve as a reference for the execution of programs and projects focused on the mitigation of climate change.

108

108 Id., at 28–31.

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Activities (medium term): i. Identify opportunities for financing the execution of projects for clean development mechanisms and mitigation programs. ii. Help the Member Countries, at their request, participate more effectively in the multilateral effort to adjust, mitigate and adapt to climate change. iii. Propose applied research for possible actions geared to mitigation and adaptation. iv. Formulate local climate change adaptation projects in the Amazon Basin. v. Prepare studies on sectoral adaptation costs in the region. vi. Prepare technical studies on specific methods to protect tropical forests against droughts and floods in the Amazon. vii. Design specific programs to help Amazonian indigenous peoples face the impacts of climate change, respecting their cultures and their rights. viii. Coordinate quantitative and qualitative assessments of secondary  effects on health and propose actions for adaptation and mitigation. ix. Raise awareness of climate change effects on health by promoting communication and dissemination of information with a multidisciplinary approach. x. Establish dialogue discussion spaces on health, food security and climate change. Activities (long term): i. Support Member Countries, that so request, in identifying international financial mechanisms based on the reduction of emissions by deforestation and degradation of forests REDD+ that might ­facilitate payments to the countries that preserve their forests. ii. Support applied research to promote initiatives for conservation, restoration and recovery of degraded forests, ecological floors and degraded watersheds, sustainable forest management; and biological diversity protection, with international financial and ­technological support. iii. Create networks to share information on the latest climate changerelated technologies.109 109

109 Bolivia holds a critical view with regard the funding mechanisms.

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Role of the Permanent Secretariat The 2009 Agenda broadened the ps’s responsibilities, providing a list of roles it must perform. Indeed, the revised ps must function as a (i) liaison, fostering consensus among members to develop activities, programs and projects that involve national, regional and international players; (ii) facilitator, establishing spaces for political and technical dialogue among the member countries to ensure compliance with its mandates, including topics of interest of international forums like those related to climatic change, forests, biological diversity and trade of endangered species; (iii) coordinator, regionally managing and administering the execution of activities, programs and projects based on the mandates received from the member countries; (iv) arranger of regional and international cooperation support, identifying financial cooperation sources to develop specific regional activities commissioned by Member Countries based on their priorities, with full respect for national sovereignty; (v) generator of regional information, producing reference regional information to ­propose analysis scenarios for the Amazon through experience and knowledge shared by the member countries; and (vi) promoter of actions to strengthen institutional capacity within the member countries according to their needs.110 Indeed, the revised role reinforced the idea of the acto, and the ps specifically, as a mechanism at the service of member countries. Rather than a ­developer of regional policies, or a body that leads the region, the idea of a member-driven ps/acto was promoted. The difference is significant, as it advances the idea that the acto cannot limit any rights or guarantees of countries, and does not establish additional obligations to those already required by International Law. On the contrary, the ps/acto is a facilitator, helping countries achieve the goals of sustainable development committed to at the international level. In addition, the ps must follow specific action guidelines to underpin its work. As such, the ps should (i) always search for consensus and results; (ii) promote permanent consultation to the member countries and its stakeholders through the mfa; (iii) promote fast and periodic information exchange using Information and Knowledge Technology – ikt; (iv) promote effective coordination with the pncs through the mfa; (v) foster transparent communication; strengthen synergy and cross-cutting action between the coordinating offices; (vi) increase participation of mfa focal points; (vii) stimulate broad publicity for its activities and projects; (viii) plan, monitor and periodically 110

110 acto, Strategic Agenda, supra note 4, at 20–21.

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evaluate activities and projects; (ix) disseminate the annual reports produced by acto and its member countries in the framework of the act and others considered relevant by the member countries themselves; and (x) facilitate procedures to expedite decision-making by the member countries.111 The specific guidelines widely addressed increased participation from member countries, including different stakeholders and representatives of the government. Indeed, as the majority of decisions are done at the political level, conducted by foreign affairs ministers, these can often be far removed from the technical and scientific realities of the country. Within this context, a wider participation is essential. The guidelines also addressed the need for increased transparency and accountability, and the need for a speedier decision-making process. Project Cycle One of the main criticisms to the treaty has been its slow implementation of projects.112 In order to facilitate the achievement of goals and activities, the new agenda included a plan for project implementation, according to the guidelines previously established.113 These guidelines were based on a resolution adopted at the x mmfa, and included the following stages: (i) identification of a project and stakeholders, including a study on problems and solutions; (ii) conception of the project through the submission of a Project Concept Note to member countries;114 negotiation of the idea after countries delivered observations and suggestions to the ps/acto, including the interaction with financial institutions, the proposed operational details, and the definition of regional and national management mechanisms, and the official submission of the final version of the project to member countries; (iv) approval of the project through a written submission by member countries after 90 days of receiving the project; (v) execution of the project, (vi) monitoring by the management bodies and the acto decision-making bodies; (vii) evaluation that reflects upon the project’s implementation in the middle and end of execution, including a final project brief to circulate to member countries; (viii) disclosure of the results communicated and transmitted to stakeholders, both in printed and digital media.115 111 112 113 114 115

111 112 113 114 115

Id., at 21. Id., at 127 (citing Torrecuso, 2004, p. 94). acto, Strategic Agenda, supra note 4, at 56. The content of concept notes is governed by the Resolution res/x MRE-OTCA/7. acto, Strategic Agenda, supra note 4, at 56–57.

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Communication As a strategic aspect of the implementation of the agenda, the aeca referred to the communication, tools and measures to achieve the objectives. The communication, both at the international and external levels, also included the strategy to transform the institutional image of the acto, as part of the ­relaunching campaign. The plan incorporated, for example, the development of a website, constantly updated and endowed with tools to publicize and ­disseminate events, and an intranet to facilitate communication between countries. These would ensure a renewed relationship with the media, and with stakeholders as a whole.116 Institutional Structure to Execute the Agenda The institutional framework is deemed by the acto the spinal cord for implementation of the Strategic Agenda, made effective through shared responsibility for implementation between the decision-making bodies of the ­organization.117 It included the specific need to reinforce the personnel ­structure, including through temporary staff and consultants.118 Funding In order to implement the thematic agenda, four sources of funding were identified: (i) fixed annual contributions from the member countries or annual grants that can be used to finance specific activities in addition to enabling the functioning of the ps’s structure; (ii) extraordinary contributions geared to specific strategic activities; (iii) international cooperation contributions;119 and; (iv) contributions of national state-owned or private entities for activities to value the Amazonian culture, as approved by the member countries and in accordance with the project cycle guidelines.120 Monitoring and Evaluation The Agenda is subject to annual monitoring and review to ensure constant improvement and full implementation. A few criteria and indicators were defined to guide the monitoring process: (i) plan effectiveness and impacts, through an analysis of the number of projects and initiatives identified, started, and executed; (ii) thematic design and implementation strategy, including the 116 117 118 119 120

116 117 118 119 120

Id., at 59–60. Id., at 61. Id., at 61–62. Within the framework of the res/x MRE-OTCA/7 (Nov. 30, 2010). acto, Strategic Agenda, supra note 4, at 64.

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percentage of activities executed in each subtopic, topic, and coordinating office, and the proportion of resources applied by funding source to the activities executive; (iii) active participation of parties, including the percentage of focal points indicated to execute the agenda, percentage of participation of countries in regional events, and percentage of observance of regulatory consultation deadlines; and (iv) ps/acto operating capacity, including the rate of response by countries to information requests, number of project proposals sent to parties, and percentage of technical and financial execution of annual operating plans.121 9.3

Implementation of the Strategic Agenda

In the aftermath of the approval of the aeca, the acto focused on reorienting and prioritizing activities with the goal of putting it into practice. Two mmfas occurred during the period, one in 2011, and another in 2013. In addition, a meeting of the environmental ministers effectively shaped the environmental agenda.122 Nonetheless, despite a busy beginning of the period, the political motivation once again winded down after a couple of years. Indeed, despite some sporadic extraordinary acc gatherings, no high-level political meeting has been held since 2013.123 On the other hand, the ps supported a series of projects and activities throughout the period. This section analyzes the institutional development that derived from the implementation of the Strategic Agenda. It is divided into three sections: (i) institutional strengthening; (ii) financial security; and (iii) social agenda. The implementation of the environmental agenda will be analyzed in the following section. Institutional Strengthening At the xi mmfa, held in Manaus at the end of 2011, member countries reaffirmed their commitment to relaunching the organization, and adopted a set of decisions to strengthen action towards regional cooperation.124 Indeed, ministers looked at past and current initiatives with a view to fulfill the agenda, and specifically apply the revised role of the ps, as the legal personality of the

121 122 123 124

121 122 123 124

acto, Strategic Agenda, supra note 4, at 66. See Section 9.5. Updated until the end of 2016. Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 1.

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acto. By directly applying the Strategic Agenda with respect to the broadened responsibilities of the ps, the ministers highlighted some of the roles it performs. The Brazilian government noted the role of the acto as a “leader by example”, representing the vision included in the Strategic Agenda. The acto effectively led the region in the Tarapoto Process, which adopted unified indicators of sustainability that facilitates monitoring and a coordinated action between countries.125 It represents a good practice that can be replicated in other biomes, and fulfills the acto’s role as facilitator, establishing a space for dialogue that promotes common policies and projects, and as liaison, fostering consensus among member countries. Acknowledging successful efforts of particular countries, the ministers also highlighted the coordinating role of the acto. It noted the efforts in climate change mitigation from the government of Ecuador, through the Yasuní itt Initiative,126 and the efforts in eradicating illegal mining in the Madre de Diós region of Peru. These examples were used to show the need to develop projects in the member countries as part of the acto’s initiatives, in addition to regional efforts. These should lead to the recovery, reforestation and conservation of the affected areas.127 Through the El Coca Declaration, adopted by the xii mmfa, member countries recognized the goal of achieving sustainable development, the protection and conservation of nature with harmony and respect of nature rights, its ecosystem and the rights of peoples.128 The countries thus recognized the harmony of nature as essential for sustainable development, supporting the regional trend of recognized nature rights.129 The recognition was an example of a national policy influencing regional policy. Starting a practice that has been scarcely used previously, member countries started noting particular national projects and initiatives, which could 125 126 127 128 129

125 Discurso por ocasión de la xi Reunión de Cancilleres de los Países Miembros de la otca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Nov. 22, 2011), available at http://otca.info/portal/noticia-interna.php?id=328. See Sections 8.5 and 9.5. 126 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 14. See Chapter 12 for an analysis of this initiative. 127 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 26. 128 acto, xii Reunión de los Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazonica (mmfa), held in El Coca, Ecuador, on May 3, 2013, Declaración de El Coca, available at http://www.cancilleria.gov.co/sites/ default/files/Desarrollo-Fronterizo/486-declaracion_coca_esp.pdf. 129 For example, Ecuador and Bolivia. See res/xii mre-otca/01.

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be used as examples throughout the region. While the Strategic Agenda did not specifically address this role for the ps/acto, Chapters 10 and 12 show that it can be one of most important functions performed by the organization. In addition, it builds on other responsibilities of the ps, such as generator or regional information, arranger of regional support, facilitator, and promoter of actions to strengthen institutional capacity. In order to allow member countries and the ps/acto to properly implement activities, programs and projects, the xi mmfa adopted a resolution regulating the implementation of specific activities.130 The Procedure is applicable to specific activities identified and approved by member countries, and supplemented the guidelines of the Strategic Agenda. It specifically ensured that approved initiatives with proper funding did not take long to begin, thus attempting to solve one of the implementation challenges.131 Indeed, it was essential to boost measures to effectively adopt and implement projects of regional cooperation more dynamically. Although advances from several projects have been observed, efforts were still insufficient, and took to long to be implemented.132 As part of the initiatives to provide the acto with a more stable institutional support, the Brazilian government assigned to the organization a new property to build the headquarters.133 The need for a new headquarters had been deemed a priority, and represented a great achievement towards the long-term goals of the organization. In 2013, the acto celebrated 33 since the act entered into force, 15 years since the acto was created, and 11 years of the establishment of the Permanent Secretariat in Brasília.134 Member countries thus met at the xii mmfa.135 As part of the once again recognized need to promote institutional strengthening and ensure more cooperation, countries decided to coordinate joint policies 130 131 132 133 134 135

130 131 132 133

res/xi mre-otca/02 (Nov. 22, 2011). res/xi mre-otca/02, item 5 (Nov. 22, 2011). acto, xii mmfa, Declaración de El Coca, ¶23 (May 3, 2013). otca recibe terreno para la construcción de sede, Organizacion del Tratado de Cooperacion Amazonica (otca), (Apr. 23, 2013), available at http://otca.info/portal/noticia-interna .php?id=493. 134 Cancilleres de los Países Amazónicos se reúnen en Ecuador, Organizacion del Tratado de Cooperacion Amazonica, (Apr. 30, 2013) available at http://otca.info/portal/noticia-interna .php?id=495%20;%20http://otca.info/portal/noticia-interna.php?id=494. 135 acto, xii Reunión de los Ministros de Relaciones Exteriores de los Países Miembros de la Organización del Tratado de Cooperación Amazonica (mmfa), held in El Coca, Ecuador, on May 3, 2013, Declaración de El Coca, available at http://www.cancilleria.gov.co/sites/ default/files/Desarrollo-Fronterizo/486-declaracion_coca_esp.pdf.

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and strategies to protect the Amazonian territory, with the goal to attend to the challenges that affect the social and environmental surroundings of the region. This, however, shall be done with respect to sovereignty, International Law and the national laws of countries.136 Cooperation shall be especially boosted through scientific and technological cooperation, in order to strengthen capacities in defense of biodiversity and attend to illegal activities that affect the resources of the region.137 Finally, South-South cooperation was highlighted as an instrument to reduce asymmetries and for a regional and coordinated action, with a special emphasis on promoting and strengthening such initiatives, especially through technology transfer and capacity. In order to facilitate implementation of the agenda, the acto launched the “Strengthening of the Amazon Cooperation Treaty Organization (acto)” project.138 Known as the Amazon Regional Program, the project is implemented by giz on behalf of the governments of Germany and the Netherlands (dgisbmz). It responds to the need to strengthen the institutional capacities of the regional organization to meet the demands of the Amazon countries. Specifically, it provides the acto, its bodies, and the Amazon countries with four areas of assistance: (i) support to regional and thematic forums; (ii) implementation of regional projects for sustainable development; (iii) creation of a joint system for environmental information and human capacity development (dhc); and (iv) institutional strengthening and international networking c­ apacity. The program provides support in the regional and thematic forums, in the implementation of projects, the development of a system of environmental information and development of capacities, and institutional s­ trengthening of the acto. It also provided assistance to specific environmental projects, as will noted in the following section.139 Financial Security One of the main goals of the period was to address the insufficiency of contributions. The acto has traditionally been too dependent on external resources. These limit the autonomy of the organization, as well as its role in the region. The tendency during the fourth and fifth periods was to reverse this ­dependency, in order to allow for the implementation of projects ­without the 136 137 138 139

136 Declaración de El Coca, paragraph 4. 137 Declaración de El Coca, paragraph 5. 138 Programa Regional Amazonía, Organizacion del Tratado de Cooperacion Amazonica (otca), (Jul. 13, 2016), available at http://otca.pagina-oficial.com/projects/details/6. 139 Id. Specifically, the Monitoring of Deforestation, cites Electronic Emission of Permits, and Electronic Key to Identify Timber Species.

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need for international funds. This would allow more independence to pursue the projects that are more aligned with their interests, without any interference on the conditions or the results expected from third parties.140 It was the main avenue to turn a “donor-driven” acto into a “member-driven” organization. At the xi mmfa, the ministers approved additional measures of funding, namely: (i) voluntary contributions from member countries to fund specific activities and strategies; (ii) voluntary contributions of public or private c­ ompanies directed to the valorization of the Amazonian culture; and (iii) ­administration fees arising from the execution of international ­cooperation projects of external financial sources from one or more member countries.141 As a follow-up to the sources of funding identified, it was important to identify sources of national, regional and international funding. Building on existing national initiatives, the acto could be a tool to broaden best practices, making them available to other Amazonian countries. Within this context, the acc was instructed to search for new financing alternatives for the implementation of the Strategic Agenda.142 An ad hoc working group was created to develop a long-term financial strategy for the organization.143 The first meeting was held on July 15–16, 2013. Through consecutive meetings and a constant dialogue with member countries, a ­proposal was presented. Another meeting was scheduled for 2014, and member countries were required to conduct national consultations on a series of possibilities. In particular, Brazil’s initiative to seek the viability of the Brazilian Amazon Fund for financing projects to monitor forest cover in the Amazon region was noted. This type of initiative could be considered as an innovative mechanism and example to be followed by the organization.144 In the opening speech of the xi mmfa, the government of Brazil highlighted the country’s commitment towards innovative ways to promote sustainable management of the Amazon Basin. The Amazon Fund, managed by the Brazilian National Development Bank (bndes), consists of international voluntary contributions particularly

140 141 142 143 144

140 Rodolfo Ilário da Silva, supra note 2, at 141–142. 141 res/xi mre-otca/03, item 1 (Nov. 22, 2011). The resolution also adopted specific guidelines for those additional sources of funding. 142 acto, xii mmfa, Declaración de El Coca, ¶22 (May 3, 2013). 143 Reunión Extraordinaria del Consejo de Cooperación Amazónica, Acta Final (Bogotá, Feb. 14, 2014). Available at http://www.cnpp-otca.gob.pe/archivosFisicos/ACTA%20CCA%20 BOGOTA%202014_espF.pdf. 144 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 6.

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dedicated to deforestation efforts in the Brazilian Amazonia.145 The goal is to provide non-refundable financial support for projects for the prevention and the fight against deforestation, as well as for the conservation and sustainable use of forests in the Amazonian biome in the Brazil. When the Amazon Fund was created, in 2008, the country decided to direct up to 20 percent of the fund’s resources to monitor and control deforestation in other tropical countries. The provision allows the acto, or other Amazon countries specifically, to be a receiver of funds.146 The Monitoring Project,147 which developed and implemented participatory systems for monitoring forest cover in the Amazon and strengthen the regional platforms for coordination in forest management, was an ideal candidate to receive the funds.148 In addition to specifically making use of a percentage of the funds, the know-how of the bndes in the administration of the Amazon Fund may be available to acto and member states. The fund can stimulate a similar instrument adapted to the needs of all Amazonian countries. Based on the Brazilian model, the acto could develop a similar fund, with a broader scope, focused on other projects and areas mentioned in the Strategic Agenda.149 Within this context, the idea of creating a fund for regional cooperation, allowing for the acto itself to fund specific projects, became stronger. As a goal of the Strategic Agenda, it was important to identify sources of funding at the national, regional and international level.150 The Amazon Regional Program successfully assisted in this regard.151 The project is responsible for several specific achievements leading to the financial sustainability of the organization. The Foreign Ministers decided to increase their annual membership contributions from US$1.7 million in 2012 to US$2 million by 2014, and US$2.7 million by 2016. Indeed, the acto is on track for 145 146 147 148 149 150 151

145 See Chapter 12 for an in-depth analysis of the Brazilian Amazon Fund. 146 Discurso por ocasión de la xi Reunión de Cancilleres de los Países Miembros de la otca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Nov. 22, 2011), available at http://otca.info/portal/noticia-interna.php?id=328. 147 See an analysis of the Monitoring Project in Section 9.5. 148 Monitoreo de la Deforestación, Aprovechamiento Forestal y Cambios de uso del Suelo en el Bosque Panamazónico, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://www.otca.org.br/portal/admin/_upload/publicacoes/folder_monitoreo _esp.pdf. 149 Antonio José Ferreira Simões, supra note 3, at 42. 150 Rodolfo Ilário da Silva, supra note 2, at 142. (citing pires, 2011). 151 Programa Regional Amazonía, Organizacion del Tratado de Cooperacion Amazonica (otca), (Jul. 13, 2016), available at http://otca.pagina-oficial.com/projects/details/6.

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self-financing: from covering 12 percent of costs in 2010, to 70 percent in 2014. Finally, the portfolio of regional projects increased from US$2 million in 2010 to US$36 million in 2014.152 Social Agenda At the xi mmfa, member countries reinforced the need to bring the acto closer to the populations living in the Amazon region,153 and induce dialogue154 through regional seminars.155 Indeed, they expressed a will to consider the economic, social, and environmental aspects of sustainable development, and the Amazon people. In order to develop the dialogue regarding social inclusion, and poverty eradication, the acc was instructed to create an ad hoc working group to propose initiatives for social development in Amazonia. The recommendations of the working group were adopted at the xii mmfa, and the social inclusion agenda was developed during 2013.156 Member countries decided to strengthen the Amazonian identity, institutional activities in applying the treaty, and the active participation of Amazon people, in particular indigenous groups and other traditional communities.157 Analysis of Implementation In 2013, at the occasion of the 35th anniversary of the signing of the treaty, the Secretary General highlighted the accomplishments of the organization. With respect to the Strategic Agenda, Ambassador Robby Ramlakhan noted the short-term activities achieved with an implementation rate of 73 percent in two years. In order to have a closer proximity to civil society, national seminars were held throughout the region, focused on the future prospects of acto. The participation of the acto in regional and international activities gave rise to its recognition as a reference for South-South cooperation. At the international level, the acto cooperates with unep / gef, itto, idb the governments of the Netherlands and G ­ ermany. In the search for diversified cooperation, the acto recently won approval by the Government of Brazil through the bndes in the 152 153 154 155 156 157

152 Id. 153 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 3. 154 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 4. 155 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 5. 156 res/xii mre-otca/03 (May 3, 2013). 157 acto, xii mmfa, Declaración de El Coca, ¶1; ¶2 (May 3, 2013).

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Amazon Fund, a non-refundable grant to control deforestation in the Amazon region of each country, as well as other resources from Brazil for the development of social and water issues.158 According to an analysis developed by the government of Colombia in 2016, from 2010 to 2015, 84 percent of the short-term activities, and 72 percent of the medium-term activities contained in the Strategic Agenda were implemented.159 The vast majority of projects relate to the environmental agenda (35 percent), and emerging issues (climate change, energy, and regional development, 19 percent). Other projects involve health (13 percent), indigenous affairs (11 percent), knowledge management (8 percent), tourism (7 percent), institutional strengthening (6 percent), and infrastructure and transport (1 percent). Several environmental projects are still under development. These include the acto Biodiversity Program, with the support of the idb, the gef Program on Water Management, with funds from the gef, and the Monitoring of Forest Cover, with the support of the itto and inpe.160 Specific environmental programs related to forest conservation are highlighted in the following section. On the occasion of the 38th anniversary of the treaty, a new website was launched, along with an exhibition that showed the successful initiatives for the sustainable development of the region. The new vision of regional action for the period from 2016 to 2018 highlights the challenge of including and mainstreaming gender perspectives in regional development projects and incorporating the theme of “Sustainable Cities” into the organization’s work agenda.161 9.4

Environmental Agenda

The environmental agenda greatly developed during the fifth phase of cooperation, with the implementation of a series of projects that started in the p ­ revious

158 159 160 161

158 La otca esta celebrando los 35 años de la firma del Tratado de Cooperación Amazónica, Organizacion del Tratado de Cooperacion Amazonica (otca), (Jul. 3, 2013), available at http://otca.info/portal/noticia-interna.php?id=511. 159 Organización del Tratado de Cooperación Amazónica (otca), Cancilleria, Gobierno  de Columbia, available at http://www.cancilleria.gov.co/organizacion-del-tratado -cooperacion-amazonica-otca. 160 Antonio José Ferreira Simões, supra note 3, at 41. 161 otca mostra os projetos que marcam 38 anos do bloco socioambiental da Amazônia, Seguranca Alimentar e Nutricional, Presidencia de Republica, (2016), available at http:// www4.planalto.gov.br/consea/comunicacao/noticias/2016/otca-mostra-os-projetosque-marcam-38-anos-do-bloco-socioambiental-da-amazonia.

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period. Priority was given to the Monitoring Deforestation Project,  which ­entered a new phase with resources from the Brazilian bndes; the Tarapoto Process; and the gef Water Management Project. In addition, the Electronic cites Permit Issuance; the Regional Program for the ­Management, Monitoring and Control of Species of Wild Fauna and Flora Threatened by Trade; and, the implementation of the program “Institutional Strengthening of acto Member Countries in Integrated and Sustainable Management of F­ orests” were advanced. The implementation of projects followed the mandate of the Strategic Agenda. These advanced with a broad international ­cooperation, which was highlighted by the acto in a published report.162 The international voice of Amazon countries was promoted at several ­global gatherings, including the conventions and forum of cites, cbd, with an emphasis on the management of protected areas, and unfccc. Following the mandate of the agenda, the acto became increasingly concerned about the effects of climate change in the region, and advanced the agenda for social inclusion of Amazonian populations. Indeed, climate change effectively became a central issue at the acto, moving beyond the uncertainty of a regional position that characterized previous periods. The international voice was also promoted at meetings to discuss International Forest Law. Specifically, the xi mmfa commended the efforts and initiatives undertaken in the context of the International Year of Forests, ­highlighting the role of forests in maintaining the balance of the Amazonian ecosystem. They reaffirmed the relevance of the development of the initiatives of Monitoring of Forest cover, the system of electronic permits for species covered by the Convention of cites, prevention and control of forest fires and forest biodiversity.163 Amazon Regional Observatory At the xi mmfa, the ministers addressed the insufficiency of technology development and sharing. The idea for an Amazon Observatory, as a permanent forum for bringing together institutions and authorities was reintroduced at the xi mmfa. Specifically, it would emphasize on the study of Amazonian ­biodiversity.164 The observatory would be particularly relevant to intensify 162 163 164

162 OPORTUNIDADES DE COOPERACIÓN EN LA REGIÓN AMAZÓNICA, Organización del Tratado de Cooperación Amazónica – otca, available at http://otca.pagina-oficial.com/ assets/documents/20161220/7fed42067556415c6b11ab4fc6166a99.pdf. 163 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 18. 164 Manaus Compromise, approved in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. Item 9.

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cooperation actions in the areas of innovation, science and technology, and to develop an integrated information system and standard regional indicators to facilitate the research carried out by national and regional institutions. The xii mmfa established a Regional Amazon Observatory as a permanent forum for the study of the region, and a reference center for information on biodiversity, natural resources and socio-diversity.165 By addressing the need to protect traditional indigenous knowledge and develop mechanisms to enforce indigenous rights, they requested the acc to prepare a proposal for regional initiative. In order to avoid multiple efforts with the same purpose, they emphasized the need for coordination between acto and other regional groups.166 In addition, they established policies for sustainable management of Amazon forests, and promotion of access to technologies to investigate deforestation as a priority. Countries also recognized the achievements of the project entitled Integrated and Sustainable Management of transboundary Hydrological Resources of the Amazonas River, considering the variability of climate and climate change. At the end of June that same year, Member Countries met once again to enable the Red de Centros de Investigación, an open space for reflection and scientific investigation of the Amazon region, and regulate the Regional Amazonian Observatory. The Red includes investigation centers for all acto members, and facilitates the dialogue between local universities, institutes of ­superior education, investigation, and national bodies. The Amazon Regional Observatory, a platform of data management and knowledge on Amazonian biodiversity, is currently under implementation. The system will allow access to a database and information system from member countries, and can become an important tool for decision-makers and policy-makers.167

Conservation and Sustainable Use of Natural Resources: Forestry Agenda During the fifth phase, several projects advanced the forest sub-theme of the thematic agenda. The goal is to promote an integrated, integral and ­sustainable forest management for the management and conservation of forests with ­practical benefits for local populations. The main theme is to be developed

165 166 167

165 acto, xii mmfa, Declaración de El Coca, ¶9 (May 3, 2013). res/xii mre-otca/02. 166 Unisur, Andeand Community, Mercosur, caricom, and the Community of Latinamerican and Caribbean States. 167 Organização do Tratado de Cooperação Amazônica dialoga com instituições l­ocais, Amazônia (Sep. 15, 2016), available at http://amazonia.org.br/2016/09/organizacao-dotratado-de-cooperacao-amazonica-dialoga-com-instituicoes-locais/.

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along with forest authorities from Member Countries and has been implemented since 2011.168 The “Monitoring Deforestation, Exploitation and Land Use Change in the Amazon” project steadily developed throughout the period, with concrete results and benefits to the Amazon countries. Through technology sharing and South-South Cooperation, the project became a staple of regional cooperation within the acto’s framework. Indeed, it effectively transferred the technology developed by Brazil for monitoring deforestation in Amazonia to other Amazon countries, providing them with the necessary tools to gather data on rates and patters of forest loss. The Tarapoto Process continued to be implemented, with the publishing of a harmonized proposal of indicators and systematization of the national reports by the ps.169 Sustainable forest management was widely discussed during the period, with a series of regional meetings organized by the organization. Indeed, the acto promoted and strengthened communal forest management, through a process of exchange of experiences, and regional program of capacity building, and technical assistance.170 In addition, it strengthened participation in forest management, developing a regional study on the productivity of forest management in the extraction process, transport and processing of timber in the member countries.171 With the goal of fighting illegal timber exploitation172 according to the national legislations of each country, and preventing forest fires, regional ­meetings173 and exchange of experiences were organized. A regional ­agreement 168 169 170 171 172 173

168 Agenda of activities from the sub-theme forests. See Regional and Sub-Regional Inputs to UNFF11, (Nov. 13, 2014), available at http://www.un.org/esa/forests/wp-content/ uploads/2015/06/acto_es.pdf. 169 scea annual plan 2014 available at http://otca.info/portal/admin/_upload/plano_ trabalho/141-PLAN.TRABAJO.2014_esp.pdf. 170 Matriz aprobada en el Taller Regional de El Puyo para la gestión forestal comunitaria en los pm implementada. See Ecoamazonico, Se Inauguró El Taller Regional Preparatorio En El Puyo, De Los Países Miembros De La (otca) (Sep. 3, 2014), available at http://ecoamazonico.org/hoy-se-inauguro-el-taller-regional-preparatorio-en-el-puyo-de-los-paisesmiembros-de-la-otca/. 171 otca, supra note 169, at 1. 172 Supra note 163 at 17–18. 173 See Luis René Vallenas Vallenas, Taller Regional sobre Cooperación y Asistencia Mutua para el Combate de Incendios Forestales en la Amazonía, Instituto Nacional de Defensa Civil Peru, (2012), available at http://bvpad.indeci.gob.pe/doc/pdf/esp/doc2356/doc2356contenido.pdf.

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to combat transboundary forest fires was under negotiation between member countries, however, it has not been adopted yet.174 Finally, a Regional Workshop of Experts to Promote the Exchange of N ­ ational Experiences on Financing Mechanisms in the forestry sector was organized. In the same vein, the acto promoted the development and implementation of financial instruments for the implementation of pilot-­demonstration projects of forest management, protected areas and community forest management between 2009 and 2013; national, subnational and local levels through government institutions and civil society. In total they applied approximately 1.5 million Euros, through grants from bmz and dgis in 6 pilot-demonstration projects.175 The Amazon Regional Program also included initiatives in forest management, with the goal of assisting countries in development an ecologically responsible management of forests, and conservation of biodiversity. The acto intends to develop technical capacity for the strengthening and implementation of models of forest management and best practices.176 The majority of projects implemented in the region focused on developing the groundwork of data about the Amazon region. For example, the geo Amazonia project started to be developed during the fourth phase, and was finalized in 2009. It consists of a thorough evaluation of the state of the environment in the Amazon region, based on unep’s Global Environmental Outlook methodology. The evaluation process was a participative exercise that included the scientific community, as well as the stakeholders responsible for the policies in Amazonia, and the local communities. The document provided governments and other stakeholders with an integral vision on the environmental challenges in the region, with recommendations on a vision for the future of Amazonia.177 In terms of information, one of the main functions of acto is to be a platform for dialogue and exchange of information between member countries in this regard the agenda of activities of the sub-theme Forests includes actions identified by the forest authorities with a common interest to exchange

174 175 176 177

174 otca, supra note 169, at 2. According to the mandate established by the mmfa through the res/xi mre-otca/04. As of 2014, the agreement was still under negotiation. See http:// slideplayer.es/slide/10999882/. See also supra note 163 at 15–16. 175 See Opportunities for Cooperation: supra note 163 at 11–12. 176 Proyectos y Programas, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://otca.info/portal/projetos-programas.php?p=agd. See also Id. at 13–14. 177 GEOAMAZONIA http://www.pnuma.org/deat1/pdf/geoamazonia_spanish_FINAL.pdf.

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information. One of the mechanisms is the regional meeting of the highest forest authorities every two years to assess progress in the ­implementation of the agenda of forests and exchange information on progress and challenges in implementing their national forest programs. Specifically, at the financial and economic levels, it is challenging to develop suitable methodologies to measure real contribution of the forest sector to the economy of the country and its corresponding documentation in forest statistics. At the same time, with regard to information, it is necessary to create mechanisms and tools to register socio-economic benefits of forests, with a focus on people and communities that depend on them when it comes to food, housing, and energy. Monitoring of Deforestation As seen in the previous chapter, the acto started supporting efforts to establish a real-time forest cover monitoring in Amazonia during Phase 4. The “Monitoring Deforestation, Exploitation and Land Use Change in the Amazon”178 project was proposed by the acto, and approved by the itto in 2008.179 Among the mandates of the revised acto, the 2009 Manaus Declaration highlighted the need to identify actions to reduce and monitor deforestation.180 In 2010, an agreement between the itto, Brazil, and the acto was signed to implement the project.181 A Cooperation Agreement signed by the acto and the Brazilian National Space Research Institute (inpe) envisioned the training of the TerraAmazon System used by Brazil to monitor the Brazilian Amazon region.182 The agreement allowed for the training of the technical experts of the M ­ ember 178 179 180 181 182

178 red-pd 029/09 Rev.1 (F). otca, Monitoreo de la Deforestación Aprovechamiento ­Forestal y Cambios de uso del Suelo en el Bosque Panamónico, available at http://www.otca.org .br/portal/admin/_upload/publicacoes/folder_monitoreo_esp.pdf. 179 acto, Experiencias En La Tematica: “Bosques En Un Ambiente De Cambios” Y “Medios De Implementación Para El Manejo Forestal Sostenible”, presented at the unff8, 3 (­Apr.–May 2009), http://www.un.org/esa/forests/pdf/national_reports/unff8/ACTO.pdf. 44th Session of the itto (2008). The ps noted (otca-sp/522/2009 September 04, 2009) that the original version of the Project was approved by the International Tropical Timber Organization (itto) during its 36th Session, but failed to receive the required financial resources. 180 Declaration of Heads of State on the acto, ¶3 (Nov. 26, 2009). 181 Acuerdo OIMT-Brasil-OTCA para implementar el Proyecto Monitoreo de la Deforestación, Aprovechamiento Forestal y Cambios en el Uso del Suelo en el Bosque Panamazónico – red pd 029/09 Rev. 1F. 182 acto, Monitoreo de la Cobertura Forestal en la Región Amazónica 2 (acto, Nov. 2014), available at http://otca.info/portal/admin/_upload/publicacoes/446-Monitoreo.pdf.

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Countries in monitoring the region’s forest cover, so that countries have the conditions to implement the systems through the transfer of technology ­offered by inpe. At the xi mmfa, member countries adopted a series of decisions to strengthen cooperation, including the Monitoring Project.183 The project received financial assistance from Germany (bmz/giz), the ­Netherlands (dgis), and the itto.184 It was also partially funded by the Brazilian Amazon Fund.185 The initiative develops and implements participatory systems of forest monitoring and strengthens the platform for regional coordination. It reproduces the methodology of satellite monitoring that has been successfully used by Brazil for the past years. Through several technical cooperation agreements, inpe shares knowledge and provides technical capacity to replicate the methodology in the remaining Amazon countries.186 In addition to placing monitoring rooms in each country, providing the countries with the technical skills to gather information to combat deforestation, the initiative draws up regional deforestation maps. It is one of the acto’s key strategies to combat climate change regionally.187 The project aims to support the member countries in improving governance on issues related to deforestation and land use in the Amazon region, providing in real time information on the extent and quality of forest cover.188 Sharing and gathering regional forest data facilitates the adoption of coordinated policies to fight deforestation, and allows the acto to be better prepared in the international discussions on climate change and sustainable development.189 Within this context, the Brazilian government said the 183 184 185 186 187 188 189

183 xi Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 22, 2011). 184 Cooperación Alemana para el Desarrollo (bmz/giz), de la Cooperación para el Desarrollo de los Países Bajos (dgis) y de la Organización Internacional de las Maderas Tropicales (oimt). 185 http://g1.globo.com/natureza/noticia/2013/05/bndes-aprova-verba-para-monitorar-amazonia-em-paises-vizinhos.html. 186 acto, supra note 182, at 4. 187 otca, El Cambio Climático en la Región Amazónica (otca, 2014), p. 17, available at http://www.otca.info/portal/admin/_upload/publicacoes/531-libro.cambio.climatico_ esp.pdf. 188 Coordinacion de Medio Ambiente, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://otca.info/portal/coordenacao-interna.php?p=otca&coord=2. 189 Discurso por ocasión de la xi Reunión de Cancilleres de los Países Miembros de la otca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Nov. 11, 2011), available at http://otca.info/portal/noticia-interna.php?id=328.

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inpe/acto project was one of the organization’s greatest contributions to global ­environmental governance.190 It oversees 8.2 million square kilometers of forests, providing data on the regional natural processes. However, as the act does not demarcate the surface area of Amazonia, each country was required to define the surface to be monitored, which will be the object of work of the national project executing authority.191 Implementation began in 2011.192 The first phase was implemented between 2011 and 2014. During this period, the project achieved the following concrete results: (i) support to national institutions; (ii) the development of national forest cover monitoring plans in the member countries of acto; (iii) installation, equipment and initiation of nationals observation rooms; (iv) the recruitment and training of technical teams selected by the countries; and (v) the development of regional maps of deforestation in Amazon.193 The project promoted the institutional infrastructure at the national and regional levels, with national coordination units in each participating country. Each country has a focal point, as well as coordinating agency.194 Countries formulated national monitoring plans or updated similar mechanisms of national planning.195 Between 2012 and 2014, six courses of “Training In Tropical 190 191 192 193 194 195

190 Id. 191 otca, Minutes of the Meeting of the Forestry Authorities of acto´s member countries (Buenos Aires, Oct. 20, 2009). 192 acto, supra note 182, at 2. 193 Id., at 2. 194 Focal Points: Viceministerio de Medio Ambiente, Biodiversidad, Cambios Climáticos y de Gestión Forestal (Bolivia); Ministério das Relações Exteriores (das ii América do Sul) (Brasil); Dirección de Ecosistemas del Ministerio de Ambiente y Desarrollo Sostenible (Colombia); Ministerio de Relaciones Exteriores (Ecuador); Guyana Forestry Commission (gfc) (Guyana); Ministerio del Ambiente (Minam) y Ministerio de Agricultura (Minagri) (Perú); Foundation for the Forest Management and Production Control (sbb) (Suriname); Ministerio del Poder Popular de Ecosocialismo, Hábitat y Vivienda y Ministerio del Poder Popular para RR.EE. (Venezuela). Coordinating Agencies: Dirección General de Bosques; y Viceministerio de Medio Ambiente, Biodiversidad, Cambios Climáticos y de Gestión Forestal (Bolivia); Departamento de Políticas para Controle do Desmatamento do Ministério do Meio Ambiente (mma Brasil); Instituto Amazónico de Investigaciones Científicas (sinchi) (Colombia); Dirección Nacional Forestal del Ministerio del Ambiente (mae) (Ecuador); Guyana Forestry Commission (gfc) (Guyana); Programa Nacional de Conservación de Bosques (Minam), y Dirección General Forestal (Minagri) (Perú); Foundation for the Forest Management and Production Control (sbb) (Suriname); Oficina de Bosques del Ministerio del Poder Popular de Ecosocialismo, Hábitat y Vivienda (Venezuela). Id., at 3. 195 Id., at 3.

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Forest Monitoring using The Amazon Terra System / prodes Project” were given, training 150 technicians.196 Between 2012 and 2013, seven Observation Rooms were installed in the Amazon countries.197 These are in charge of monitoring deforestation at the ­national level, and represent the main achievement of the project. In the last phase, the acto donated videoconference systems to the observation rooms.198 Through the information gathered in the Observation Rooms, a regional map of deforestation is developed.199 Four regional maps have already been published: covering deforestation in the 2000–2010 period, covering the 2010–2013 period,200 covering the 2013–2014 period,201 covering the 2014–2015 ­period.202 In addition, several regional meetings were organized to discuss the results of the monitoring efforts, along with seminars related to specific themes, such as forest fires.203 The second phase of the project is expected to end in 2017. The Monitoring Project publishes periodic reports to communicate the advances.204 196 197 198 199 200 201 202 203 204

196 Id., at 5. 197 Dirección Forestal del mmayA (La Paz, Bolivia); Instituto de Investigaciones de la Amazonia Colombiana – sinchi (Bogotá, Colombia); Ministerio del Ambiente – mae (Quito, Ecuador); Guyana Forestry Commission – gfc (Georgetown, Guyana); Universidad Nacional Agraria La Molina – unalm (Lima, Perú); Foundation for the Forest Management and Production Control – sbb (Paramaribo, Suriname); Dirección General de la Oficina de Bosques – Ministerio de Ecosocialismo (Caracas, Venezuela). Id., at 4. 198 Supra note 159. 199 The first map covered the 2000–2010 period, the second the 2000–2013 period. 200 La cooperación regional en el monitoreo de la deforestación del bosque amazónico, Ministry of Foreign Affairs of the Netherlands, La Giz, (May 2015), available at https://www.giz.de/ en/downloads/Factsheet_Mapa_Regional.pdf.; See also Mapa Regional de la Deforestación en la Región Amazónica es presentado en la fnub11, Organizacion del Tratado de Cooperacion Amazonica (otca), (May 11, 2015), available at http://otca.info/portal/noticia-interna.php?id=665. 201 Proyecto Monitoreo entregará tercer Mapa Regional de la Deforestación Amazónica 2013– 2014, Organizacion del Tratado de Cooperacion Amazonica (otca), (Jul. 5, 2016) available at http://otca.pagina-oficial.com/news/details/21. 202 Id. 203 Meeting (Oct. 22, 2013): Reunión del Comité de Dirección del Proyecto de Monitoreo empieza en Brasilia, Organizacion del Tratado de Cooperacion Amazonica (otca), (Oct. 22, 2013), available at http://otca.info/portal/noticia-interna.php?id=551. Also Third meeting (Oct. 6–10, 2014): iii Encuentro Regional de Salas de Observación de los Paises Miembros de la otca, Organizacion del Tratado de Cooperacion Amazonica (otca), (Oct. 17, 2014), available at http://otca.info/portal/noticia-interna.php?id=623. See also http://otca.paginaoficial.com/search/?tag=monitoreo. 204 See http://otca.pagina-oficial.com/news/details/24 for a list of all of the reports published.

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The project deserves praise as it embraces several unfccc ideals. It enhances regional dialogue and information sharing, and promotes technology transfer using the system developed by the Brazilian government and replicating it in neighboring countries. It also implements differentiation and ­c bdr-rc, as Brazil acts as a “developed country” in terms of becoming a regional leader. The regional scheme functioned as a successful avenue for cooperation and a unique variant of ssc.205 Acre-Ucayali Pilot Project The Acre-Ucayali Pilot Project, specifically called “Strengthening of the borderline integration between the regions of Acre (Brazil) – Ucayali (Peru)” was ­implemented between 2009 and 2012, and sought to strengthen the governmental and non-governmental initiatives and capacities in the border between the state of Acre (Brazil) and the department of Ucayali (Peru). The project contributed to the shared management of border areas, of difficult access and high ecological interest. It promoted coordinated action for monitoring and environmental control, facilitated the local institutional coordination, developed actions of sustainable use of the non-timber forest resources by the indigenous communities, and other local communities, thus generating inputs for the sub regional dialogue at the formal interaction in the process of dialogue between Peru and Brazil.206

Conservation and Sustainable Use of Natural Resources: Protected Areas While the agendas on forests and climate change have developed more extensively, the agenda on protected areas is still subpar. Several meetings were ­organized to discuss the agenda, but few initiatives moved forward.207 Indeed, several initiatives were promoted outside of the scope of the acto,208 as well 205 206 207 208

205 See Maria Antonia Tigre, Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader, 5 Transnational Environmental Law 421 (Cambridge University Press 2016). 206 Regional and Sub-Regional Inputs to unff10, Amazon Cooperation Treaty Organization, (Sept. 30, 2012), p. 5, available at http://www.un.org/esa/forests/wp-content/uploads/2014/11/ACTO.pdf. 207 Carolina Salles, Seminário debaterá os sistemas de áreas protegidas do Brasil e 7 países, Jusbrasil, (2014), available at http://carollinasalle.jusbrasil.com.br/noticias/111915574/ seminario-debatera-os-sistemas-de-areas-protegidas-do-brasil-e-7-paises?ref=topic_feed. 208 Including the Redparques Declaration on Protected Areas and Climate Change at COP21: 18 Latin American countries, including all Amazon countries. See http://www.sernanp.gob .pe/documents/10181/106213/declaracion.pdf/5e414114-d8da-47c6-b0c4-dec8022d9b10.

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as in Amazon countries individually,209 without their cooperation. These include a wide range of activities and programs developed within the framework of redparques,210 and wwf,211 and the Integration of Protected Areas of the Amazonian Biome (iapa) – Amazonian Vision project.212 Indeed, the work developed by REDPARQUES is ultimately filling the gap in regional cooperation in protected areas. 209 210 211 212

209 For example, Peru recently launched the Observatorio de Áreas Protegidas y Cambio Climático de la Amazonia 2016, tool to consolidade and organize information on management and decision-taking regarding protected areas in Amazonia. Developed through Redparques, a regional network of technical cooperation of protected areas. Project: Visíon Amazónica: áreas Protegidas, Soluciones Naturales al Cambio Climático (snacc), wwf. http://www.infoandina.org/es/content/lanzan-observatorio-amaz%C3%B3nicode-%C3%A1reas-protegidas-y-cambio-clim%C3%A1tico. 210 See e.g., 2010: Developments from REDPARQUES: Avances en el Desarrollo del Programa de Trabajo sobre Áreas Protegidas Región: Bioma Amazónico, Redparques, Internacional de la Diversidad Biologica, (2010) available at http://redparques.com/wp-content/uploads/2015/09/redparquesespanol.pdf. See REGIONAL REPORT IMPLEMENTATION OF THE PROGRAM OF WORK ON PROTECTED AREAS 2011–2015 AMAZON BIOME REGION, Redparques, Amazon Vision, Convention on Biological Diversity Thirteenth Conference of the Parties, (Dec. 2016), available at http://redparques.com/wpcontent/uploads/2016/12/Implementation-of-the-PoWPA-2011-2015-Amazon-Biome.pdf and REDPARQUES 2016 Report on Protected Areas in Amazonia: http://redparques.com/ wp-content/uploads/2016/12/Libro-Naciones-Unidas.pdf. See also Redparques homepage at http://redparques.com/?lang=en; Proyecto iapa, PROJECT: Intergation of Amazon Protected Areas – Amazon Vision, (Apr. 19, 2016) available at http://capacity4dev.ec.europa. eu/amazon-vision/minisite/about-project-5. 211 See Protected Areas and Climate Change, wwf Global, (2017), available at http://wwf .panda.org/what_we_do/where_we_work/amazon/vision_amazon/living_amazon_ initiative222/protected_areas_and_indigenous_territories/protected_areas_and _climate_change/. 212 IUCN homepage (2017), at https://www.iucn.org/es/news/paisaje-sur-bosques-­aprovech ados-y-bien-conservados / https://www.iucn.org/sites/dev/files/content/documents/ nuevo_formato_iapa_final.pdf. Integración de las Áreas Protegidas del Bioma Amazónico – iapa, available at http:// redparques.com/iapa-vision-amazonica/. The iapa – Amazonian Vision project seeks to generate a network around the protected area systems located in the Amazon region. It is funded by the European Union, and was born in support of the regional initiative Vision for the conservation of the biodiversity of the Amazonian biome based on ecosystems, proposed by the Latin American Network of technical cooperation in national parks, other protected areas, wild fauna and flora – REDPARQUES, in 2008. It aims to contribute to increased ecosystem resilience to the effects of climate change by maintaining the provision of goods and services that benefit biodiversity, communities and local economies. Under the coordination of the Food and Agriculture Organization of

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While a Biodiversity Regional Program was discussed, it was never finalized or implemented.213 The proposal of the Regional Plan of Action for the Amazon Biodiversity and its program of protected areas had the goal of contributing  to  the development of a common view, and the management of protected  areas at the regional level, with an emphasis in the protected areas in the borderline zones and conservation corridors including more than one country. The approved Program of Protected Areas sought to develop coordination mechanisms and technical and financial instruments to complement the management of the National Systems of Protected Areas and to promote the joint action within a regional focus for the conservation of biodiversity. When implemented, it will allow to complement the national efforts in the area of management of protected Amazon areas as instruments for the conservation 213

the United Nations (fao), the project will be implemented jointly with the World Wide Fund for Nature (wwf), the International Union for Conservation of Nature (iucn) and the United Nations Environment Program (unep). A Plan of Action (2010–2020) was produced to guide its implementation and was politically supported by the Ministers of the Environment of the Amazon countries and the acto at cop 10 of the cbd in Nagoya, when the Regional Report and Plan of Action was presented. A few months after the cbd cop 10, the Action Plan was updated by pa authorities in the Amazon Countries to ensure better alignment with the Powpa – related decisions taken in Nagoya and to promote the implementation of the Aichi Targets in the region. The progress made in its implementation was presented by the Colombian Minister of Environment and Sustainable Development, on the occasion of the official event held by the acto at the last cbd cop 11 in Hyderabad. See also Sergio Garrido, Vision Amazónica iapa, (Apr. 1, 2015), available at http://www.iucn.org/es/sobre/union/secretaria/oficinas/sudamerica/sur_trabajo/sur _equidad/?20133/vision-amazonica; 8 países se unen para conservar las áreas protegidas de la Amazonía, Organizacion de las Naciones Unidas para la Alimentacion y la Agricultura, (Oct. 23, 2014) available at http://www.fao.org/americas/noticias/ver/es/c/262555/; TALLER CONSTRUCCIÓN DE UNA VISIÓN DE CONSERVACIÓN REGIONAL PARA LA AMAZONIA, (Aug. 28–30, 2008), available at http://redparques.com/wp-content/uploads/ 2015/09/MemoriasTallerAmazonaRedparques2008-PDF.pdf; Jose Antonio Gomez, Protect what protects us, Amazon vision, (2016), available at http://redparques.com/wp-content/ uploads/2016/12/Policy-brief-PoWPA-2011-2015.pdf; Support from iucn: Apoyo al desarrollo de una visión ecológica S para el bioma amazónico – Resolución 4073, (2008), available at http://redparques.com/wp-content/ uploads/2016/09/4073ESP.pdf. 213 Nestor Ortiz, Lineamientos Estratégicos del Plan de Acción Regional para la Biodiversidad Amazónica 2008–2013, Organización del Tratado de Cooperación Amazónica (otca), available at https://www.cbd.int/doc/meetings/nbsap/nbsapcbw-sam-01/other/nbsapcbw-sam-01-otca-es.pdf.

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of biodiversity, the sustainable development and social inclusion, and will facilitate the construction of common positions at international scenarios.214 In 2015, a meeting of directors and authorities on protected areas was organized by the acto.215 The meeting had the purpose of developing the sub-theme of protected areas within the context of the aeca, articulating a common position for the cbd’s COP13, and identifying possible cooperation actions within the context of the Work Program on Protected areas of the Protected Areas Convention, the Aichi Targets of Biodiversity, and the RedParques – Amazon Vision. Priority areas were identified, namely a diagnostic of the current state of protected areas in the region,216 capacity building,217 and financial sustainability.218 Another suggestion was to develop a portfolio of opportunities of cooperation, specifically including successful regional experiences in management and conservation of protected areas, especially in protected areas. The Trinational Program was highlighted as a successful example. Trinational Program Encompassing the area surrounding the Putumayo River, in a territory shared between Colombia, Ecuador, and Peru, an area with extraordinary biological and cultural biodiversity and a strategic relevance to countries was individually protected by each of them. Starting in 1979, countries established 5 protected areas, showing a commitment towards conservation of nature and the traditional cultures development in the region.219 In 2005, the idea of a joint collaboration between countries emerged. The first decision for financial support came from a collaboration between the acto, giz, can and oapn 214 215 216 217 218 219

214 Id. 215 Held in Bogotá, Colombia, between Oct. 13–14, 2015. See http://www.parquesnacionales. gov.co/portal/wp-content/uploads/2013/08/OTCA-Acta-Evento-%C3%81reas-Protegidas. pdf. 216 Id., item 8. Including threats and economic pressures, governance models, monitoring systems, conservation priorities, representativity, socioeconomic value and ecosystem services, shared benefits, best practices and transboundary conservation. A development model shall be identified. 217 Id., item 9. Using the cbd and wcpa platforms to include modules with an Amazon emphasis were suggested. 218 Id., item 7. 219 otca, can, giz, eu, and wwf, Diversidad biológica y cultural del Corredor Trinacional de áreas protegidas La Paya – Cuyabeno – Güeppí Sekime. Colombia – Ecuador – Perú (2016), available at http://redparques.com/wp-content/uploads/2016/09/CORREDORTRINACIONAL-NOV-Final-1.pdf.

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(Spain), boosting the idea of an agreement between the environmental funds of the three countries.220 The idea was to develop a model for joint management of protected areas in bordering areas, that could be replicated to other regions in Amazonia, and become part of the Protected Areas Program of the acto.221 The Trinational Program for Conservation and Sustainable Development of the Protected Areas Corridor pnn La Paya – zr Güeppí – rpf Cuyabeno was formalized in 2011. The program developed a new model for regional conservation through a joint and coordinated management of bordering areas. It promoted increased capacity and strengthened the stakeholders and agencies that act within the region, through the support of the European Union, wwf, can, the acto, and giz. According to the acto’s website, it is the only program currently under development within the sub-theme of protected areas.222 Climate Change Agenda As previously noted, the Strategic Agenda officialy integrated climate change in the scope of the acto’s activities. The role of climate change in the region was reaffirmed at the xii mmfa, as well as the responsibility of countries in the unfccc, according to the cbdr principle. Indeed, member countries recognized the initiatives in mitigation and adaptation of climate change voluntarily adopted throughout the region, especially those developed by Ecuador.223 In order to advance the climate change agenda, the acto held the i Meeting of Climate Change Experts of Amazonia in 2013.224 The event had the purpose of sharing national experiences, revising common priorities for adaptation and the sustainable management of forests, and develop an agenda of priority regional actions. As an essential theme in environmental protection, climate change slowly became an important aspect of regional cooperation. While the regional actions are still incipient, the organization did promote a few efforts addressing some of the short-term goals of the agenda. The Monitoring Project is as much a climate projects, as it is a forest project. Since emissions from deforestation

220 221 222 223 224

220 221 222 223

Id., at 50. Id., at 54; 70. Supra note 188. acto, xii mmfa, Declaración de El Coca, ¶6 (May 3, 2013). res/xii mre-otca/01 (May 3, 2013). 224 Expertos dos Países Miembros de la otca discuten el cambio climático en la región amazónica, Organizacion del Tratado de Cooperacion Amazonica (otca), (Sept. 23, 2013), available at http://otca.info/portal/noticia-interna.php?id=535. i Meeting of Climate Change experts (Sep. 24, 2013) in Lima, Peru.

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represent a high percentage of total emissions from Amazon countries, monitoring deforestation rates is an essential activity to the climate agenda. Nonetheless, other actions were advanced throughout the period. One of the main objectives of the Strategic Agenda was to address gaps in the regional knowledge, and implement projects in areas in which Amazon countries most needed assistance with. While several research programs focused on the ecological, hydrological, anthropological, biological and geographical characteristics of Amazonia, few studies considered its basin as a single hydrological system. As a connected watershed, it was essential to propose a sustainable and integrated water and land resources management through an intergovernmental strategy.225 As a response to this gap, the acto developed the Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project, also called the gef Amazon Project. As a successful example of a transboundary project that combines research and strategic planning, the project shows some of the hurdles faced by the acto. As explained in the previous chapter, it took nine years to get the project off the ground. In 2009, the full project was approved, with funding from member countries and additional donors, including a substancial contribution from the gef. A contract between the ps/acto and unep, as the implementing agency, was signed in 2010.226 The gef Amazon Basin Project was launched in succession.227 The gef Project seeks to create a shared vision for water resources and land use among the member states, thus inducing the common responsibility for the sustainable management of the basin as a whole.228 As one of the main products, a shared vision is designed to understand common problems and ­define future development scenarios.229 The shared vision shall be ­developed 225 226 227 228 229

225 acto and Proyecto gef Amazonas, Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project, 2, available at http://www.mtnforum.org/sites/default/files/ news/files/gef.amazonas.final_ingles_3_0.pdf (last visited Jan. 6, 2017). 226 acto, Proyecto gef Amazonas, Estructure del Proyecto, available at http://otca.info/gef/ sobreoprojeto (last visited Jan. 6, 2017). 227 acto, Proyecto gef Amazonas, Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project, available at http://www.mtnforum.org/sites/default/files/news/ files/gef.amazonas.final_ingles_3_0.pdf (last visited Apr. 2, 2016). 228 proyecto gefamazonas, Recursos Hidricos y Cambio Climatico, (2017) available at http://gefamazonas.otca.info/. 229 The Project: Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin considering Climate variability and Change, Amazon ­Cooperation

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­according to the Integrated Water Resources Management (iwrm) principles.230 In order to achieve this goal, the Project is structured according to three thematic components, namely: (i) understanding the Amazonian society, by documenting the needs and goals of key regional stakeholders and national institutions, as well as the legal framework of countries;231 (ii) comprehending the natural resource base, through scientific results and a Transboundary Diagnostic Analysis (tda); and (iii) developing strategies that address unsustainable practices of management of water resources, specifically facing the need to adapt to climate change. The last aspect is done through pilot projects, making use of the iwrm principles.232 The Project’s main products are: (i) a shared vision of the Amazon basin; (ii) a Transboundary Diagnostic Analysis (tda) based on the definition of priority transboundary problems referring to Amazon basin water resources and an analysis of climate vulnerability; and (iii) a Strategic Action Programme (sap) agreed upon by acto Member Countries.233 Indeed, the sap aims to ­strengthen the institutional framework for planning and executing s­ trategic activities to protect and manage water resources threatened by climate 230 231 232 233

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Treaty Organization (ACTO), available at http://otca.info/gef/include/pdf/in/ING_RESU MO-FINAL_lamina12_-_revisao2_(1)_(3).pdf. Indeed, the expected results were (i) the construction of the shared vision for the Amazon River Basin; (ii) the analytical cross-border diagnosis of the Basin; (iii) research on aquatic ecosystems, groundwater and sedimentation in transboundary areas; (iv) atlas of hydro-climatic vulnerability of the Amazon Basin; (v) pilot projects in integrated management of water resources; (vi) demonstration projects under special priorities for adaptation and response to climate change; (vii) the integrated information system; (viii) communication, education and financing strategies; (ix) multiple actors public participation plan; (x) strategic actions program. See Manejo integrado y sostenible de los Recursos Hídricos Transfronterizos de la Cuenca del Río Amazonas, considerando la variabilidad climática y el cambio climático, available at http://www .otca.info/portal/admin/_upload/publicacoes/242-GEF-Amazonas_Espanhol.pdf. See iwrm Principles, Global Water Partnership, (2012), available at http://www.gwp.org/ en/The-Challenge/What-is-iwrm/IWRM-Principles/. The iwrm strategies are based on the Dublin Principles presented at the 1992 unced. Enrique Rios Isern, Producto 1:Informe de Actividades de Consultoría en Base de Datos y Sistematización de la Información Para el proyecto Manejo integrado y sostenible de los recursos hídricos transfronterizos en la cuenca del Amazonas, PROYECTO gefamazonas Recursos Hidricos y Cambio Climatico, (Mar. 24, 2015), available at http://otca.info/gef/ uploads/documento/afe2c-ATIVID.III.3.1_ENRIQUE_RIOS_RELATORIO_1.pdf. Supra note 239. Id. Indeed, the expected results were (i) the construction of the shared vision for the Amazon River Basin; (ii) the analytical cross-border diagnosis of the Basin; (iii) research on aquatic ecosystems, groundwater and sedimentation in transboundary areas; (iv) atlas of hydro-climatic vulnerability of the Amazon Basin; (v) pilot projects in integrated management of water resources; (vi) demonstration projects under special priorities for

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change.234 In addition, it harmonizes the member countries’ expectations for sustainable economic development in the context of increasing extreme climate events. Broad participation of regional stakeholders ensured a favorable scenario for implementation.235 The first two phases focused on understanding the Amazon society and the natural resources through technical research, projection of scenarios, and study of institutional and legal standards.236 In the first stage, and furthering South-South cooperation, the acto negotiated a contract with the Brazilian National Water Agency, which had accumulated knowledge and experience in water management. As a result, many technicians from the other member countries were trained in Brazil.237 The project mapped and analyzed the institutional framework for water resources management in the Amazon Basin at the national and regional level,238 as well as the acto’s potential role in coordinating actions for international water resource management.239 Legal experts also prepared an inventory of national legislation related to water resources management, biodiversity and climate change, identifying legal spaces and  opportunities for regional cooperation. The Hydroclimatic Vulnerability Atlas240 and the Assessment of the Sediment Basin Aquifers in the 234 235 236 237 238 239 240

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adaptation and response to climate change; (vii) the integrated information system; (viii) communication, education and financing strategies; (ix) multiple actors public participation plan; (x) strategic actions program. See supra note 229. Supra note 229. Id. See Mejorar el conocimiento de los ecosistemas acuáticos amazónicos y la Gestión de los ecosistemas acuáticos en las áreas críticas, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://otca.info/gef/include/pdf/es/FNL_MEJORAR_lamina9_ revisao2-1.pdf. See also supra note 231. GEF, Global Environment Facility, GEF Amazon Project – Water Resources and Climate Change, available at http://www.thegef.org/gef/news/gef-amazon-project-water-resourc es-and-climate-change (last visited Apr. 2, 2014). Coordinación institucional en la cuenca Amazónica, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://otca.info/gef/include/pdf/es/ESP_INTEGRACION_lamina6_-_revisao6.pdf. PROYECTO MANEJO INTEGRADO Y SOSTENIBLE DE LOS RECURSOS HÍDRICOS TRANSFRONTERIZOS EN LA CUENCA DEL RÍO AMAZONAS CONSIDERANDO LA VARIABILIDAD Y EL CAMBIO CLIMÁTICO OTCA/GEF/PNUMA, Bolivia, (Aug. 13, 2012), available at http://otca.info/gef/uploads/documento/7da85-ATIVID.I.2.1_YERKO_MONTERO_RELAT--RIO_4.pdf. Atlas de Vulnerabilidad Hidroclimática de la cuenca Amazónica, Organizacion del Tratado de Cooperacion Amazonica (otca), available at http://otca.info/gef/include/pdf/es/ FNL_ATLAS_lamina4_revisao6.pdf.

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Amazon  ­Hydrogeological Province in Brazil and Pilot Cities are also being developed.241 A more practically oriented research included field excursions in critical areas, which are developing scientific knowledge to provide input for decisionmaking. In addition, the effects of sea level rise at Marajó Island was studied in order to develop ready and concrete proposals to support local governments in their adaptation policies, including relocation of affected communities.242 The most illustrative cooperative measure within gef’s Amazon Project is the Dios-Acre-Pando undertaking at the Purús River, which is shared by Bolivia, Brazil and Peru, which analyzes the ability of local governments and communities to respond to extreme events.243 The third phase included the development of sap, developed jointly and agreed among the eight Amazon countries.244 As the core of the project, sap creates pilot ventures on integrated management of water resources and priority adaptation measures to climate change, as well as information and communication systems and funding strategies. sap was approved in 2016, after 11 national meetings245 and the participation of 470 stakeholders.246 Nine transboundary challenges were identified as priorities for regional cooperation: (i) water pollution; (ii) deforestation; (iii) biodiversity loss; (iv) extreme hydroclimatic events; (v) erosion, sediment transport and sedimentation; (vi) ­land-use change; (vii) loss of glaciers; (viii) major infrastructure works and; (ix) integrated management of water resources. Member countries also agreed on a shared vision that sought to reflect the perceptions and aspirations of Amazonian society, developed through ­consultation with more than 8,700 inhabitants of the region. The countries

241 242 243 244 245 246

241 acto, Proyecto gef Amazonas, Integrated and Sustainable Management of Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project, 4, available at http://www.mtnforum.org/sites/default/files/news/ files/gef.amazonas.final_ingles_3_0.pdf (last visited Jan. 6, 2017). 242 http://otca.info/gef/include/pdf/es/FNL_ADAPTACION_lamina3_revisao3.pdf. 243 http://otca.pagina-oficial.com/assets/documents/20160705/912cc8f3806952325fe48fa59e 51189c.pdf. 244 acto, supra note 89, at 7. See also http://otca.info/gef/uploads/documento/9ae5e-ATIVID.III.5.1_CARLOS_GARZ--N_RELAT--RIO_2_FNL.pdf. 245 Several meetings were organized. See, e.g. http://otca.info/portal/noticia-interna.php?id= 393 ; http://otca.info/portal/noticia-interna.php?id=427 ; http://otca.info/portal/noticiainterna.php?id=436 ; http://otca.info/portal/noticia-interna.php?id=488 ; http://otca. info/portal/noticia-interna.php?id=557; http://otca.info/portal/noticia-interna.php?id= 561; http://otca.info/portal/noticia-interna.php?id=663 ; http://otca.info/portal/noticiainterna.php?id=283. 246 http://otca.info/portal/noticia-interna.php?id=682.

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consolidated three main strategic lines of response: (i) strengthening iwrm; (ii) adaptation to variability and climate change; and (iii) knowledge management. These will be implemented through 19 strategic actions. The last two phases involve the management, monitoring and evaluation of the project as a whole.247 In analyzing the results of the program, Secretary General María Jacqueline Mendoza listed the achievements of the program, which allowed: (i) the enrichment and deepening of knowledge on the subject of transboundary Amazonian water resources, through the diagnosis and joint identification of the main problems affecting its conservation and integrated management; which has positively contributed to the formulation of a shared regional vision for its conservation, management and sustainable use; (ii) strengthening of national capacities, through training and training to technical officials of national institutions responsible for water resources in each country; (iii) implementation of pilot projects to support monitoring of water resources, with emphasis on the establishment and improvement of technology platforms for data ­collection and processing in the countries, early warning systems, hydrometeorological stations, vulnerability maps, an atlas of hydroclimatic vulnerability, and the strengthening of regional networks of technical and scientific exchange. Indeed, the acto Member Countries successfully established a regional dialogue about transboundary water resources management. Among the topics discussed are the project’s expected outputs and other aspects inherent to the region’s future institutionalism, sustainability and coordination. Through the intensive research the project is looking at the vulnerabilities of the region, and searching for ways to address one of the world’s main concern, climate change. Indeed, the development of a database of natural resources, along with maps and analysis of vulnerability, and a database including the legal framework of countries on water management, provided the acto and member countries with the necessary tools to develop a common policy. Although the project took a long time to be developed, it is a successful example of a strategy to be followed in specific thematic areas. Indeed, a ­similar project could be developed with a focus on forests. While there is some available information on the Amazonian forests, specifically gathered for the GeoAmazonia report, it is mostly based on reports from countries, which often follow different baselines. In addition, there is no database on the national 247

247 http://condesan.org/mtnforum/sites/default/files/news/files/gef.amazonas.final_ingles_3_0.pdf.

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forest laws applied in Amazonia. A similar study would be incredibly valuable for Amazon countries. It could help them improve their own legal systems through examples from other countries, be the basis for the development of a regional policy, and an additional tool to voice their common concerns at international meetings such as the unff and the unfccc. Participation at Global Forums One of the main roles of the acto, as will be highlighted in Chapter 10, relates to its coordinating position of regional opinions on international environmental matters. However, the treaty’s weak structure often promotes an inability to e­ ffectively voice its position more energetically due to the bureaucracy of the organization.248 Addressing this concern, the heads of state of Amazon countries required the Permanent Secretariat to accompany the international ­negotiations on issues related to Amazonian cooperation, especially regarding climate change, biological diversity and forests. Yet the positions reflected internationally should also be preceded by the unanimous approval of the member countries, which reinforced the excessive bureaucracy of the institution. Nonetheless, throughout the fifth period of cooperation, the ps actively participated in several international gatherings, most notably at the unff and unfccc cop meetings. Most notably, a joint statement was prepared for the Rio+20 Conference.249 At the xi mmfa, the Ministers approved the declaration, which highlighted the need to promote sustainable development through the balance between sustainable use of resources and environmental protection. The resolution reflected some of the guidelines of the Strategic Agenda, and highlighted the principle of sustainable development, and their emphasis on the social aspects within the region. Additionally, the countries made a commitment to promote development in harmony with nature. Nonetheless, they noted Principle 7 of the Rio Declaration, which adopted the principle of common but differentiated responsibilities (cbdr), and reinforced the need for a stronger commitment by developed countries.250 The ministers also ­highlighted the contributions of South-South cooperation as a successful mechanism to reduce asymmetries and induce a regional coordinated action. They noted the regional emphasis on poverty eradication and the ­improvement 248 249 250

248 Id., at 127 (citing Torrecuso, 2004, p. 94). 249 xi mmfa, Declaración de los Ministros de Relaciones Exteriores de los Países Miembros de la otca para la Conferencia de Rio+20 (Nov. 22, 2011). 250 For an analysis of the cbdr principle and the Amazon countries, see Maria Antonia Tigre, supra note 205.

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of the quality of life in Amazonia, and how these aspects are indispensable to properly implement sustainable development.251 A comparison between the Rio+20 Declaration and the declaration adopted prior to the 1992 unced is inevitable. Both were adopted after a major political gathering of Amazon Heads of State, which promoted a unified vision towards regional cooperation. Nonetheless, the joint positions are very different. In comparison, the 2011 Declaration is a formal document, limited to general statements and no practical actions. Member countries expressed their concern with the unsustainable pattern of production and consumption, and raised attention to the Amazon region. While they committed to sustainable development, there was no avenue to reach the intended goal. On the contrary, they once again noted their sovereignty and diminished responsibility based on the cbdr principle, and called on developed countries to move forward towards the fulfillment of the goals agreed on internationally.252 Since the Strategic Agenda presented specific ways in which to bring the commitments into practice, it would have been expected that more stringent position be presented at Rio+20.253 This, however, wasn’t the case. The stakes were not the same. Indeed, in 1992, talks about internationalization of Amazonia was constant, ­risking the countries’ sovereignty over the region, and the natural resources within it. It was important for member countries to send a firm message. In 2011, there was no such need. On the contrary, countries reinforced the obligation from developed countries to developing countries like themselves.254 Another gathering was prepared by the organization prior to the Rio+20 Conference. In response to the mandate of the Manaus Declaration, and the xi mmfa, the Strategic Agenda, and the recommendations of the 2011 meeting of the acto’s Coordinators of the Environmental Agenda,255 the environmental ministers of the Amazon countries met on two occasions at the beginning  of  2012.256 As a result of the meeting, the Lima Declaration was

251 252 253 254 255 256

251 xi mmfa, Declaración de los Ministros de Relaciones Exteriores de los Países Miembros de la otca para la Conferencia de Rio+20 (Nov. 22, 2011). 252 2011 Declaration. Rodolfo Ilário da Silva, supra note 2, at 41. 253 Id. 254 2011 Declaration. 255 Held in Brasilia, 2011. 256 See otca organiza desayuno de trabajo de los Ministros de Medio Ambiente de los países Amazonicos, Organizacion del Tratado de Cooperacion Amazonica (otca), (Feb. 3, 2012), available at http://otca.info/portal/noticia-interna.php?id=342 http://otca.info/portal/ noticia-interna.php?id=349. See also Lima es sede de la segunda reunión de M ­ inistros

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­adopted.257 The Ministers reaffirmed their commitment to the initiatives developed by the member countries in the environmental field, as a reflex of the regional unity towards conservation and sustainable use of Amazonia.258 The meeting represented an opportunity to reaffirm the implementation of the commitments assumed in the 1992 Rio Declaration, the Agenda 21, and the Johannesburg Plan of Implementation. It was also a chance to evaluate and determine actions and measures to achieve sustainable development, highlighting the relevance given to the Amazon region for the contributions, and the meaning for biodiversity and the climate stability, focusing on poverty eradication and social inclusion.259 Like the Foreing Ministers, the Environmental Ministers reaffirmed the principle of cbdr and the sovereign right of States over natural resources, and the role of multilateral environmental agreements, especially those related to climate change, biological diversity, and the fight against drought and desertification. Nonetheless, their statement went beyond that presented at the xi mmfa. In ratifying the implementation of the strategic agenda, the Ministers highlighted the need to identify and implement actions to reduce and monitor deforestation and the use of the services and products of forests, thus adding an economic value to the ecosystem.260 Member countries committed to developing mechanisms to prevent forest fires.261 The need to adopt sustainable development goals promoting new models of development at Rio+20 was also highlighted.262 In order to advance the environmental agenda, a schedule of meetings of environmental ministers, experts, and technicians was agreed on.263 The Ministers also included an Annex to the Lima Declaration 257 258 259 260 261 262 263

257 258 259 260 261 262 263

de Medio Ambiente de los Países Amazónicos de la otca, Organizacion del Tratado de ­Cooperacion Amazonica (otca), (Mar. 19, 2012), available at http://otca.info/portal/ noticia-interna.php?id=360. acto, ii Reunión a nivel ministerial, Ministros de Ambiente, held in Lima, Peru, on Mar. 21, 2012. Declaracion de Lima (Mar. 21, 2012), available at http://www.minam.gob.pe/wp-content/uploads/2013/06/declaracion-de-lima-2012-otca .pdf. act, Environmental Ministers, Declaración de Lima (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, preamble (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, preamble (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, ¶1b (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, ¶13 (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, ¶10; ¶17 (Mar. 21, 2012). act, Environmental Ministers, Declaración de Lima, ¶19 (Mar. 21, 2012).

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a­ ddressing the issue of illegal mining in Amazonia.264 They recommended ­creating a specialized working group to develop a common strategy, and proposing mechanisms of cooperation. The year the Rio+20 occurred was also the International Year of Forests 2011.265 Within this context, the unff invited the acto to participate actively. The acto thus prepared a proposal with a series of activities programmed for 2011, including holding a side event at Rio+20. For this purpose, the acto published a document compilating the activities of member countries on forests, and presenting their visions of the Amazon forest.266 Several meetings were also held prior to the unff gatherings, in an attempt to coordinate the regional position. The forest forums were especially important for Amazon countries, and joint declarations reinforced the individual positions. At UNFF9, the acto organized a side event promoting the Monitoring of Deforestation project.267 Prior to UNFF10, the forest authorities of Amazon countries met in Ecuador, discussing recommendations and priorities according to the sub-theme of forests in the Strategic Agenda.268 The acto was present at the meeting, and once again organized a side event promoting the monitoring of deforestation project.269 The project was also promoted at the 2015 International Day of Forests, organized by the un General 264 265 266 267 268 269

264 act, Environmental Ministers, Declaración de Lima, Anexo a la Declaracion de Lima sobre La Mineria Ilegal en la Cuenca Amazonia (Mar. 21, 2012). 265 otca, Reunión de Autoridades Forestales de los Países Miembros de la otca define agenda de actividades para el Año internacional de los Bosques, Organizacion del Tratado de Cooperacion Amazonica (otca), (Mar. 31, 2012), available at http://otca.info/portal/noticia-interna.php?id=146. 266 The acto Member Countries in the International Year of Forest 2011 – Vision about the Amazon forest and expectations concerning the Conference of Rio+20, Amazon Cooperation Treaty Organization – Permanent Secretariat (acto/ps), (2012), available at http:// otca.info/portal/admin/_upload/publicacoes/400-compilado.ano.intern_bosques_baixa .pdf. 267 otca, otca realiza Side Event en el marco de la 9na Sesión del fnub (Feb. 4, 2011), http:// otca.info/portal/noticia-interna.php?id=133. 268 otca, Autoridades Forestales de los Países Miembros de otca se reúnen en Ecuador (Mar. 04, 2013), http://otca.info/portal/noticia-interna.php?id=446. See United Nations, Regional and Sub-Regional Inputs to unff10 (Sep. 30, 2012), available at http://otca.info/portal/ noticia-interna.php?id=446. 269 otca, otca presente en la x Sesión del Foro de Naciones Unidas sobre Bosques (Apr. 18, 2013), http://otca.info/portal/noticia-interna.php?id=490.

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Assembly.270 Member countries presented a joint declaration at the UNFF11, as well as the ­regional map of deforestation developed with the information gathered by the monitoring project.271 They reaffirmed their sovereignty as well as the ­commitment to broaden and strengthen regional cooperation in forest m ­ atters,  promoting  sustainable development and their national sovereignty.272 Within the framework of the unfccc, the acto participated on a limited scale during several cop meetings. Most notably, the acto contributed to the COP16,273 COP20,274 and COP21. At the x mmfa, the ministers approved a declaration calling for precise, ambitious, and effective commitments to fight climate change at the Cancun unfccc meeting.275 Similarly, prior to the Paris Climate Conference (COP21), acto adopted a declaration urging for the adoption of an international agreement to combat climate change.276 Indeed, the acto reinforced the principle of cbdr, and called on all countries to recognize their national and regional capacities, recognizing the responsibilities of developed countries and the rights of Amazon countries to promote an integral and sustainable development. 270 271 272 273 274 275 276

270 otca, Dia Internacional de los Bosques – 21 de marzo (Mar. 21, 2015), http://otca.info/portal/noticia-interna.php?id=650. 271 otca, Mapa Regional de la Deforestación en la Región Amazónica es presentado en la fnub11 (May 11, 2015), http://otca.info/portal/noticia-interna.php?id=665. 272 otca, Declaración de la otca – FNUB11 (May 14, 2015), http://otca.info/portal/noticiainterna.php?id=666. 273 otca, Cancilleres de los Países Amazonicos emiten declaración de Cambio Climático a la COP-16 (Nov. 30, 2010), http://otca.info/portal/noticia-interna.php?id=113. otca, Cancilleres de los países amazónicos participan de reunión en Lima (Nov. 25, 2010), http://otca. info/portal/noticia-interna.php?id=107. 274 otca, El Cambio Climático en la Región Amazónica: Acciones de la otca fue tema del fórum realizado por la Organización en la cop20 (Dec. 07, 2014), http://otca.info/portal/ noticia-interna.php?id=642. otca, Presidente de la COP20 visita stand de la otca (Dec. 3, 2014), http://otca.info/portal/noticia-interna.php?id=638. otca, El Cambio Climático, tema clave en la Agenda Estratégica de Cooperación Amazónica (Nov. 29, 2014), http:// otca.info/portal/noticia-interna.php?id=635. otca, La otca presente en la COP20 (Nov. 26, 2014), http://otca.info/portal/noticia-interna.php?id=632. 275 x Reunión de Ministros de Relaciones Exteriores, Acta Final (Nov. 30, 2010). Declaración de los Ministros de Relaciones Exteriores de los Países Miembros se la otca a la Décima Sexta Conferencia De Los Estados Parte (COP-16 del cmnucc) (Nov. 30, 2010). 276 otca, Países Amazónicos adoptan Declaración para la 21ª. Conferencia de las Partes (COP21) (Dec. 01, 2015), http://otca.pagina-oficial.com/news/details/91.

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Additionally, the acto participated at cites meetings,277 as well as cbd meetings.278 9.5

Developments in International Forest Law

Concurrently with the developments of the environmental agenda at the ­regional level, the international agenda developed significantly during the period, especially in 2015. Indeed, several agreements were reached, showing a larger compromise by the international community towards sustainable development. Few agreements addressed forest specifically, and these were usually developed within the framework of the unff. Nonetheless, some broader agreements manifested the global community’s recognition of the role of forest conservation and the reversal of forest degradation with an eye specifically toward halting anthropogenic climate change. Like earlier conferences (wssd, COP-7, and the World Summit) which addressed the role of forest conservation in sustainable development initiatives, the sgds, and the Paris Agreement focus on carbon emissions as indicator gauging compliance. During this period, there was a broad-based coalescing of different theoretical pieces within international instruments of forest law. Paralleling the evolving framework of the acto, international synergies between mechanisms for addressing sustainable forest development and climate change mitigation were explored. This is reflected through the international dialogue at the UNFF9, 11, and 12, and at the New York Declaration on Forests. F­ ollowing 277 278

277 otca, Países amazónicos participan de reunión preparatoria al Comité de Fauna y cites (Jun. 21, 2011), http://otca.info/portal/noticia-interna.php?id=220. otca, Países Amazónicos participaron de reunión preparatoria para el 25° Comité de Fauna y al 61° Comité Permanente de la cites (Jul. 17, 2011), http://otca.info/portal/noticia-interna.php?id=248. otca, Bogotá es sede la Reunión Regional Preparatoria al 62° Comité Permanente de la cites (Apr. 24, 2012), http://otca.info/portal/noticia-interna.php?id=382. otca, Brasilia acoge Reunión de Regional Preparatoria al 20° Comité de Flora de cites (Feb. 29, 2012), http://otca.info/portal/noticia-interna.php?id=353. otca, otca presenta evento paralelo sobre la cooperación regional para fortalecer la cites en los países amazónicos en la cop 16 (Mar. 14, 2013), http://otca.info/portal/noticia-interna.php?id=450. 278 otca, Propuesta sobre Observatorio Regional Amazónico es presentado en la xi Conferencia de las Partes del cdb (Oct. 18, 2012), http://otca.info/portal/noticia-interna.php?id=424. otca, otca presenta propuesta de implementación de un Observatorio Regional Amazónico (Oct. 17, 2012), http://otca.info/portal/noticia-interna.php?id=420. otca, Delegados de los Países Miembros de la otca participan de taller regional preparatorio a la CoP – 12 (Sep. 02, 2014), http://otca.info/portal/noticia-interna.php?id=615.

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this spirit, out of UNFF11 and 12 came the historic un Strategic Plan For Forests. In addition, the 2015 Sustainable Development Goals was agreed during the same period. Both of these set forth detailed and cognizable targets which ­reflect a holistic theory of forest management. Also illustrative of these ­evolving conceptions of holistic forest management is the Rainforest Movement’s protest of the Paris Agreement’s inclusion of the fao’s definition of “forest” – a definition, they contend, which is much too overbroad and was crafted by industry for the purposes of exploitation of forest resources. This viewpoint has a regional parallel in the increasingly holistic perspective of the acto as it more fully incorporates poverty eradication and the voices of indigenous peoples. Perhaps the best reflection of the conceptual reframing/expansion of global conversation regarding forests are the Sustainable Development Goals. Climate change, sustainable consumption and production patterns, and sustainable forest management/reversing of land degradation are all treated as separate goals, with different enumerated Targets and mechanisms for achievement. Furthering the progress begun in earlier periods, these Goals make additional strides towards uniting various public and private national and international bodies. They also amalgamate many previously corralled parameters under one umbrella, while still recognizing the unique attributes and challenges of each. Another trend during this period was the increased prominence of statistics; here there are also parallels between regional and international efforts. Either what data demonstrated, or the lack thereof, served as the basis and impetus for action. The Amazon Mapping Project established itself as a huge transboundary forest project success and obtained adequate financing in large part because it had cognizable, data-driven motivations. Similarly, the UNFF9 and Millennium Development Goals cited statistics relaying rapidly decreasing forest cover and the billions of people relying on forests for basic life needs such as subsistence and livelihoods to stimulate action; the historic accomplishments of unff 11 and 12 followed. The Paris Agreement in the form of National Development Goals ascribed as well to this data- and goal-oriented approach. Also notable is the enhanced role that finance, investment, and the private sector played during this period. The importance of securing sustainable financing for climate and deforestation prevention initiatives was recognized by the UNFF11, which updated financing mechanisms. The New York Declaration on Forests undertook, in their Update, a deep dive into the data behind the private sector’s earlier nonbinding commitments to reduce their involvement in agro-commodity-driven deforestation (ultimately concluding that severe

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limitations existed due to a lack of binding targets and public disclosure policies of compliance). Overall, the international landscape during this period was characterized by ever-increasing transboundary cooperation and merger with respect to theories and mechanisms of forest preservation, although it still remains somewhat segmented. Encouraging investments in sustainable forest management and exploration of the private sector’s compliance with non-binding divestment policies also occurred. UNFF9 and International Year on Forests The year 2011 was declared the International Year of Forests. UNFF9, welcoming this designation, was held in February 2011. The Forum focused on forest management for the people, within the context of livelihoods and poverty eradication.279 The Forum also expressed continuing concern at how much forest was being lost each year (13 million hectares at the time), and emphasized the need to take immediate preventative action in the form of ­sustainable forest management.280 This was spoken about in simultaneous recognition of the reliance of 1.6 billion people on the world’s forests for “subsistence, livelihood, employment, and income generation.”281 The 9th Forum on Forests also reaffirmed the importance of the 2007 NonLegally Binding Instrument on All Types of Forests and the four Objectives to “promote implementation of sustainable forest management.”282 Notably, the Forum explicitly mentions receptivity to the concept of “promotion of new synergies between climate change and sustainable forest management activities”.283 The New York Declaration on Forests During the United Nations Climate Summit held in New York in 2014, governments, multinational companies, indigenous groups and civil society organizations pledged to halt the loss of the world’s natural forests by 2030 through 279 280 281 282 283

279 un Economic and Social Council, Ministerial Declaration of the high-level segment of the ninth session of the United Nations Forum on Forests at 3, available at http://www .un.org/esa/forests/pdf/session_documents/unff9/UNFF9%20Ministerial%20Declaration-adopted%20on%203%20Feb%202011.pdf. 280 Id. at ¶ 5. 281 Id. at ¶ 4. 282 Id. at ¶ 6. 283 Id. at ¶ 7.

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the New York Declaration on Forests.284 The non-legally binding declaration contained a global timeline to cut natural forest loss as a way to address climate change and limit global warming to 2°C. In addition, a voluntary Action Agenda served as a guide to transform goals into actions. The declaration presented a commitment by signatories to halve the rate of deforestation by the end of 2020, and to end it by 2030. The private sector, in particular, shared a goal to eliminate deforestation from agricultural commodities such as palm oil, soy, paper and beef products by 2020, along with reducing deforestation from other economic sectors. Signatories also pledged to support alternatives to deforestation caused by subsistence farming and reliance on fuel wood for energy, as to alleviate poverty, and promote sustainable and equitable development. In addition, signatories pledged to restore degraded landscapes, and speed up restoration processes. These measures shall be conducted through strengthening of forest governance, transparency and the rule of law, while empowering communities and recognizing the rights of indigenous peoples, especially with regards to lands and resources.285 While the declaration was a successful initiative backed by ngos, private companies, governments,286 and some indigenous groups,287 only half of the Amazon countries have supported it. Signatories include Colombia, Ecuador, Guyana and Peru.288 The 2016 progress assessment updates to this Declaration were contained in the 2016 Report, and particularly hone in on Goal 2.289 Notably, the update indicates that most companies making commitments under this Goal were

284 285 286 287 288 289

284 un Declaration on Forests (2014), available at http://www.un.org/climatechange/summit/wp-content/uploads/sites/2/2014/07/New-York-Declaration-on-Forest-–-ActionStatement-and-Action-Plan.pdf. 285 Climate Summit 2014 – FORESTS – Action Statements and Action Plans, un Headquarters, (Sept 23, 2014), available at, http://www.un.org/climatechange/summit/wp-content/ uploads/sites/2/2014/07/New-York-Declaration-on-Forest-%E2%80%93-Action-Statement-and-Action-Plan.pdf. 286 New York Declaration on Forests – Progress Assessment, Partners, (2017), available at http://forestdeclaration.org/partners/. 287 Supra note 271. 288 Some subnational governments have, however, adopted the declaration. These include the Brazilian states of Acre, Amapa, Amazonas, and the Peruvian states of Amazonas, Huanuco, Loreto, Madre de Diós, San Martin, and Ucayali. 289 New York Declaration on Forests Progress Assessment, available at http://forestdeclaration.org/about/. Goal 2 is described as “Support and help meet the private sector goal of eliminating deforestation from the production of agricultural commodities such as palm oil, soy, paper, and beef products by no later than 2020, recognizing that many companies have more ambitious targets”.

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­focused on palm oil (59%) and wood products (53%); the report notes that cattle, although a major driver of deforestation, has only 12% of commitments.290 The Update notably remarks that “many companies with deforestation-related commitments continue to lack time-bound, actionable plans for how these commitments will be implemented,” and also observes that “a majority” of these companies do not make public any internal compliance with forest policies,291 here are no real accountability measures to be taken. Lastly, the Update connects a lack of strong international forest governance with progress with deforestation initiatives, citing the need for “increased momentum behind programs that link landscape-level public programs paired with private-sector sourcing commitments.”292 With respect to Goal 2, or “agro-commodity-driven deforestation”, the nydf released a separate Assessment Report in November 2016 addressing only this Goal.293 Among the plethora of information within this report, a key point emerges: a lack of parameters and comprehensive analytical frameworks or datasets for determining what the overall impact on forests actually is.294 Towards solving this problem, the Report crafts four Criteria. Purportedly, this “aggregates, cross-references, and interprets data from a variety of disparate sources”.295 The report also emphasizes that the key drivers of agricultural deforestation are palm oil, soy, cattle, and wood products; Brazil and Paraguay are two of the four countries named as having the largest “shares of production and trade of these commodities,” and emphasized “targeted action in these countries”.296 290 291 292 293 294 295 296

290 Climate Focus. 2016. Progress on the New York Declaration on Forests – Achieving Collective Forest Goals. Updates on Goals 1–10. Prepared by Climate Focus in cooperation with the nydf Assessment Coalition with support from the Climate and Land Use Alliance and the Tropical Forest Alliance 202 at 8. 291 Id. 292 Id. 293 Climate Focus. 2016. Progress on the New York Declaration on Forests: Eliminating Deforestation from the Production of Agricultural Commodities – Goal 2 Assessment Report. Prepared by Climate Focus in cooperation with the nydf Assessment Coalition with support from the Climate and Land Use Alliance and the Tropical Forest Alliance 2020. 294 Id. at 7. 295 Id. The datasets are said to “[draw] on existing work on data from all partner organizations and filling in data gaps through company interviews.” The Criteria include:(1) Commitment to deforestation-free commodities; (2) Implementation of private-sector forest commitments; (3) Support by non-supply chain actors; and (4) Overall impact on deforestation. Id. at 8–9. 296 Id.

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Millenium Development Goals The Millenium Development Goals (mdgs), originally agreed on in 2000, had set 2015 as the target date for the achievement of the objectives set forth. As a result, a new report on the progress of the mdgs was released in 2015.297 Goal 7 addressed the need to ensure environmental sustainability, with one of the Target 7.A specifically stating the goal to integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources. Deforestation was the first aspect used to assess progress.298 The report concluded that deforestation has slowed, both due to a slight decrease in deforestation and an increase in afforestation, as well as the natural expansion of forests in some countries and regions. Nonetheless, it also assessed that it continues to jeopardize species and livelihoods of at least 1.6 billion people who directly depend on them. Estimates show that net loss in forest area declined from 8.3 million hectares annually in the 1990s to an estimated 5.2 million hectares each year from 2000 to 2010. Despite a significant improvement, an area about the size of Costa Rica is still loss annually, with some countries showing alarmingly high rates. South America, along with Africa, experienced the largest net losses of forest area in the first decade of the new millennium.299 The report acknowledged some of the ecosystem functions provided by forests, including clean air, shelter for animals and plants, a role in adaptation and mitigation of climate change, and catchment for threefourths of fresh water. The Sustainable Development Goals, presented below, replaced the the mdgs in 2016. UNFF11 The 11th meeting of the unff, which occurred in 2015, defined a significant moment in the development of International Forest Law. It reiterated the value of the un Forest Instrument and the Global Objectives, and emphasized the design of national forest financing strategies.300 The Member States adopted a “historic” resolution in the form of the International Arrangement on Forests, which lays out a roadmap to follow until 2030 including a “mid-term review” in 2024.301 A shorter-term programme that was adopted was the Quadrennial

297 298 299 300 301

297 United Nations, The Millenium Development Goals Report 2015 (2015), available at http://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%20 (July%201).pdf. 298 Id., at 52. 299 Id. 300 UNFF11 Outcome Fact Sheet, available at http://www.un.org/esa/forests/news/2015/06/ unff11-fact-sheet/. 301 Id. at 1. The provisions for the mid-term review also prescribe additional issues to consider at that time.

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Programme of Work (referred to in the literature as “4POW”). Notably, the resolution directs consideration at this review towards whether “a legally binding instrument on all types of forests” would be necessary, and such instrument’s potential financing options.302 The UNFF11 Ministerial Declaration adopted sixteen paragraphs in furtherance of the “International arrangement on ‘The forests we want: beyond 2015’”.303 The Ministerial Declaration, and indeed the main thrust of the 11th Forum itself was very much forward-thinking and future-oriented. Of note was a re-affirmation of the commitment to the sustainable management of forests,304 the explicit reference to many societal elements as being positively transformed by “sustainable forest management”,305 and a commitment to reaching a common understanding of the definition of sustainable forest management internationally and bilaterally.306 Regarding organizational monitoring issues, the ministers vowed to strengthen national monitoring, assessment and reporting in countries,307 and affirmed their commitment to “promot[ing] the integration of sustainable forest management and the commitments contained in the non-legally-binding instrument … into … national sustainable development strategies and sectoral policies …”308 At this conference, the Ministers also requested that forests be integrated into the dialogue at international conferences309 and enhanced involvement in sustainable development discussions.310 They also committed the Forum to a new series of meetings.311 Regarding financing, it was decided to re-term/ 302 303 304 305 306 307 308 309 310 311

302 Id. 303 un Economic and Social Council, Draft Ministerial Declaration of the high-level segment of the eleventh session of the United Nations Forum on Forests, E/CN.18/2015/L.1/Rev.1. 304 Id. at ¶ 4. 305 Id at ¶ 4. These include poverty eradication, economic growth and sustainable livelihoods, food security and nutrition, gender equality, cultural and spiritual values, health, water, energy production, climate change mitigation and adaptation, combating desertification, reduction of dust and sand storms, biodiversity conservation, sustainable soil and land management, watershed production and disaster risk reduction. 306 Id. at ¶ 6. 307 Id at ¶ 14(k). 308 Id. at ¶ 14(c). 309 These include The Third International Conference on Financing for Development, the United Nations Summit to adopt the post-2015 development agenda, and the 21sdt Session of the Conference of the Parties to the unfccc. See unff11 Outcome Fact Sheet, supra note 55. 310 The Forum requested “a more active approach in the negotiations during the High-­ Level Political Forum on Sustainable Development” and advised stakeholder ­contribution to the post-2015 sustainable development agenda. See Outcome Fact Sheet, supra note 55. 311 Id.

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upgrade the “unff Facilitative Process” to the unff Global Forest Financing Facilitation Network (gfffn).312 The Ministers also committed the Forum to a new series of meetings.313 Lastly, UNFF11 established a Working Group, which would later take up the task of integrating both ahegs’ commentaries into the adopted Strategic Plan.314 Notably, the UNFF11 explicitly convened two “open-ended, intergovernmental ahegs (Ad Hoc Expert Groups) to develop proposals on a replacement for the reference to the Millennium Development Goals in the un Forest Instrument …”.315 This effort was tasked with appropriately referencing the sdgs and targets, the Strategic Plan, and 4POW.316 aheg 1 met in April 2016, where they proposed six Global Forest Goals (gfgs)317 and coined the name “un Strategic Plan for Forests” (the Strategic Plan) in order to “give the plan greater prominence within the un.”318 aheg 2 established broad consensus on the Draft Strategic Plan and the quadrennial work programme, which was submitted to the UNFF12 Working Group and Special Session.319 2015 Sustainable Development Goals Also approved in 2015, the Sustainable Development Goals (sdgs) are part of a larger Agenda for Sustainable Development. It consists of seventeen internationally agreed upon goals aimed to be achieved by 2030.320 The un Division 312 313 314 315 316 317 318 319 320

312 unff Outcome Fact Sheet, supra note 61 at 1, see also Earth Negotiations Bulletin, 31 iisd Reporting Services 202, un Forests Working Group on the Strategic Plan for Forests and Programme of Work 2017–2020: 16–20 January 2017 at 2, available at http://www.iisd.ca/ download/pdf/enb13202e.pdf. 313 Id. 314 Id. at 3. 315 Earth Negotiations Bulletin, 31 iisd Reporting Services 202, un Forests Working Group on the Strategic Plan for Forests and Programme of Work 2017–2020: 16–20 January 2017 at 2, available at http://www.iisd.ca/download/pdf/enb13202e.pdf. 316 Id. 317 These goals include: (1) Reverse the loss of forest cover worldwide through sfm (Sustainable Forest Management); (2) Enhance forest-based economic, social, and environmental benefits; (3) Protected and sustainably-managed forests; (4) Financial Resources; (5) Governance frameworks; (6) Coherence and synergies. enb, id., at 7. 318 @IISDRS Summary & Analysis of the un Forum on Forests Working Group and Special Session Newsletter (Monday, Jan 23, 2017) (on file with author). 319 Id. It is noted that aheg 2 considered issues including: “guiding principles for the inclusion of goals and targets; existing intergovernmentally-agreed provisions on forests; forests’ contribution to the sdg’s; and forest-related data and baseline information.” Earth Negotiations Bulletin, supra note 69. 320 un Division For Sustainable Development, Mission Statement, available at https://sustainabledevelopment.un.org/about.

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for Sustainable Development administers the implementation. Three goals are most pertinent to considerations for a potential legally-binding instrument on forests. Based on the minimization of the use of natural resources, Goal 12 is to “Ensure sustainable consumption and production patterns”. This goal uses two measures of raw material usage to measure progress: (i) material footprint, or the amount of primary material required to meet a country’s needs,321 and (ii) domestic material consumption, or the amount of natural resources used in economic processes.322 Target 12.1 of this Goal is to implement a 10-year framework of programs on sustainable consumption and production with developed countries to take the lead.323 Target 12.2 sets the goal of achieving “the sustainable management and efficient use of natural resources” by 2030.324 Target 12.a sets out to support developing countries in strengthening “scientific and technological capacity to move towards more sustainable patterns of consumption and production.”325 Goal 12 will be reviewed at the High Level Political Forum on Sustainable Development in 2018.326 Goal 13 exhorts “Urgent action to combat climate change and its impacts”.327 It appears that the relevancy of this goal is in large part funding-based; it outlines the commitment of developed countries to via the Green Climate Fund a funding mechanism within the unfccc “to assist developing countries in adaptation and mitigation practices”.328 These countries have committed to mobilizing $100 billion a year by 2020 in climate financing for developing countries.329 Goal 13 will be reviewed at the High Level Political Forum on Sustainable Development in 2019.330 Goal 15, “Life On Land”, focuses on managing forests sustainably, restoring degraded lands and successfully combating desertification, reducing degraded

321 322 323 324 325 326 327 328 329 330

321 It is noted that in 2010, the total material footprint in developing regions was significantly higher (23.6 kg per unit of gdp) than that of developed countries (14.5 kg per unit). Id. 322 un Sustainable Development Knowledge Platform, Sustainable Development Goal 12, available at https://sustainabledevelopment.un.org/sdg12. 323 Target 12.1 – available at https://sustainabledevelopment.un.org/sdg12. 324 Target 12.2 – available at https://sustainabledevelopment.un.org/sdg12. 325 Target 12.a – available at https://sustainabledevelopment.un.org/sdg12. 326 Id. 327 un Sustainable Development Knowledge Platform, Sustainable Development Goal 13, available at https://sustainabledevelopment.un.org/sdg13. 328 Id. 329 Id., Target 13.a. 330 un Sustainable Development Knowledge Platform, Sustainable Development Goal 13, available at https://sustainabledevelopment.un.org/sdg13.

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natural habitats and ending biodiversity loss.331 The un Division for Sustainable Development notes the extreme loss of forests due to agricultural and infrastructural conversion, as well as the rapid decline of amphibian species in Latin America due to wildlife disease.332 Target 15.2 aims to promote the implementation of sustainable management of all types of forests, halt deforestation, restore degraded forests, and substantially increase afforestation and restoration globally by 2020.333 Goal 15 will be reviewed at the High-Level Political Forum on Sustainable Development in 2018.334 Paris Agreement The Paris Agreement entered into force on November 4, 2016, with 122 of 197 Parties to the unfccc ratifying.335 This Agreement builds on prior work by the unfccc and the Kyoto Protocol, and lays the framework for collaboration between the unff and unfccc.336 The aim of the Paris Agreement is to (i) coordinate a global response to climate change in order to limit the global temperature rise this century to 1.5 degrees Celsius; and (ii) enhance countries’ abilities to tackle the effects of climate change.337 This Agreement also put into place a periodic, repeated 5-year assessment of progress made towards emissions reductions and climate action. An important aspect of accountability in the Paris Agreement manifests in the form of “nationally determined contributions”, or “ndcs”.338 These are domestic mitigation measures that each party will commit to achieving and thusly published in a public registry by the secretariat.339 All Amazon countries have submitted their intended ndcs.340 331 332 333 334 335 336 337 338 339 340

331 un Sustainable Development Knowledge Platform, Sustainable Development Goal 15, available at https://sustainabledevelopment.un.org/sdg15. 332 Id. 333 Id. 334 Id. 335 unfccc, The Paris Agreement, fccc/cp/2015/L.9/Rev.1, available at http://unfccc.int/paris_agreement/items/9485.php. 336 iaf and the Paris Agreement, United Nations Forum on Forests, (Paris 2015), Available at http://www.un.org/esa/forests/iaf-beyond-2015/iaf-and-the-paris-agreement/index .html. 337 unfccc, The Paris Agreement, fccc/CP/2015/L.9/Rev.1, available at http://unfccc.int/ paris_agreement/items/9485.php. 338 Article 4, ¶2 of the Paris Agreement states that each party shall prepare, communicate, and maintain successive nationally determined contributions that it intends to achieve. Article 4, ¶2, Paris Agreement, unfccc, The Paris Agreement, FCCC/CP/2015/L.9/Rev.1. 339 The ndcs are currently being published in an Interim Registry, available at http://www 4.unfccc.int/ndcregistry/Pages/Home.aspx. 340 Maria Antonia Tigre, supra note 205, at 417–418.

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World Rainforest Movement’s 2016 Open Letter to fao The fao must urgently revise its forest definition from one that reflects the preferences and perspectives of timber, pulp/paper, rubber and carbon trading companies, to one that reflects ecological realities as well as the views of forest-dependent peoples.341

In protest of the fao’s current definition of forests conceived of in 1948, several countries have requested a revision of the concept through the World Rainforest Movement’s (wrm) 2016 Open Letter to fao. The letter was motivated by the adoption of the old concept in the Paris Agreement, and the request specifically addressed the exclusion of industrial/agricultural monoculture tree plantations. The letter is scheduled to be sent to the fao on March 21, 2017, in commemoration of the International Day of Forests. The request follows a 2015 protest at the Word Forest Congress. At the time, activists were told that the definition was necessary to synthesize forests in over 200 countries. fao stated that their concept puts in place “a globally ­valid, simple, and operational categorization of forests” in order to “enable consistent comparisons over longer periods of time.”342 The wrm points out an ­obvious temporal issue with this assertion, however; even within some countries’ definitions of forests, there exists references to the fao’s already-extant definition.343 This, they contend, shows how influential the antiquated 1948 definition is, it actually has informed nations’ subsequently-developed definitions of forests. On a practical level, the concept ignores other fundamental aspects of forests, like other plants, animals, and forest-dependent communities, and vital contribution of forests to natural processes that provide soil, water, and oxygen. It also actively promotes the establishment of many millions of h ­ ectares 341 342 343

341 World Rainforest Movement, How Does the fao Forest Definition Harm People and Forests?, available at http://wrm.org.uy/other-relevant-information/how-does-the-faoforest-definition-harm-people-and-forests-an-open-letter-to-the-fao/. 342 Id., citing fao Letter to the protestors (unable to locate original letter). 343 See wrm’s discussion of the Brazilian Forest Service’s explanation of their national definition of forests, in which the bfs asserts that their definition “considers as a forest the woody vegetation types that come closest to the forest definition of the Organization of the United Nations for Food and Agriculture (fao).” Id., citing Serviço Florestal Brasiliero, Florestas Do Brasil em resumo at 7 (2009), available at http://www.mma.gov.br/estruturas/ sfb/_arquivos/livro_portugus_95.pdf.

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of ­industrial tree plantations of mainly alien species.344 This overinclusiveness is compounded when considered in light of forest carbon offset programs, specifically REDD+. These programs operate using the unfccc (and thusly industry-friendly) definition of forests, which gives an incentive to nations to host wood-based industry plantations in order to receive offset credits and compensation. UNFF12 The UNFF12 Working Group, established under the iaf, convened in January of 2017, where it undertook a review of the Strategic Plan345 and the 4POW.346 The Working Group made efforts toward creating a transformational Strategic Plan, which would signal the unff’s commitment to meeting the forest-­related targets of the 2030 Agenda for Sustainable Development, the Aichi Biodiversity Targets, and the Paris Agreement on Climate Change.347 Upon completion of the review and adjournment of the Working Group, a Special Session of the UNFF12 was convened to adopt the report of the unff Working Group.348 Amazonian countries participated in the Working Group, emphasizing key issues. In remarks on the General and Opening Statements, Brazil stated that they “would accept quantitative targets as long as they are supported by equally ambitious and specific targets for financial support”;349 and “urged including sources of data used to justify the importance of forests to people and the 2030 Agenda”.350 Brazil, as well as the u.s., also pointed out that the lack of coordination at the global level, and not “fragmentation”, is the “constraint” to forest governance;351 they emphasized their preference for a positive reference (“need for greater coordination”) as opposed to negative terminology 344 345 346 347 348 349 350 351

344 World Rainforest Movement, supra note 1. 345 unff11 Working Group’s focus with respect to the Strategic Plan was on “global forest goals and targets, implementation framework, review framework, and the communication and outreach strategy.” Id. at 1. 346 UNFF11 Working Group’s focus with respect to the 4POW was “the thematic and operational activities and resources required to implement the Strategic Plan” abnd other priorities for action in the future. Id. 347 Id. at 1. 348 Id. 349 Id. 350 Id at 2. 351 Id. Brazil also proposed the following language for the mission statement, “to promote sfm and the contribution of forests and trees outside forests to the 2030 Agenda for ­Sustainable Development.” Id. at 3.

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(“reduce fragmentation”) to describe the challenges faced in synchronizing all ­stakeholders.352 Peru, along with several others, “proposed adding a reference to forests providing ecosystem services.”353 Interestingly, iufro (International Union of Forest Research Organizations, discussed above) played a role in these discussions, “stress[ing] the need for establishing a formal modality to allow the scientific community to bring its contributions to discussions in a more effective way, including through a science-policy dialogue.”354 Peru expressed the desire to include “reference to the local level within coordination challenges to forest governance.”355 With respect to Goal 1 (Reverse the loss of forest cover worldwide), there was disagreement between the Amazon countries about the percentage target for increasing the world’s carbon stocks (Peru suggested raising the 3 percent to 5 percent; Brazil opposed the target altogether). Peru also “proposed increasing the area of forest under sfm by 1.5–2% and the world’s forest carbon stocks by 4 percent.”356 With respect to Goal 2 (Enhance forest-based economic, social, and environmental benefits), Brazil expressed desire to include “thematic areas on agroforestry, ecotourism, and research,” and for discussion of the contribution of forests to climate change to be “enhanced in accordance with the unfccc.”357 Throughout the Session, some Member countries advocated for putting emphasis on coordination and collaboration across Members, and others did not; likewise, some wanted to include specific numeric targets and others did not. There were disagreements over and compromises reached with 352 353 354 355 356 357

352 353 354 355 356 357

Id. at 3–4. Id. at 3. Id. Id. Id. at 4. Id. at 5. Other issues Brazil weighed in on include the following: regarding Goal Three (Protected and sustainably managed forests): identified the unclear nature of the term “fully protected” as it applied to percentages of forests designated as such; called for “deletion of the target on market access and enhanced competitiveness of sfm products”; in the context of the discussion about what the baseline for protected areas should be, pointed out that the “Aichi Biodiversity targets aim for 17%, which includes ‘other areas with conservation measures’, granting recognition for a wide variety of designations, such as indigenous reserves, and not just strictly protected areas,” and further exhorted the need to adhere to the Aichi Biodiversity Targets when China wanted to maintain “reference to national parks as a way of significantly increasing the area of forests designated as protected areas” because, they reasoned, this is a global target, and the Plan “should not single out individual country initiatives.” Id. at 6.

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respect to various terminology used to frame the Plan as well as build in and ­action-oriented perspective. Overall, the hope is that the Strategic Plan will signal a coherent and organized investment opportunity for those who have funded other f­orest-related initiatives such as the unfccc and the cbd, and that the 4POW will serve as the day-to-day engine, driving intercessional motivation and implementation.358 9.6 Conclusion The fifth phase of development of the Amazon Cooperation Treaty Organization (acto) began with the 2009 Meeting of the Presidents, and the subsequent launch of the 2010–2020 Strategic Agenda. In the Manaus Declaration adopted by the heads of state, member countries decided to renew the acto as a modern forum of cooperation, recognizing sustainable development as a priority in Amazonia, thus reshaping the acto as an international organization for sustainable development of Amazonia. The 2009 Declaration updated some of the original principles and goals of the act, recognizing the role of cooperation in the region, thus linking sustainable development with an integral, participative, shared and equitable administration. The Declaration also recognized the need to emancipate the organization and actions for cooperation from the constant need to gather external resources. The dependency of external funding has been a constant challenge, and one of the main reasons for the lack of continuity in a series of initiative. Within this spirit, a new structure of the Permanent Secretariat was adopted. In addition, new regulations of the ps and the ps’ staff, the mmfa, acc, and ccacc were approved. Due to the growing dynamic of cooperation between countries, the period is called the “revitalizing the acto phase”. The Strategic Agenda of Amazon Cooperation, called aeca, approved in 2010, established action at the short, medium and long term in a wide range of themes, improving the previous agenda. The new agenda went beyond repeating the original principles of the act, and established both a vision for the Amazon region and a vision for the future, embracing the principle of sustainable development and the rights and responsibilities of countries at the national and international levels. The visions, mission, and strategic goals of the acto were based on two axes of transversal approach: (i) conservation and sustainable use of renewable natural resources, and (ii) sustainable development (improving quality of life for the Amazon Region’s inhabitants). 358

358 Id. at 13.

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It particularly advanced the forestry agenda, and officially incorporated climate change as a topic of common concern. Within the forestry agenda, the main objective was to recognize Amazonian forests as an environmental ­asset, providing it with an economic value that can fund activities towards preservation. The agenda speficially addressed protected areas as a core topic of c­ onservation, with a broad range of activities that addressed the main goal of strengthening management of protected areas at the national level and contribute to biodiversity conservation at the regional level, as well as the ­challenges in information gathering, institutional capacity, funding, increased participation, governance, monitoring, and negotiation at the global level. Finally, the agenda included a section on emerging topics, namely climate change, regional development, and energy. After a disagreement as to the role the organization should take with respect to climate change in previous phases, the acto officially decided to include it as a formal aspect of its agenda. With the main goal of promoting coordination to counter the impacts of climate change, the agenda included specific activities in information gathering and regional coordination. In analyzing the implementation of aeca, some specific projects were highlighted. These include the Amazon Regional Observatory, which addressed the insufficiency of technology development and sharing and the lack of information. Within the forestry agenda, the monitoring of deforestation project reached center stage, becoming a model for regional cooperation through South-South Cooperation and technology sharing. Within the climate change agenda, the gef Amazon project was advanced, seeking to create a shared vision for water resources and land use among the member states, thus inducing the common responsibility for the sustainable management of the basin as a whole. The protected areas agenda received less attention, and had to be complemented by efforts outside of the scope of the act. It should be noted that several other initiatives have been advanced by ngos in the Amazon region.359 While these are beyond the scope of this book, they have helped shape sustainable development in the region. Some of the initiatives in protected areas were noted throughout the chapter. While the reasons for the lack of participation 359

359 For example, the recent Sustainable Landscapes of the Amazon project, a joint project between the World Bank as the lead agency, the Global Environment Facility (gef), the World Wide Fund for Nature (wwf) and the United Nations Program for Development (undp), a regional initiative covering Brazil, Colombia and Peru, which aims to maintain 73,000,000 hectares of forest land, promote sustainable land management in 52,700 hectares, and support actions to help reduce CO2 emissions by 300 million tons by 2030. See The gef, Nuevo programa regional para proteger la Amazonia, (Oct. 21, 2015),

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of the acto are unclear, there is a missed opportunity of regional cooperation within its framework. With three years still left on the implementation of the agenda, an analysis of compliance with the specific activities envisioned is warranted. Indeed, the ps should specifically look at how each of the short, medium, and long-term goals were complied with, with a vision towards what can still be done until the development of a new agenda. In addition, a revised strategic agenda should be negotiated soon. Within the three sub-themes highlighted here (forests, protected areas, and climate change), the forestry agenda was the most advanced. Nonetheless, it activities were limited to the short-term agenda. E ­ fforts with respect to the sustainable forest management of forests were developed and implemented, bringing a broad range of stakeholders to the discussion table. The acto participated in a series of international events, including the unff and the unfccc. However, while it organized regional meetings to discuss illegal logging and forest fires,360 it has yet to develop programs or activities, or implement guidelines or regional strategies to address the challenges faced. In addition, the main idea to endow forests with an economic value wasn’t complied with. Finally, there have been few actions towards promoting reforestation and rehabilitation of degraded areas. In the Vision of the Regional Action ps/acto 2016–2018, the organization highlighted the need to address new international agreements such as the Sendai Framework for Disaster Risk Reduction (2015–2030), the 2030 Agenda for Sustainable Development, the Addis Abeba Agenda for Action on Financing for Development (aaaa) and the Paris Agreement on Climate Change. It is essential that these are incorporated within the acto’s agenda, as these will have a significant impact for the Amazon region.361 360 361

https://www.thegef.org/gef/ES/programa-regional-amazonia. The Amazon Waters Initiative, initiated by the Wildlife Conservation Society (wcs), which adopted a ­declaration about the river basin, supported by the governments of Peru and Brazil. See http:// amazonwaters.org/noticia/historic-declaration-signed-to-ensure-protection-of-amazon -basin/ ; http://amazonwaters.org/wp-content/uploads/2016/06/JOINT-STATEMENT.pdf; http://amazonwaters.org/memoria2016/. 360 Since 2012, the acto started developing a proposal for a new regulatory instrument to promote cooperation for the protection of natural resources from forest fires in A ­ mazonia. (Acuerdo Marco de Cooperación y Asistencia Mutua para la Gestión Integral de los Incendios Forestales entre Los Países Miembros de la otca). It regulates assistance and ­collaboration between Amazon countries to manage forest fires, focusing on mutual assistance. Dialogue phase to discuss the best legal mechanisms. Supra note 168 at 2. 361 Who are we?, Organizacion del Tratado de Cooperacion Amazonica (otca), (Feb. 10, 2017) Available at http://otca.pagina-oficial.com/about/who_we_are.

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Finally, the chapter highlighted some of the advancements of International Environmental Law, and International Forest Law throughout the period. The International Year on Forests marked the beginning of the period, and the UNFF9 brough forests to the context of livelihoods and poverty eradication, with a focus on forests for the people. During the United Nations Climate Summit held in New York in 2014, governments, multinational companies, indigenous groups and civil society organizations pledged to halt the loss of the world’s natural forests by 2030 through the New York Declaration on Forests. While the non-binding agreement didn’t include broad participation of countries, it developed a timeline to cut natural forest loss and address climate change. In 2015, the new Millenium Development Goals were approved, with a particular focus on sustainable development and the need to reverse the loss of environmental resources and deforestation. UNFF11 defined a significant moment in the development of International Forest Law by adopting a historic resolution in the form of the International Arrangement on Forests, which lays out a roadmap to follow until 2030. It reiterated the value of the un Forest Instrument and the Global Objectives, and emphasized the design of national forest financing strategies. Finally the Sustainable Development Goals were adopted as part of the larger Agenda for Sustainable Development, with several goals pertaining to forests. The Paris Agreement was also approved that year, builing on prior work developed by the unfccc in the form of the Kyoto Protocol, and laying the framework for collaboration between the unff and unfccc. A movement at the end of 2016 called on the fao to change the decades-old definition of forests, specifically addressing the exclusion of industrial/agricultural monoculture tree plantations. Finally, the UNFF12, which convened in January 2017, undertook a review of the Strategic Plan, which would incorporate forest-related targets of the 2030 Agenda for Sustainable Development, the Aichi Biodiversity Targets, and the Paris Agreement. Indeed, these new agreements are still being grappled by organizations, and the incorporation of commitments will shape future activities, especially with respect to the work done by the acto. Internationally-speaking, there were several cognizable themes that characterized this period. Firstly, there was an increased emphasis on the value of science, data, and statistics in terms of motivating projects forward and prescribing cognizable, measurable goals. While there are differences between Amazonian countries about what the goals themselves should be, the international conversation is occurring. Relatedly, it was also recognized that sustainable mechanisms of financing and investment were increasingly

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achievable when data-based goals were set; in fact, several instruments keyed their ­framing in part to this. A second theme here was an increased express recognition of the interconnected nature of climate change and deforestation, and a tailoring of the aforementioned goals and targets to achieve a reduction in both. Lastly, an increasingly holistic view of who the forest benefits, how it benefits them, and means to involve all stakeholders in the international decision-making process was adopted and enshrined within the instruments of international forest governance.

chapter 10

Critical Analysis of the act/acto Achieve sustainable development in the Amazon region reconciling use, protection and conservation of its resources, with equitable conditions that ensure integral sustainable development, effective presence of the State in its different levels of Government and Amazonian populations that fully exercise their rights and obligations in the framework of the national laws in force and international agreements.1

∵ Societies usually follow a logical development: norms are adopted, and consequently a structural organization is established. The acto, however, followed a reversed logic: in the absence of an efficient normative framework, the ­Amazon countries invested in institutional strengthening.2 Indeed, besides one amendment protocol, no other treaty or agreement was adopted by the organization throughout its almost four decades of existence. Nonetheless, many declarations were approved by its political bodies. These are limited to showing the countries’ goals, and fail to include more practical commitments. As non-binding statements of the countries’ will, the advances have been more rhetorical than practical.3 From a basic treaty with principles that reinforced the Amazon countries’ rights rather than establish new obligations, the act developed into an international organization. While the bureaucracy expanded, there are still no actual enforceable rules that ensure results.4 From a purely environmental perspective, it is often easy to criticize Amazon countries for allowing vast deforestation and forest degradation, failing to 1 acto, Amazonian Strategic Cooperation Agenda 15 (Nov. 2010) (hereinafter acto, Strategic Agenda), available at http://www.otca.info/portal/admin/_upload/apresentacao/AECA_eng .pdf. 2 Paulo Henrique Faria Nunes, A Organização do Tratado de Cooperação Amazônica: uma análise crítica das razões por trás da sua criação e evolução in 13(2) Revista de Direito Internacional 220–243, 236 (2016). 3 Id., at 236. 4 Id.

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secure effective results in the policies adopted, or to adopt policies that in fact address the main problem at hand. Indeed, along with climate change, deforestation has been deemed the main environmental challenge of our generation. Rapid deforestation and environmental degradation represent ­significant concerns and international and regional cooperation have ultimately failed to provide a joint solution to these problems. The acto obviously has normative and institutional weaknesses that ultimately prevent more e­ ffective regional cooperation and the achievement of practical results. Due to the lack of human and financial resources, it has achieved limited practical impact. Regional cooperation never developed smoothly. Amazon countries have constantly reinforced their political commitment to the act/acto, as if there was a constant need to actually make clear that they intended to continue supporting the organization. In the meantime, other regional organizations have flourished. Although their missions are not necessarily environmental, their environmental agendas have advanced more than the act itself, with specific international agreements that actually regulate environmental protection, and establish enforceable rules to some of the Amazon countries. These, however, do not involve the eight countries that share the Amazon ecosystem, and are thus not applicable in the entire region. This book gives an overview of the existing regional framework of cooperation provided by the act/acto, and indicates how Amazon countries have cooperated throughout the years since the act was signed. After the broad historical analysis of the development of regional cooperation in Amazonia, specifically focused on the act’s framework, this chapter critically analyzes the acto and asks whether it can induce socio-economic sustainability in Amazonian forests through a regional approach. While there has been enormous criticism to the act/acto framework, its slow development and loose implementation, it has successfully developed some interesting initiatives in its forestry agenda, and, more recently, started to invest in regional climate change adaptation. The Tarapoto Process, the Monitoring of Deforestation Project, and the gef Amazon Project are the most successful examples, which could be replicated as case studies to other themes and areas to strengthen the organization’s role. Other projects are still underway, with results that appear promising. Before looking at the acto, however, it is important to ask two main questions: whether forestry should be regulated at the regional level, and whether the acto is the appropriate forum for regional cooperation and development of the forestry agenda in Amazonia. These questions are essential prior to the analysis of the ways in which the acto hasn’t properly worked, and the roles it realistically can fulfill in the future. The chapter is thus divided in two

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parts. The first part, in Sections 10.1, and 10.2, answers these two preliminary questions. The second part addresses the roles the acto actually can fulfill. In a critical analysis of the acto, it’s important not to lose sight of the reason for the adoption of the treaty. The act developed as a cooperation mechanism among Amazon countries to reinforce sovereignty and promote regional development – n ­ ot to protect the Amazonian environment. As such, efforts of regional integration were at first based on nationalism and affirming the sovereignty of each country, especially over their natural resources. The historical context in which the organization was created is essential, largely incentivized by military governments worried about the defense of territory. Maintaining full sovereignty was therefore the countries’ main concern, and the basic premise on which the treaty was founded. Based on the negotiation process, it can be inferred that countries would not have agreed to it without this protection. As it developed, the organization became an advocate for sustainable development, reinforcing the positions of countries at the national level. Indeed, sustainable development was constantly reinforced in the declarations ­adopted by the political bodies of the organization. At the international level, countries often called for innovative economic models that changed the unsustainable pattern of exploitation. The 2010–2020 Strategic Agenda included a broad range of themes in its sectoral agenda, including conservation, p ­ rotection and sustainable use of renewable natural resources, indigenous affairs, health, infrastructure, tourism, climate change, energy and regional development. These ample themes followed two cross-cutting axes, conservation and sustainable use of renewable natural resources, and sustainable development. The Agenda thus represented a landmark for the organization, with a renewed focus that moved away from the previous relevance placed on sovereignty. Indeed, sovereignty was not constantly reinforced as before, even if it remains a paramount principle of International Law and regional cooperation. With the renewed focus, an opportunity arises for increasing practical participation at the regional level. Indeed, considering the state of the climate crisis and the constant plight at climate negotiations for reducing greenhouse gases, tropical countries are at the core of both the problem and the solution. As one of the main sources of ghgs, a strategy for deforestation is a m ­ andatory tool to successfully reduce emissions at the global, regional, and national levels. Nonetheless, a solution necessarily requires alternatives to socio-economic development. Within the global context and the constant balance faced by countries, the acto has developed as an organization for sustainable development, rather than a purely environmental organization. It is important to reinforce sovereignty, and constantly recognize that Amazon countries have the

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ultimate say as to how they use their resources. In addition, it is essential not to lose sight of the countries’ condition as developing economies, which still confront severe issues in poverty and under-development. Government officials are often faced with an impossible challenge: balancing the advancement of socio-economic development with lifting their populations from poverty while protecting the most biologically diverse forest on Earth. However, there is also a responsibility for the present and future generations, something that has been recognized at the national levels. Development shall be met by balancing the needs of both. The answer is never that simple, and it shouldn’t be an either/or. Indeed, the advancement of sustainable development and the increased recognition of the value of the ecosystem service provided by nature make this balance easier. As will be highlighted in Chapters 12 and 13, many countries have found interesting solutions for curbing deforestation, and those initiatives could be replicated in other countries through the acto, fulfilling one of the main roles or the organization. Within this context, it is imperative to define the acto as what it actually is, without requiring the organization to fulfill a role it is impossible for Amazon countries to agree to. Considering the successful initiatives developed by the organization, the acto can thrive by fulfilling three different roles: (i) as a forum for information-gathering and technology sharing; (ii) as a developer of common policies and commitments, and an inducer of specific projects and activities within this framework; and (iii) as an international voice for Amazonia. This chapter thus analyzes the acto according to these three roles. It therefore highlights some of the major gaps in the legal framework and institutional structure of the treaty, as well as the challenges faced. These are presented in an active perspective, directed at overcoming the problems, thus allowing the organization to fulfill these roles. In an attempt to look forward and beyond political borders, it suggests some changes to the structure broadly used among the Amazon countries. In addition, it specifically looks at the forestry agenda of the acto, and the projects and activities developed over almost 40 years of cooperation. The final section of this chapter presents the results achieved by Brazil in reducing deforestation. With a multi-strategy approach, the country successfully cut deforestation at a rate of 70 percent, with a series of lessons that can be learned by the Amazon countries, with the acto as a guiding organization. The chapter thus ends with the practical application of the possible roles for the acto according to this particular example. The final section leads to the following chapters, which look at the national initiatives in forest protection that fill the gaps of the international and regional systems.

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Should Forests be Regulated at the Regional Level? An Analysis of Forest Regulation at the Global, Regional, and National Levels

At its core, this question revolves around the concepts of national and regional balance and cooperation. Simply put, it makes more sense to set reasonable, periodically-assessed, cognizable goals for small-scale sovereign areas with well-planned implementation and stable funding than it does to prescribe well-meaning yet overbroad targets applicable to multiple regions across the globe untailored to individualized national/regional history or current circumstances. Although conservation of the Amazon ranks at the top of global climate policy aims, internationalization, as demonstrated by history, is in large part antithetical to the achievement of this goal. As the body of this text has demonstrated, conceiving of forest law solely as an “international forest regime” is fraught. Most importantly, it does not recognize or account for conceptual underpinnings of national and international governance. Democratically-structured representative governments enact federal legislation and formulate regulatory regimes in furtherance of policy priorities and choices. These policy choices are theoretically determined by the voice of the people through election processes and other established public participation mechanisms. Those choices are reflected in regulations, which smaller units of government then implement and comprise the legal codes of cities, states, and nations. Although the broad goals may be the same, the mechanisms and implementation on a national and local scale may differ. When examining the question of forest regulation at the regional level, a useful case study in overbroad global regulation is the current debate around the definition of “forest” itself in the Paris Agreement. Like so many other natural and ecological resources, the definition of forest depends on the means and ends of use/exploitation. Laws and regulations are based on drafting, construction and interpretation of language. The parlance, semantics, and characterization of what the resource itself is essentially define the universe of ­possibilities for regulation. Such characterization is inapposite across entities and illustrates the barriers to identifiable and enforceable global policy. The global level is essential to discuss solutions for global problems, but it has proven insufficient to halt deforestation, or face the challenges of climate change. On the other hand, central governments understand priority areas for actions and remain closer to the problem, making it easier to find immediate solutions, but are unable to effectively cope on their own.5 Indeed, 5 undp, Charting A New Low-Carbon Route to Development: A Primer on Integrated Climate Change Planning for Regional Governments 43 (Jun. 2009), available at http://www.un.org/

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­smaller-scale governance is not necessarily less challenging. National governance, lawmaking, and regulation are a multi-level, multi-faceted effort involving entities with vastly differing levels of access to information and resources available for implementation. This is ultimately the case regardless of the national entity under the microscope, regardless of what the level and extent of extralegal mechanisms involved. For example, the system of governance in the United States uses principles of traditional and cooperative federalism between the federal government, the several states, and local and municipal governments. There is a clear corollary here with emphasis on preservation of national sovereignty in regional governance mechanisms in Amazonia. As stated above, at face value it appears that Amazon countries have ­historically been faced with an agonizing choice: protect their forests or bolster socio-economic measures to fight poverty. These two goals have necessarily been siloed by the economics of global trade, and a long history of ­colonization, corruption, and exploitation of Amazonian countries and their resources, a description of which is beyond the scope of this book. The key point, as ­demonstrated by the primacy of dual principles of sovereignty (national ­sovereignty and sovereignty over natural resources) in the act, is how this ­conundrum translates practically into policymaking. Efforts at the regional level complement both local and global efforts.6 This  “siloing” effect is why a regional regulatory regime seems the most ­narrowly-tailored towards the goal of international afforestation, reforestation, and forest conservation generally. It sets forth general, overarching principles to guide individual nations’ policymaking, while leaving intact systems of ­national sovereignty to implement these principles. These smaller-scale ­systems can account for differences in governance, land use patterns, economics, and populations on a local and national level. Importantly, these can also more effectively involve local and indigenous populations; it is improvident and ultimately unsustainable to remove people from the equation of governance.

esa/dsd/dsd_aofw_cc/cc_pdfs/cc_sideevent1109/Charting_carbon_route_web_final_UNDP. pdf. 6 Kheng Lian Koh & Nicholas A. Robinson, Regional Environmental Governance: Examining the Association of Southeast Asian Nations (asean) Model in D.C. Etsy & M.H. Ivanova (eds), Global Environmental Governance 101–120 (2002). See also Maria Antonia Tigre, Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader, 5 Transnational Environmental Law 409–410 (2016).

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Regional initiatives are essential in strategic planning and can coordinate the governance of shared resources, such as water and forests.7 Cooperation is especially relevant to sustain shared ecosystems, like the Amazon rainforest.8 In addition, the regional level is well equipped to tackle transboundary harms such as climate change.9 Since the type of impact and the capacity to adapt varies across regions, solutions for common problems can be found within them.10 Regional strategies can prove more effective than global ones as countries share historical, cultural, ethnic and geographical similarities.11 Historically speaking, the act was kickstarted by a strong sovereignty ­impetus; Amazon nations had serious security concerns which act was able to address. The act’s conceptual structure – an umbrella agreement requiring additional smaller treaties – was based on a re-affirmation of national sovereignty and crafted through participatory involvement of all Amazon countries. Included in the articles of the act is the principle that each Amazon country has the right to manage its own natural resources. This follows several international global declarations concerning management of natural resources. ­Despite the overabundance of bureaucracy and lack of a body of substantive laws and regulations, it is instructive. A large part of sustainable and effective policymaking is being mindful of what history tells about a region’s governance structure. Without being both reflective of and responsive to a society’s value systems, problems will be encountered with effective enforcement. In any legal system, enforcement mechanisms for regulatory violations are a ­crucial part of the puzzle. Likewise, the Nationally-Determined Contributions (“ndcs”) of the Paris Agreement and the 2015 Sustainable Development Goals are significant in terms of illustrating the progress that can be achieved from allowing for sovereign governance within a global set of norms. Setting goals such as it is highly 7

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undp, Charting a New Low-Carbon Route to Development: A Primer on Integrated ­Climate Change Planning for Regional Governments 43 (2009), available at http://www .un.org/esa/dsd/dsd_aofw_cc/cc_pdfs/cc_sideevent1109/Charting_carbon_route_web _final_UNDP.pdf. Maurice Schiff and L.A. Winters, Regional Cooperation, and the Role of International Organizations and Regional Integration, World Bank Policy Research Working Paper No. 2872 (World Bank, July 2002). ipcc, Climate Change 2014: Mitigation of Climate Change – Contribution of Working Group iii to the Fifth Assessment Report of the ipcc 1123 (2014), available at https:// www.ipcc.ch/pdf/assessment-report/ar5/wg3/ipcc_wg3_ar5_full.pdf. Richard L. Ottinger et al., Options for Adaptation to Climate Change in K.L. Koh et al. (eds), Adaptation to Climate Change: asean and Comparative Experiences 329 (2015). Id.

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notable that in compliance with the Paris Agreement, all Amazon countries have submitted their ndcs. There was also a lot of participation of Amazonian countries in the unff12 Strategic Plan. This type of implementation not only encourages public participation of the sort which is needed to make any regulation or policy stick, but also ensures that stakeholders, indigenous groups, and civil society all have a meaningful voice next to corporate interests. The Terra Legal program and the Forest Code of Brazil present a pertinent case study of how national sovereignty and the history of private land tenure has clashed with sustainable forestry and shaped present-day conservation and land management enforcement mechanisms. In Brazil, data reveals that “… about 80% of deforested areas are within 30 km of official road,”12 much of it along the Trans-Amazonian highway as a result of government resettlement programs in the 1970s and 80s. These policies encouraged the clearing of forests by resettled urban dwellers in order to claim title to the land. Contemporarily, “… under the Terra Legal program, if property owners do not conserve sufficient forest cover, they are required to submit environmental compliance plans. If landowners and municipalities fail to meet these criteria, they can risk denial of agricultural credit and product embargoes.”13 However, recent changes in the Forest Code are rendering this somewhat unenforceable,14 ­illustrating the simultaneous importance of a broader system of regulation. It is important to note that policy choices are often made in response to data. That said, without studies of the condition of, reasons for, and ongoing rates of deforestation, it would be (and has been) quite difficult to formulate accepted regulations, which adhere to a normative value structure. Developing and maintaining a flexible and inclusive system of proportional data points enabling comparison and conclusions is challenging and requires, as discussed above, both political will and sustainable funding sources. These need to measure and analyze forests’ (i) contribution to national economies and more importantly in light of the inclusive and holistic nature of the new governance mechanisms, (ii) socioeconomic benefits that forest products provide. There is also a need (as stated in Update 2016 Point 2 to the New York Declaration on Forests), for a way to measure progress of implemented programs. This may also enhance financing possibilities. In fact, the 2016 Update on Goal 2 from the 2014 New York Declaration on Forests cites the need for “increased momentum 12 13 14

Yale School of Forestry & Environmental Studies, Global Forest Atlas, Forest ­Governance – Brazil, available at http://globalforestatlas.yale.edu/amazon/forest-governance/brazil. Id. Id. (explaining that recently-established reforestation exemptions for small landholders are resulting in increased rates of deforestation).

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behind programs that link landscape-level public programs paired with private-sector sourcing commitments.”15 A regulatory organizational philosophy structured around a shared environmental resource can work. There is a strong argument to be made that intergovernmental cooperation is necessary when regulating a transboundary ­environmental resource. There is a regional corollary in the gef Amazon Project, which manages the water resources among member states under the theory that the watershed is connected. If some of this same logic and principles were implemented when conceptualizing the Amazon rainforest, there may be ­enhanced preservation results. Positive results with the Forest Monitoring Project bode well for this type of approach. One cannot begin to formulate methods through which to fix something until one is aware of harm. Likewise, one cannot know how bad the damage is until a picture of the problem is made. Only then is it possible to formulate solutions. This basic principle encapsulates why data, and conceiving of ways to get data, are instrumental to the success of any regional Amazonian regulatory scheme. Data (such as that from the TerraAmazon Forest Monitoring Project and the ACTO’s Monitoring of Deforestation Project) provides exactly that picture, which is part of what makes it such a successful endeavor. This is an excellent example of success of regional initiatives over international hortatory declarations. As a key part of the Forest Monitoring Project, countries were empowered to construct their own national monitoring plans. This furthers the goal of accruing helpful statistics upon which to act, while the emphasis on ­national responsibility for national decision-making power also pays heed to the ­expressly-stated resistance of many Amazonian countries to perceived incursions on sovereignty. Compare the non-binding New York Declaration on Forests, to which only half of Amazon countries are signatories. This Declaration, in the tradition of past global climate conventions and summits, sets forth a grand aspirational timeline to cut and eventually end the world’s forest loss, and includes a voluntary Action Agenda. As has been demonstrated by history, this is difficult to scale down for both political and economic reasons. With a somewhat fragmented approach to regional governance among A ­ mazon countries, building tools to further institutional infrastructure at the national level is key to any other more broad-based and meaningful instrument of cooperation. 15

Climate Focus, Progress on the New York Declaration on Forests – Achieving Collective Forest Goals. (Climate Focus, nydf Assessment Coalition, Climate and Land Use Alliance and the Tropical Forest Alliance) 8 (2016).

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When coalescing a large international effort for any purpose, the various systems of economics and governance in each country necessarily present limits. However, they also present opportunities. National regulations on global markets play a part in disincentivizing certain illegal forestry practices  – ­Amazonian countries are constrained by national statutes in other countries regarding imports. Today Brazil must comply with the eu’s Forest Law Enforcement, Governance, and Trade law (flegt)16 and the us’s Lacey Act.17 Once a regional governance structure that comports with national policy interests, ngos and advocacy organizations on all scales can help shape law by facilitating and incentivizing forest-friendly regulations.18 The study of the historical development of the act/acto, as well as the development of International Forest Law, show that neither the global nor the regional structure has effectively reached a common solution to protect the region. Rather than competitive, the solutions are complementary, as there is no one single solution to protect Amazonia. Cooperation is needed at different levels.19 Ultimately, a regional system of regulation creates the necessary balance between national concerns/sovereign policymaking interests and the global guidance that is needed. 10.2

Is the acto the Appropriate Forum?

Regional cooperation cannot encompass the broad range of issues faced by Amazon countries. Regulation shall be promoted in a complimentary manner at the global, regional, and national levels. Nonetheless, there is indeed a regional role to be performed by a regional entity in forest regulation, especially in curbing deforestation in a shared ecosystem. Within this context, this

16

flegt Briefing Note 1, available at http://www.euflegt.efi.int/documents/10180/28299/ FLEGT+Briefing+Notes+1+−+What+is+FLEGT/8e6155fe-6a0e-4606-98d1-2aaa74160e26. 17 16 u.s.c. §§ 3371–3378 (2012). The first known law to ban trade in illegally-sourced wood products, the Lacey Act imposes strict liability penalties for dealing in illegally-sourced wood products. See generally, World Resources Institute, Forest Legality Initiative, u.s. Lacey Act, available at http://www.forestlegality.org/policy/us-lacey-act. 18 An example of this is Greenpeace’s 2006 Soy Moratorium, “an agreement between civil society, industry and government which prevents major traders from selling soy linked to deforestation in the Brazilian Amazon.” The Moratorium was renewed indefinitely on May 9th, 2016. See Rodrigo Estrada Patiño, Brazilian Soy Moratorium Renewed Indefinitely, http://www.greenpeace.org/usa/news/brazilian-soy-moratorium-renewed-indefinitely/. 19 Beatriz Garcia, The Amazon from an international law perspective 121 (2011).

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­chapter asks whether the acto is indeed the appropriate forum to induce regional cooperation, thus fulfilling the roles available for a regional organization. Albeit slow, cooperation in Amazonia has developed greatly. From treaties that defined borders and ensured free navigation within the Amazon Basin, the Amazon countries finally created a cooperative scheme for the region in 1978, through the adoption of the act. The arrangement has been constantly reevaluated and revised over the decades. ­Indeed, parties have repeatedly manifested their willingness to strengthen the treaty.20 A major structural development was adopted in 1998, through the approval of the Amendment Protocol, which created the acto, and in 2009, with revised internal regulations that provided for a more effective day to day and implementation of activities. The creation of the acto undoubtedly represents an advance in the institutional framework. In addition, cooperation in Amazonia moved away from developing projects one by one according to the donations received, without a larger plan, to developing strategic agendas that established short, medium, and long term policies.21 While the first strategic agenda was developed within the structure of the acto, the second one underwent a broad consultative process, thus adapting the regional plans to the national needs of countries. With these advances, the acto moved away from being a donor-driven organization, and became a member-driven organization. The change was significant. It meant that the organization moved away from advancing projects one by one according to the funds received, and based on the interests of the organization that provided it. Rather, it developed a broader agenda, with specific goals in the short, medium and long terms. Afterwards, it looked for funding opportunities to specifically finance the actions previously identified, according to the needs of member countries. The problem, however, remains the insufficiency of the funds received, as will be noted in the following sections. Through each development, member countries increasingly showed a ­political will to strengthen the institution, thus rendering it more effective in addressing common issues in Amazonia. Indeed, a close analysis of the political commitments of member countries through the declarations adopted by the mmfa and the heads of state show how countries constantly reinforced their determination to continue a regular collaboration through the act. 20

21

Id., at 312–313. Including e.g., declarations made and resolutions adopted at the iii mmfa (Mar. 6–7, 1989), v mmfa (Dec. 4–5, 1995), vi mmfa (Apr. 6, 2000), vii mmfa (Nov. 22, 2002), viii mmfa (Sep. 14, 20014). See the strategic agendas developed during the fourth and fifth phases, Sections  8.2 and 9.2.

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The  creation of the Permanent Secretariat and the establishment of compulsory financial mechanisms have showed a strong political commitment, emphasized by more practical efforts by each one of the member countries. In this sense, there is no doubt that the Amazon countries want to be cooperative, have joint policies and induce both socio-economic development and sustainability in the region. In addition, through the political declarations of heads of state and foreign ministers, Amazon countries have constantly reinforced their commitment to environmental conservation. More recently, states also showed an increasing concern about the local populations, and the need to eradicate poverty in Amazonia, adding a social aspect to the agenda. ­Sustainable development thus became a staple of regional cooperation, leaving no doubt about the commitment from countries to the Amazon ecosystem and their populations. Despite the political will, the structure of the treaty remains insufficient. In an attempt to answer the main research question of whether the acto is the appropriate forum to induce regional cooperation in sustainable development, and on a forestry policy specifically, this section looks at the main challenges faced by the organization, namely the weak normative and institutional structure of the treaty. Subsequently, the role played by other regional organizations is briefly analyzed, supplementing the analysis of the acto with a broader view of the additional existing options. Finally, successful roles played by the acto are noted, exemplifying ways in which the organization has strengthened its regional position throughout its decades of existence.

Challenges in Implementation: The Weak Normative and Institutional Structure of the Treaty Despite efforts in becoming more environmentally friendly, thus protecting the Amazon ecosystem, Amazon countries still face severe challenges in balancing conservation with economic development. The growth of the timber, mining, agriculture and cattle ranching industries reflects economic pressures over the region. At the same time, large protected areas were established throughout the region, showing a national willingness to promote conservation. These, however, were not sufficient to curb deforestation, showing how the pure establishment of protected areas is not enough to guarantee conservation.22 Bertha Becker briefly explains the constant balance sought by Amazon countries, and the need for an integrated approach:

22

Bertha K. Becker, Organização de um Model Sustentável para a Amazônia – A otca e o Futuro da Cooperação Amazônica 3 (2011), available at http://www.cnpp-otca.gob.pe/ archivosFisicos/Organizao_de_um_Modelo_Sustentvel_para_a_Amaznia.pdf.

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In short, the productive organization of the Amazon is weak. And, consequently, the region cannot fully develop and integrate. Devoid of complete chains of production and a network of cities that boosts the economy and integration, the processes of expansion of the mobile frontier prevail, destroying nature. A huge soybean-cattle belt surrounds the dense forest, setting up a conflict between two modes of land use and ecosystems, a current one, and another desired use for the future (Becker, 2005): (a) the current use for commodities led by large international and national conglomerates and based on powerful logistics aimed at continuously expanding production and reducing transportation costs; (b) the use that points to the future, with a model capable of generating income and work without destroying the forest, which can only be achieved with the assistance of science, technology, and innovation, and appropriate institutions.23 Within this context, the acto’s role in the sustainable development of the region remains in question. Indeed, it is a privileged forum for the harmonization and implementation of multilateral agreements. However, it still falls short of expectations. Problems include political challenges, conflicts of interests, financial ambition of countries, as well as biological, ethnic and social diversities between them. Even after almost 40 years of the signing of the act, and nearly 15 years since the acto was established, it remains a new institution trying to consolidate itself. It lacks financial resources and faces many internal difficulties. Decision-making is slow and its international projections fall short of what is expected of an organization that deals with subjects as relevant as those concerning the Amazon. Overall, it is still incapable of fully satisfying the needs, conflicts and goals of the transnational region.24 23

24

Translated from Portuguese: “Enfim, é fraca a organização produtiva da Amazônia. E, conseqüentemente, a região não consegue se desenvolver nem se integrar plenamente. Desprovida que é de cadeias produtivas completas e de uma rede de cidades que impulsione a economia e a integração, nela dominam ainda os processos de expansão da fronteira móvel destruindo a natureza. Um imenso cinturão soja-boi cerca a floresta densa, configurando um conflito entre dois modos de uso do território baseados em formas de produção e ecossistemas distintos, um uso atual e um desejado para o futuro (Becker, 2005): (a) o uso atual para commodities comandado por grandes conglomerados internacionais e nacionais, baseados em poderosa logística que visa expandir continuamente a produção reduzindo os custos de transporte; (b) o uso que aponta para o futuro, com um modelo capaz de gerar renda e trabalho sem destruir a floresta, que só poderá ser conseguido com o auxílio da ct/I e de instituições adequadas.” Id., at 130.

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Undeniably, the normative and institutional structure of the treaty is greatly flawed. Due to the disproportionate weight placed on sovereignty, the treaty actually has almost nonexistent obligations, compliance or enforcement mechanisms. It lacks precise commitments, in the form of legally binding or nonbinding agreements, to put its objectives into effect.25 Although the treaty envisaged the implementation of operational agreements and understandings, or other pertinent legal instruments to clarify or put into effect its general provisions,26 there has been only one amendment in almost four decades. Apart from the duty to exchange information, no other obligations are foreseen under the treaty, and none was developed after it came into force.27 While the institutions within the treaty’s framework have greatly developed throughout the years, they have functioned on a limited scale, or have been inoperative for periods of time. Meetings have been held intermittently, affecting implementation.28 As observed in Chapters 5 through 9, the political momentum and the euphoria caused by specific advances in collaboration often wound down after a couple of years, reinforcing the process of discontinuity and ineffectiveness. The challenges faced are often basic. As seen in Chapter 4, the treaty applies to the “Covenant Amazonia” rather than Pan-Amazonia, given that French Guyana was excluded from the treaty despite sharing the Amazon biome.29 The territorial application of the treaty was legally defined,30 and extends beyond the Amazon Basin and/or the Amazon rainforest. However, member countries still have not uniformly defined internal rules that clearly outline the portions of their territories that correspond to the national Amazonia.31 Indeed, Guyana and Suriname do not have national rules, and the areas considered Amazonia are virtually all the national tropical forests. With the current framework, the region faces at the same time the challenge of being

25 26 27 28 29

30 31

Beatriz Garcia, supra note 19, at 313. Treaty for Amazonian Cooperation (Amazon Cooperation Treaty, hereinafter act), 17 ilm, 1045 (July 3, 1978). Brazil, Federal Decree No. 85050 (Aug. 18, 1980), art. 1. Beatriz Garcia, supra note 19, at 313. Id., at 313. Paulo Henrique Faria Nunes, supra note 2, at 224. (citing franco filho, Georgenor de Sousa. Relações de trabalho na Pan-Amazônia: a circulação de trabalhadores. São Paulo: ltr, 1996.) act, art. ii. Paulo Henrique Faria Nunes, supra note 2, at 224 (citing nunes, Paulo Henrique Faria. Dificuldade de demarcação da Pan-Amazônia e dos territórios indígenas na região. Textos e Debates, Boa Vista, v. 2, n. 26, pp. 7–28, 2015).

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o­ ver-inclusive and u ­ nder-inclusive. It includes the entire country, but in the absence of regulation, none of it is properly protected. As briefly explained in Chapter 1, one of the biggest challenges for Amazon scholars is defining the geographical limits of Amazonia. Article ii of the act leaves its territorial scope open-ended, by applying the treaty to (i) the territories of the Contracting Parties in the Amazon River Basin; (ii) to any territory, by virtue of its geographical, ecological or economic characteristics, which is considered closely connected with that Basin.32 The broad scope has often been highlighted as a particular weakness of the treaty in the discussions and meetings within the act’s framework – most particularly in 1992 and 2005. However, no consensus has ever been reached. Rather than a formal distinction or an academic discussion, the consensus matters for the political processes within the region. Indeed, the social, economic and ecological aspects of the territory vary when analyzing policies for deforestation, land use, protected areas, and climate change, among others. As a consequence, the tools that contribute to the sustainable management are negatively influenced.33 The lack of uniform criteria brings many practical difficulties to scholars and policy-makers alike, as it makes it harder to integrate the region. Indeed, the lack of an accepted definition of Amazonia hinders implementation of its programs.34 Since the treaty is valid within the boundaries of Amazonia, rather than on the countries’ territories as a whole, properly establishing the legal boundaries of the region is paramount. ­Countries, ­however, use different standards and thresholds to define the Amazonian territory.35 Another challenge faced relates to the decision-making system, which remains the same since the signing of the Amazon Pact. It requires unanimity as an indispensable condition for the approval of decisions and resolutions. As a result, these are often limited to political statements with few practical effects. At the time it was adopted, the act was negotiated to address some specific issues: it was a way to affirm the sovereignty over the territory and the natural resources it contains, ensure the continuity of economic projects in the region, and end the threats of internationalization of Amazonia. There was a regional 32 33 34

35

act, art. ii. Rosalía Arteaga Serrano, Prefacio in European Comission and otca, Una Propuesta para la Definición de los Límites Geográficos de la Amazonía v (2005). European Commission (ec) and acto, A Proposal for Defining the Geographical Boundaries of Amazonia, Synthesis of the results from an Expert Consultation Workshop organized by the European Commission in collaboration with the Amazon Cooperation Treaty Organization (jrc), Ispra, 7–8 June 2005, p. 1, available at http://publications.jrc .ec.europa.eu/repository/bitstream/JRC68635/eur%2021808%20en.pdf. Id.

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will to provide a response to the international community that would ensure the exclusivity of the management of Amazonian problems and promote environmental protection.36 However, these have developed throughout the years. Although the goals of the institution have changed, it still relies on a unanimous decision by all members to undergo any policies. This mechanism is based on the principle of equality among members. Although the equality ensures the sovereignty over each country’s territory and resources, it renders the organization and its policies unenforceable, and requires a much more cumbersome process to reach any conclusion. Creating the acto reassured these principles, since the organization does not have any supranational power and still requires a specific authorization of all Member Countries for each decision taken.37 The excessive concern with sovereignty may have been the cause for the slow development of the institution as a whole. As the maximum body at a normative and political level, which decides on all major policies within the act’s framework, it is reasonable to require the Meeting of the Ministers of Foreign Affairs (mmfa) to reach unanimous decisions on all matters. Likewise, the acc, as a body with normative and executive capability that serves as a bridge between the mmfa and the pncs, reasonably requires unanimous decisions to go forward. Yet the ccacc is a consultative and auxiliary body with no decision-making power. Nonetheless, it is still required that all members are present at sessions and all decisions are adopted unanimously. As a consultative and auxiliary body, all ccacc’s actions follow the major decisions by the acc. These, in turn, are major policies already agreed upon by all States. As such, the ccacc only makes minor decisions on how these major policies shall be executed. Since these decisions are minor, meetings are held once a month, allowing for a constant flow of information between Member Countries. By also requiring a unanimous decision by the ccacc, the acto is requiring member countries to agree on the same policies twice, through a counterproductive system that wastes resources. In this sense, it would be reasonable to alter the unanimous voting system within the ccacc to a majority voting system, to allow a more flexible and rapid execution of policies. Since the ccacc’s actions are limited by major policy decisions by the acc, member countries would still be required to indirectly sign off on the ccacc’s actions. At the same time, establishing a 36 37

Paulo Henrique Faria Nunes, supra note 2, at 223. Ernesto Roessing Neto, Brasil, Bolívia, o Tratado de Cooperação Amazônica e as Hidrelétricas do Rio Madeira, Revista da Faculdade de Direito da ufmg No. 51, 80–81 (Jul–Dez 2007), available at http://www.direito.ufmg.br/revista/index.php/revista/article/viewFile/51/48.

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majority voting system would allow a quicker execution of the policies agreed on, thus ensuring a more effective acto. Likewise, the Permanent Secretariat (ps) should be given a broader authority to ensure a more effective day-to-day operation. Although the ps is the legal personality of the acto, and can sign contracts and agreements with third parties, these are subject to a unanimous decision by all Member Countries. The ps executes cooperation actions as directed by the mmfa and the acc. In addition, these decisions shall be executed according to the recommendations of the ccacc. In this sense, every action by the ps has to be previously authorized by all Member Countries, either directly or indirectly through the mmfa and acc, and subject to recommendations by the ccacc. Its authority is therefore only apparent, and all minor day-to-day decisions have to go through a complex system of approval to go forward. By establishing clear limits, the Secretary General could have a more ample decision range, therefore only subjecting major decisions to a unanimous voting. Establishing a majority voting system on executive bodies without major decision-making power such as the ps and the ccacc would ensure more efficiency and alacrity to the acto without compromising the sovereignty of each country or the equality among them. It would thus also allow a more ample cooperation among Member Countries, thus reinforcing the basis of the act’s framework. Like the weak and dependent institutional structure, the organization fails to establish specific deadlines to achieve the goals proposed. Indeed, as will be better analyzed in the following chapter, an obligation to cooperate is only required for the exchange of information. Nonetheless, several challenges that impact two or more countries would benefit from a more stringent obligation; including combating forest fires, illegal trade of timber and wild species, the management of migratory species, shared ecosystems, international rivers, transboundary protected areas, and transboundary pollution.38 The lack of commitments and deadlines is the main difference between the acto and other initiatives in South America, such as can and mercosur.39 Indeed, the act framework offers limited means and little practical guidance as to how to achieve the environmental objectives defined in them.40 In theory, stronger institutions and precise commitments would render the regional legal system in Amazonia more effective. A treaty is made effective when States fulfill the obligations defined in it. Nonetheless, effectiveness does 38 39 40

Beatriz Garcia, supra note 19, at 307. Paulo Henrique Faria Nunes, supra note 2, at 227. Beatriz Garcia, supra note 19, at 307.

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not equal compliance.41 A State can comply with a treaty that remains ineffective for failing to achieve its objective, ameliorating the problem that led to its creation. Within this context, it is debatable whether legally binding commitments are more effective.42 The development of International Environmental Law shows that the answer is not always straightforward. With a constant concern for sovereignty and for the added obligations that could restrict their freedom, States have increasingly opted for nonbinding commitments. The situation is similar at the global and regional levels, and includes several different areas within environmental law, including, most predominantly, with climate change. Some studies show that where compliance with legally binding obligations was high, their influence on behavior was low.43 With binding commitments, States have a tendency to carefully negotiate and consent with obligations easily complied with, leading to a “lower common denominator”. On the other hand, nonbinding legal agreements with more ambitious goals may lead to a low compliance, but have a greater influence on behavior. The study favors soft law, and the argument can be used for International Environmental Law, International Forest Law, or regional cooperation between ­Amazon countries.44 Precisely due to the boosted role of sovereignty and the concerns of the hegemony of some States within the regional cooperation framework, there are no enforcement mechanisms in the treaty. Despite the ambitious goals, it fails to provide mechanisms capable of substantial action. Critics argue that the act was mainly a “lengthy and detailed agreement to agree.”45 While it appears to offer the potential for substantive cooperative action, its provisions are rather vague and noncommittal.46 Although the original main goal of the act was to ensure each country’s sovereignty over the Amazon region, the acto’s current goal is to promote a strategic sustainable development of its resources and population. Sovereignty as a guiding principle meant both over the territory itself, and over its natural resources. The treaty thus ensured that each country could develop the region as it saw fit. Currently, however, principles of environmental protection and 41 42 43

44 45 46

Id., at 307. Id., at 308. Id., at 309 (citing a study sponsored by the International Institute for Applied System Analysis (iiasa), entitled Implementation and Effectiveness of International Environmental Commitments). See the next chapter for an analysis of the act as “soft law”. David Ware, The Amazon Treaty: A Turning Point in Latin American Cooperation?, 15 Tex. Int’l L.J. 117 (1980). Id., at 119.

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sustainable development have limited the countries’ actions through a sovereign responsibility to protect the region. Indeed, sovereignty over natural ­resources has exhaustively been debated in international forums, and there is a solidified interpretation that it is ensured, but limited to the scarce availability of natural resources.47 The coordination of policies and the creation of mechanisms to solve arising transnational problems may lead to a dependence of states on their counterparts. States become more vulnerable regarding the actions taking place in other member states. Within this context, regional organizations are likely to create mechanisms to provide compliance of norms and values. By assuming a commitment itself, a regional organization consolidates the commitments from national countries. If provisions of the regional organization are violated, financial and reputational costs are imposed on the member states. The ­participation in a regional organization itself can be a form of international recognition of a country’s commitment, and can lead to acceptance in the ­international society.48 For example, mercosur was responsible for consolidating democracy in the member states. In order to fulfill the goals of the act and bring them to practice, projects are developed within its framework. It is important to note that the act ­expressly states that the projects development within the cooperation framework shall not be conducted if detrimental to undertakings executed within the members’ respective territories.49 This requirement is also a premise of the equality principle, since no acto project would be approved if it could potentially have a negative impact on other members or their national projects. In this sense, most of the practical development of the act and its projects still remain largely based on research and exchange of information. Some current projects will be briefly explained, to illustrate what the organization has in fact been doing.50 However, despite the efforts, the great majority of projects approved by the acto have not been executed. As a result, there has been little practical impact of the act due to excessive number of projects approved without technical and financial capacity, and institutional weakness.51 Due to the act’s status as an umbrella agreement, specific obligations are c­ onstantly negotiated to 47 48 49 50 51

Solange Teles da Silva, O direito ambiental internacional 7 (2009). Tanja A. Börzel, Lukas Goltermann and Kai Striebinger, Roads to Regionalism: Genesis, Design, and Effects of Regional Organizations (2016). act, art. xvi. For current projects, see the previous chapter. Beatriz Garcia, supra note 19, at 112, footnote 179.

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broaden the treaty’s scope and ensure that Amazon issues are addressed. But without a stronger core and additional flexibility, the acto will continue to remain mainly a forum of discussion. An analysis of the treaty’s and institution’s development, and of the recognition of a shared52 and historical53 responsibility over the Amazon and need for common policies reveals that this is not the Member Countries’ intent. The original language of the act has no explicit provision addressing ­funding and financing. Since the organization largely relied on funds from international institutions, which took from one to three years to become available, most activities planned under its framework had limited development.54 The funding mechanism was therefore unclear and, as a consequence, insufficient. For the ps to have full managerial capacity, a stable financial support mechanism by the member countries was indispensable. In this sense, by the occasion of its adoption, the act members agreed to a system of compulsory contributions proportional to each country’s level of development. As such, member countries have annual quotas,55 divided into four categories of contributions: (i) Brazil, with 70 percent of the total value of contributions; (ii) Colombia, Peru and Venezuela, with 40 percent; (iii) B ­ olivia and Ecuador, with 18.57 percent; and (iv) Guyana and Suriname, with 5.71 p ­ ercent.56 Countries can also make extraordinary contributions according to their capacity. However, these dues only cover the yearly costs of maintaining of the ps, and specific projects still rely on external funding. Many of the activities are financed with money from international organizations (such as the European Union, various entities of the un, the Inter-American Development Bank, and the Organization of American States). Consequently, the acto is constantly studying alternative mechanisms for funding in order to move beyond acto’s dependence on foreign funds. In order to facilitate contributions, the acto has developed general guidelines. These guidelines aimed at establishing additional sources of funding for the organization, through voluntary ­contributions by public or private companies which value the Amazonian culture, and administrative taxes from executing international cooperation projects of external financing sources or from one or more member countries, in addition to

52 53 54 55 56

iii mmfa (1989). res/v MRE-TCA/1, adopted in the v mmfa, in Lima, Peru, on Dec. 5, 1995. Beatriz Garcia, supra note 19, at 117. First established in 2000. res/vi mre-tca/6, adopted in the vi mmfa, in Caracas, Venezuela, on Apr. 6, 2000. res/x MRE-OCTA/4, adopted in the x mmfa, in Lima, Peru, on Nov. 30, 2010.

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v­ oluntary contributions by member countries to finance activities and specific strategies.57 Funding and financing is therefore one of the biggest problems of the ­organizational structure and development. Although the basic activities are covered by the contribution of member countries, the development of projects and measures still largely depends on external funding, which is often irregular and unreliable. Traditionally, funders have had great control over the ­substance of projects, and the organization was traditionally donor-driven, ultimately subverting sovereignty. For the past years, however, there has been a strong movement towards transforming the organization from donor-driven to member-driven, leaving it up to member countries to ultimately choose how to invest the donations received. Nonetheless, the current structure still fails to achieve this goal. Ideally, the acto would build a regional fund for Amazonia, following the same model as the Brazilian Amazon Fund,58 managed by bndes. With donations directed at a general fund, members would have full control over where to invest the sources. Finally, there still isn’t a conflict-resolution mechanism for when countries are not in complete agreement. Whenever a country undergoes activities that have transboundary effects, the act has no internal mechanism to allow for a cooperative way to solve the issue. For example, Brazil’s Jirau hydroelectric power plant had potential effects on the waters of Bolivia. Although no mechanism exists within the act’s framework, the organization could still be used as a forum for discussion in cases such as this, to invite the participation of affected countries. In addition, a dispute resolution mechanism based on ­negotiation could be created to address problems through a cooperative scheme. Indeed, International Law can be used in such circumstances. Also, national law provides mechanisms to question projects in local courts. However, given the transboundary effects of the Amazon Basin and rainforest, it is essential that such a system be created at the act’s framework, to induce a dialogue and provide for a more sustainable Amazon. Despite inter-institutional efforts on coordination, independent initiatives for environmental protection often predominate. It seems like countries still prefer to make their own decisions without cooperating, thus (re)enforcing their sovereignty. Common policies are almost nonexistent. While the Strategic Agenda establishes goals in a wide array of themes, these are often not integrated to the economic agendas of each country. In addition, countries have 57 58

res/xi MRE-OCTA/03, art. 1, adopted in the xi mmfa, held in Manaus, Brazil, on Nov. 22, 2011. The Brazilian Amazon Fund will be properly explained in Chapter 13.

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rarely consulted one another before making decisions that could potentially have transboundary effects. There is, indeed, no development model for the region. Amazonia always developed through specific projects that addressed national needs, instead of addressing the needs of the region as a whole. Conflicts therefore arose due to the disputes of land and the uses of natural resources. However, due to sovereignty concerns, it is unlikely that the Amazon countries would accept a global treaty dealing with Amazonia.59 Indeed, States would probably reject an instrument of global application. Ensuring sovereignty was constantly a main concern. Sovereignty was expressly established in the language of the treaty,60 and reinforced in the beginning of almost every political decision adopted within its framework. For this reason, efforts should go towards improving the current regional cooperation structure, rather than suggesting a new one altogether. Despite a far from ideal historical development, there are still several advantages in the current structure.

The Complementary Role of other Regional Organizations in Amazonia Considering the role of Amazonia in Latin America, it should be expected that the acto would fulfill a leading role in regional cooperation in Latin America. Nonetheless, the most successful attempts at physical integration exclude Amazonia. While these regional organizations did not have an environmental focus at first, they became increasingly active on the subject, including by adopting enforceable commitments towards environmental preservation. Like the act, the oas put more emphasis on environmental protection after the 1992 unced. It created the Inter-American Committee on Sustainable Development in 1996, as a subsidiary body of the Inter-American Council for Integral Development, which is responsible for formulating oas’ sustainable development policy.61 Of note, oas carried out the Inter-American Biodiversity Information Network (iabin), aimed at the standardization of national and subnational databases on species and specimens, ecosystems, and protected and pollination areas.62 In addition, the Andes Amazon Protected Areas Database (aapad), involving the eight Amazon States, created an information system to maintain a database containing information on the ­situation 59 60 61 62

Beatriz Garcia, supra note 19, at 122. act, art. 4. oas, ag/res. 1440 (xxvi-O/96), Sustainable Development, adopted at the Eight Plenary Session held on June 7, 1996. oas, Biodiversity, The Inter-American Biodiversity Information Network (iabin), http:// www.oas.org/dsd/Bio-Proj-Sum.htm.

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of ­protected areas in the Andean-Amazon Basin region.63 The oas is also involved in the water management project in the Amazon, financed by the gef, and conducted in partnership with the acto and unep.64 The Andean Community (can), has largely developed its normative and institutional frameworks in the past years. In a similar structure as the act, the major permanent institutional bodies comprise the Andean Presidential Council, the Andean Council of Foreign Ministers, and the Andean Community Commission.65 However, decisions by the political organs are binding and directly applicable to the States’ national legal systems. In addition, the organization includes the Andean Community Parliament, which represents the nations of the member States as a deliberating body under can.66 A ­judicial body was also set up by the 1979 Treaty Creating the Court of Justice of the Andean Community (tccj), which is competent to declare the nullity of decisions, resolutions, and agreements adopted by the member States, to provide authoritative interpretations of can law, and declare noncompliance with can legal obligations. The jurisdiction of the Court of Justice of the Andean Community (cjac) is binding on can member States.67 can has approved a number of decisions in environmental law, creating a comprehensive ­subregional regime in areas such as biodiversity, agriculture, industrial, and intellectual property rights.68 To ensure implementation of the several regulations on environmental matters, can has created specific institutions such as the Andean Committee on Genetic Resources,69 the Andean Committee of ­Environmental Authorities,70 and the Council of Ministers of the Environment and ­Sustainable Development.71

63 64 65 66 67 68 69 70 71

Permanent Council of the Organization of American States, Committee on Hemispheric Security, oea/Ser.G, cp/csh-951/08 corr. 1, February 25, 2008. See Chapters 8 and 9, above. Beatriz Garcia, supra note 19, at 131–132. See Andean Pact or Cartagena Agreement, 9 ilm 910. 1979 Treaty Constituting the Andean Parliament, http://www.congreso.gob.pe/parla mento-andino. 1979 Treaty Creating the Court of Justice of the Andean Community (tccj), 18 ilm 1203, amended by the Chochabamba Protocol of May 28, 1996. Beatriz Garcia, supra note 19, at 132; 133. Cartagena Agreement Official Gazette, no. 213, July 17, 1996. Decision no. 425, Creation of the Andean Committee of Environmental Authorities, ­Cartagena Agreement Official Gazette, no. 347, June 17, 1998. Decision no. 596, Creation of the Andean Community’s Council of Environment and ­Sustainable Development Ministers, Cartagena Agreement Official Gazette, no. 1092, June 16, 2004.

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The Caribbean Community (Caricom), including the Caribbean Common Market, was set up in 1973.72 There is no single organ dealing with environmental protection. However, several institutions, such as the Caribbean Disaster Emergency Response Agency, and the Caribbean Meteorological Institute, deal with environmental matters.73 The Common Market of the South (MERCOSUR) was established in 1991 to create a common market, with free movement of goods, services, and factors of production among countries.74 MERCOSUR’s bodies have decision-­making power.75 In addition, there is a dispute settlement mechanism, including a ­Permanent Court of Appeal based in Asunción.76 In 2005, the ­M ERCOSUR ­Parliament was created.77 States are under the obligation to incorporate ­M ERCOSUR’s law into their domestic legal system, and may incur in responsibility if they fail to do so.78 Like the oas, MERCOSUR has increasingly voiced environmental concerns. Indeed, the organization has developed basic guidelines of ­environmental policy,79 and has placed the environment as a priority issue in its agenda.80 In 2001, it adopted the MERCOSUR’s Framework Agreement on the ­Environment.81 Indeed, it has adopted several agreements on specific environmental matters, including with third-party States.82 Amazon countries still give Amazonian cooperation a secondary role, ­disconnected with the strategic relevance of the region.83 Diplomacy in ­Amazonia often varies between periods of sudden revising, relaunching, or strengthening the treaty, with longer periods of a lack of action at all.84 Each new phase of development starts with a renewed political commitments 72 73 74 75 76 77 78 79 80 81 82 83 84

1973 Treaty Establishing the Caribbean Community (Treaty of Chaguaramas). 946 unts 17, entered into force on August 1, 1973. Beatriz Garcia, supra note 19, at 137–139. 1991 Southern Common Market Agreement (Treaty of Asunción), 30 ilm 1044. Article 2, Additional Protocol to the Treaty of Asunción on the Institutional Structure of MERCOSUR, Protocol of Ouro Preto, 34 ilm 1248. 2002 Olivos Protocol for the Settlement of Disputes, 42 ilm 2. Protocolo Constitutivo del Parlamento del mercosur, Decision cmc N. 23/05. Beatriz Garcia, supra note 19, at 142. Directrices Básicas en Matéria de Política Ambiental, mercosur/gmc/res 22/92, http:// mercosur.int/msweb/portal%20intermediario/es/index.htm. mercosur Secretariat, Medio Ambiente en el mercosur, 3 Serie Tematica 16 (2002). ­Declaration of Taranco. cmc Decision N. 02/01. Beatriz Garcia, supra note 19, at 142–143. Paulo Henrique Faria Nunes, supra note 2, at 222. Id.

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t­owards regional cooperation, which withers down as the period progresses. However, the main institutional weakness of those agreements is that these do not include all Amazon countries, and are therefore not applied throughout the region. Successful Roles Developed by the acto Despite the grim scenario, and the many difficulties observed, there are still some positive aspects of regional cooperation. The organization functions as a coordinating agency of technicians and experts, financed by quotas from countries, and resources from international cooperation and international ­agencies. It organizes regional and international symposiums, seminars and workshops. It develops ambitious goals, but with the lack of an actual commitment of countries, technical and financial resources, projects face many ­challenges in implementation.85 One treaty alone cannot solve complex and long-lasting problems, such as deforestation and climate change.86 But ­Amazon countries continue to reaffirm their willingness to entrust the acto with a prominent role as a forum for cooperation. The act has a unique position to promote regional cooperation. It is the only international treaty that involves all Amazon States with the purpose of protecting the environment. Indeed, as Garcia explains it: Cooperation can be achieved among the Amazon States at different levels and in various ways. One way to enhance cooperation and ultimately improve the effectiveness of the international legal system of the A ­ mazon is by strengthening the 1978 act. When compared to other international legal instruments, this treaty is in a better position to foster regional cooperation. It is the only treaty to involve all Amazon States with the specific objective of achieving the conservation and rational use of the region’s natural resources. Therefore, it is the ideal forum where norms and policies applicable basin-wide can be negotiated, implemented, and enforced.87 It could, therefore, be an instrument of cohesion among different agreements and institutions at all levels in matters related to the Amazon.88 The act/acto has the advantage of almost 40 years of diplomatic history, an institutional 85 86 87 88

unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 97 (2009). Beatriz Garcia, supra note 19, at 122. Id., at 311. Id., at 122.

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structure that was perfected over that period, and a permanent secretariat that manages cooperation. The ps represents the act’s major strength, as a factor of cohesion among dispersed instruments and institutions operating at different levels. With legal personality to represent all Amazon countries, it understands the issues at stake and provides joint solutions to environmental problems.89 The structure of the acto, although deficient, already provides a ­cooperative forum of discussion. As such, it can be used as a basis, and improved to reach this goal. It is better to alter the current framework rather than create a brand new one. Indeed, the act has had some successful examples of positive cooperation, such as the Tarapoto Process, the Monitoring Project, and the gef Amazon Project, as will be highlighted in the following section. However, it has yet to achieve a level of cooperation that effectively ensures environmental protection. Although it underwent a series of processes to strengthen the institution, further strengthening is needed to achieve cohesion and effectiveness in the efforts to protect the Amazon. Member countries need to give the act the value it deserves, recognizing it as a key instrument for the international protection of the Amazon, rather than a mechanism that serves each of their own individual purposes. The act/acto can contribute to properly shape one of the main ecosystems in the world, within an international context characterized by political challenges, unequal distribution of development costs, and economic and political crises. Within the context of the environmental challenges currently faced around the world, Amazonia can become an example of real commitments to sustainable development that combines improved conditions of the population with environmental protection and an improved joint capacity in the global context.90 What was once unreconciled is now possible. However, the sustainable development of Amazonia is only possible with the progress of all Amazonia, in a cooperative scheme that jointly reinforces the control over resources, and ensures legitimate values can be fruitful in the global context.91 However, it is essential to move away from the diplomatic discourse to the practical examples of common solutions, using the acto as a mechanism to finding local, regional, and international cooperation, in equitable and equilibrated efforts that reflect the goals of all Amazon countries.92

89 90 91 92

Id., at 311–312. Id., at 44. Id., at 45. Id., at 45.

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How Can the acto Achieve Tangible Results?

The question remains whether the treaty will eventually get enough support to become a more effective instrument. acto members need to be willing to make it agile and effective. A more operational legal regime is needed. Institutional challenges faced throughout the development of the treaty, and the ­constant need to relaunch the treaty may mean there is no ability or willingness to make the acto more effective.93 However, the political will remains. Within this context, two questions are central to the role of the acto in regional cooperation for sustainable development: whether the acto can gather financial and human resources, as well as ensure a strong political support; and, in the case it cannot, whether it can still fulfill some essential roles in the condition it currently is in. In light of the current needs of regional cooperation, and the existing institutions that promote it within the Amazon region, the acto remains the best alternative. Cooperation between Amazon countries within the act’s framework has the potential to become an example of contribution that practically translates the concept of sustainable development in one of the most biodiverse ecosystems on Earth.94 Ultimately, the treaty can be used as a factor for cohesion among many efforts in sustainability, and complement actions at the national and global levels.95 The acto could thus act as an intermediary, gathering information and experiences, providing training, and overall guidance as countries help each other through common problems. The acto often defines itself as a strategic mechanism at the service of its member countries, in the defense of common interests, as a forum for consultation and consensual articulation of regional positions in global negotiations. On the other hand, the organization plays an important role in fostering horizontal cooperation between countries, which favors exchanges of information, as well as greater interaction with other regional and international bodies. In analyzing the position of the acto, and, more specifically, that of the ps, the 2009 Agenda provided a broad list of roles it must perform. Indeed, the revised ps must function as a (i) liaison, fostering consensus among members to develop activities, programs and projects that involve national, regional and international players; (ii) facilitator, establishing spaces for political and 93 94 95

Beatriz Garcia, supra note 19, at 121. Antonio José Ferreira Simões, Eu Sou a América do Sul 44 (2012), available at http://funag .gov.br/loja/download/914-Eu_sou_da_America_do_Sul.pdf. Chapter 12 will present some case studies from Amazon countries, showing some best practices that could be replicated at the regional level.

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technical dialogue among the member countries to ensure compliance with its mandates, including topics of interest of international forums like those related to climatic change, forests, biological diversity and trade of endangered species; (iii) coordinator, regionally managing and administering the execution of activities, programs and projects based on the mandates received from the member countries; (iv) arranger of regional and international cooperation support, identifying financial cooperation sources to develop specific regional activities commissioned by member countries based on their priorities, with full respect for national sovereignty; (v) generator of regional information, producing reference regional information to propose analysis scenarios for the Amazon through experience and knowledge shared by the Member Countries; and (vi) promoter of actions to strengthen institutional capacity within the Member Countries according to their needs.96 The list is broad and ambitious. Considering the limited resources, and the inability to address all issues highlighted as important by countries, this section notes three leading ways in which the acto can thrive: as a (i) forum for information-gathering and technology sharing; (ii) developer of common policies and commitments, and an inducer of specific projects and activities within this framework; and (iii) international voice for Amazonia. These were identified based on the roles noted in the agenda, the historical development of the act/acto, and the successful experiences it had, when it in fact led the region towards environmental protection and sustainable development. Within this context, this section discusses how the treaty can continue to advance, becoming more active and effective in the future. Forum for Information-Gathering and Technology Sharing The acto already fulfills the role of information-gatherer, albeit in a less organized manner. Throughout the years, the organization has attempted to gather information on a wide range of topics, such as biodiversity and protected ­areas. While a limited number succeeded, a few initiatives indeed moved forward, especially those focused on science-based data. The main successful example was the publication of the geo Amazonia,97 achieved through unep’s support, which effectively provided an overview of the region through multiple angles. It included, for example, the geographic characteristics and land occupation models, the socio-demographic and economic dynamics, as well as a portrait of Amazonia today, through an analysis of biodiversity, forests, water resources, agroproductive systems and human settlements, as well as the f­ ootprints of

96 97

acto, Strategic Agenda, supra note 1, at 20–21. unep, acto and ciup, supra note 85.

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environmental degradation, such as impacts on ecosystem services and vulnerability. The report was based on national assessments of countries, which, through their national agencies, provided the adequate responses to the topics chosen in the treaty. There weren’t, however, uniform parameters chosen prior to the collection of data. As such, while there is information from all eight Amazon countries, these are often not easily comparable, as each country uses different ­parameters to assess their national data. In addition, another opportunity was missed to use the framework developed and the data collected in an ongoing way. Indeed, instead of limiting the information to a report based on a specific period, a mechanism could be developed to keep the data updated. Through the same systematic approach, national agencies could continue updating the data each year, and the information could be provided in an online, easily ­accessible tool. Finally, instead of concluding with a report that only analyzes the data ­gathered, the organization could indeed move a step forward by e­ stablishing specific programs or activities in the challenges observed throughout the region. In addition, the gathering and systematizing of data should include both scientific and technological data, and also refer to the legal frameworks applicable to Amazon countries. This was done at a limited scale at the geo ­Amazonia. Indeed, the report noted some of the main environmental norms pertaining to environmental protection and forests in particular, but there was no analysis of their content or the level of effectiveness these provide. Such study is essential to the development of common policies in Amazonia, and represents the first step in a more effective role by the organization. The data developed could be used, for example, for harmonizing environmental policies, and replicating successful policies adopted by Amazon countries individually. The harmonization of environmental policies is essential in a shared ecosystem such as Amazonia, so that initiatives in one country are not undermined based on those from another. Since the environment doesn’t respect borders, the actions in one part of Amazonia directly impact the other. Several themes could follow a similar approach. An assessment of the ecosystem services provided by Amazon countries, for example, would reinforce the economic value of the forests, thus achieving one of the organization’s main goals. Based on a broader economic analysis of the ecosystem services, environmental protection could be pursued through an economic perspective, thus also achieving the goal of socio-economic development of the region. The acto should have a more active role not only in exchanging information, but actually creating data. The Monitoring Project represents a successful example of initiatives in this regard. Based on the technology developed by the Brazilian government for satellite monitoring of deforestation in Amazonia,

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the acto provided the remaining seven countries with the necessary tool to assess their national rates of deforestation. Indeed, through this mechanism, it addressed one of the main challenges faced by countries to establish forest policies: lack of information. Furthermore, it published regular reports compiling the available data. A next step would be to actually develop common policies based on the data provided. The Monitoring Project is also a successful example of South-South cooperation (ssc), which is essential to promote development within the region.98 Indeed, the acto could broaden its role as a forum for information gathering and technology sharing to induce ssc.99 ssc is most effective when states are in contiguous regions, such as in Amazonia, as they share similar problems and can more easily pool resources to solve them.100 With similar challenges and innovative solutions to address them, developing countries have started to share knowledge, skills, expertise and resources to meet their development goals, and comply with international commitments through concentrated efforts.101 As environmental issues affect nations across borders and regionally, ssc facilitates the implementation of multilateral environmental agreements (meas).102 ssc can be useful as states shape their own environmental agenda and work toward harmonization and global governance regimes.103 The prominence of regionally coordinated agreements in environmental protection suggests the increasing role of regions, which expand cooperation through intergovernmental organizations in the South, such as the acto.104 Pre-existing regional grouping and networks may provide the best platform for enhanced national activities.105 The existence of an effective institutional framework, with decision-making mechanisms already in place, avoids the need for 98 99

100 101 102 103 104 105

See Maria Antonia Tigre, supra note 6, at 408. For an analysis of South-South cooperation in environmental law, see K.L. Koh & N.A.  ­Robinson, “South-South Cooperation: Foundations for Sustainable Development” in S. Alam et al. (eds.), International Environmental Law and the Global South (2015). The chapter uses asean as an example, highlighting the need of further research of other regional schemes. ipcc, supra note 9, at 1121. Maria Antonia Tigre, supra note 6, at 409. K.L. Koh & N.A. Robinson, supra note 97, at at 563. Id., at 555. Id., at 553. K.L. Koh & N. Robinson, Regional Environmental Governance: Examining the Association of Southeast Asian Nations (asean) Model in D.C. Esty & M.H. Ivanova (eds.), Global Environmental Governance 101–120 (2002).

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b­ ilateral action and added bureaucracy. The acto, however, still lacks proper decision-making mechanisms, hindering the cooperative effort. Common Policies and Commitments In addition to gathering data and sharing technology among its members, the acto acts, albeit on a more limited scale, as a developer of common policies and commitments, and an inducer of specific projects and activities within this framework. This role reinforces the role of information gatherer, making use of the data towards the next step, as mentioned previously. The most successful example of such an initiative is the Tarapoto Process on Criteria and Indicators for the Sustainability of Amazon Forests, which was initiated in 1995. The protocol identified 12 criteria and 77 indicators of Amazon forest sustainability, divided into three categories: national level, management and service unit level and global level.106 In 2010, acto and the International Tropical Timber Organization (itto) signed a memorandum of understanding, strengthening cooperation between them to develop and implement criteria and indicators (c&i) of sustainable forest management, considering both the c&i of Tarapoto and the ones of itto.107 Further, review and analysis of the Tarapoto’s c&i were undertaken as part of the project “Strengthening criteria and indicators for sustainable forest management in policy and practice,” a three-year project (2014–2016) implemented by fao in cooperation with acto, itto, unff, and other relevant organizations.108 Another successful example, which combines the roles of information gatherer and policy developer, is the gef Amazon Basin project, implemented by unep. Its “objective is to contribute to the effective protection and sustainable use of the water and land resources of the Amazon Basin, based upon the principles of integrated water resources management (iwrm), and management of the effects of climate change within Amazonian communities, in a ­coordinated and coherent way.”109 As seen in Chapter 9, the project seeks to 106 Enrique Elías, The Tarapoto Process: establishing criteria and indicators for the sustainable management of Amazon forests (fao), available at http://www.fao.org/docrep/007/ y5841e/y5841e12.htm. 107 fao, Criteria and Indicators – for sustainable forest management, Main uses of C&I for sustainable forest management, available at http://www.fao.org/forestry/ci/88506/en/ (last visited Feb. 25, 2017). 108 fao, Criteria and Indicators – for sustainable forest management, Strengthening criteria and indicators for sustainable forest management in policy and practice, available at http://www.fao.org/forestry/ci/88504/en/ (last visited Feb. 25, 2017). 109 gef, gef Amazon Project – Water Resources and Climate Change (Aug. 29, 2013), available at https://www.thegef.org/news/gef-amazon-project-water-resources-and-climate-change.

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create a shared vision for water resources and land use among the member states, thus inducing the common responsibility for the sustainable management of the basin as a whole. In addition to monitoring water resources, it addresses the challenges of climate adaptation in the region through a common strategy. It should be noted that virtually all projects developed by the acto rely on the assistance of third parties, in cooperation with other countries, multilateral organizations, nonprofits or the private sector. The assistance can take multiple forms, but, most importantly, the acto requires financial assistance to fund projects. As each project has to be individually funded, implementation is often slow, as a new funding process is required each time a new idea emerges. An easier alternative, which has been brought up by countries several times, is to create a fund for the sole development of Amazonia through partnerships with other parties.110 Through this approach, the acto could raise funds for the organization as a whole, allocating resources to specific projects as these emerge. The model could be based on the Brazilian Amazon Fund, as will be explained in Chapter 13. International Voice for Amazonia One of the successful roles developed by the acto was becoming a global voice in international negotiations to present their regional perspective. While there were some missed opportunities to be more active in this regard, mostly due to the role of other regional organizations in such negotiations and the lack of presence of the acto in some international events, the role has advanced well throughout the years. As such, the acto has become a forum for parties to agree on common positions and has a “coordinating role” as facilitator in international negotiations.111 One of the main examples is its role in United Nations Forum on Forests (unff) negotiations. acto’s perspective presents not only the uniqueness of the environment its members share, but also its value within their social and economic context. As such, the acto tries to break the paradigm of the untouchable Amazon, contributing to the creation of economic opportunities for the region through new methods of administering natural resources and environment with the participation of local and regional actors. Indeed, the acto

110 Rosalía Arteaga Serrano, A Organização do Tratado de Cooperação Amazônica (Otca): um desafio permanente 98 in 4 dep: Diplomacia, Estratégia e Política / Projeto Raúl Prebisch (Apr.-Jun. 2006). 111 res/ix MRE-OCTA/05, adopted at the ix mmfa in Iquitos, Peru, Nov. 25, 2005.

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has been “hailed as a model for regional cooperation at [its] tenth session,”112 in 2013. Moreover, as an example of its key role in the protection of biological diversity, the acto participated in the ninth meeting of the Conference of the Parties (cop 9) to the Convention on Biological Diversity, held in Bonn, Germany (19–30 May 2008). The Second Meeting of Ministers and Representatives of the Member Countries of acto took place as a side event on May 29. This event resulted in the “Bonn Report,” which reaffirmed the commitments undertaken by member countries and compiled the actions agreed upon by them in relation to the conservation and sustainable use of the Amazon biodiversity.113 Recently, during the 17th meeting of the Conference of the Parties (COP17) to the Convention on International Trade in Endangered Species of Wild ­Fauna and Flora (cites), in Johannesburg, South Africa (24 September–5 ­October 2016), the acto organized a side event on the use of new technologies and information systems to enhance the conservation of cites species in the Amazon.114 Furthermore, for the Rio+20 conference, the Organization prepared the Declaration of the Ministers of Foreign Affairs of the Member Countries of the acto. This document recognized that the 1992 United Nations Conference on the Environment and Development meant the consolidation of the sustainable development paradigm development that integrates, with the same level of importance, the social, environmental and economic development, highlighting the transcendence of the Treaty of Amazon Cooperation, as an instrument for the sustainable development of Amazon region. The countries thus reiterated the commitment to promote sustainable development in the region.115 Similarly, prior to the Paris Climate Conference (COP21), acto adopted a declaration urging for the adoption of an international agreement to combat climate change.116

112 unff, Amazon treaty body hailed as model for regional conservation efforts (Apr. 18, 2013), http://www.un.org/esa/forests/news/2013/04/amazon-treaty-body-hailed-as-model -for-regional-conservation-efforts/index.html. 113 otca, Relatório de Gestão (Jul. 2007-Jul. 2008), available at http://otca.pagina-oficial .com/assets/documents/20161025/fbc5de0513988512debb8a394ce27b2f.pdf. 114 otca, otca lanza nuevas iniciativas en cites (Sep. 22, 2016), available at http://otca .pagina-oficial.com/news/details/77. 115 xi mmfa, Declaración de los Ministros de Relaciones Exteriores de los Países Miembros de la otca para la Conferencia de Rio+20 (Nov. 22, 2011). 116 otca, Países Amazónicos adoptan Declaración para la 21a Conferencia de las Partes (cop21) (Dec. 1, 2015). available at http://otca.pagina-oficial.com/news/details/91.

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Experience from Brazil117

As seen in Chapter 2, Brazil has historically had the largest deforestation rates in the region. In 2004, an “Arc of Deforestation” stretched over four thousand kilometers from Acre to Belém, near the Peruvian border to the mouth of the Amazon River. An area the size of Poland was destroyed from 1988 to 2004, and the forest was quickly replaced by soy fields, ranches and cattle pastures. The destruction represented nearly 1 percent of all the carbon dioxide emitted by humans since the Industrial Age.118 In 2004 alone, an area the size of Albania was destroyed. Totaling 28,000 square kilometers, deforestation had reached a new high. With that, however, deforestation rates began to fall.119 The turnaround was the result of a series of policies advanced by the government, and strengthened by private parties and ngos after 2004: the establishment of strategic protected areas and indigenous lands, stepped-up law enforcement, economic incentives for forest conservation, and voluntary measures by soy and beef producers. A few conditions enabled Brazil to effectively adopt these policies: a combination of a world-class system for forest monitoring and low-carbon land that allowed for agriculture production to continue advancing.120 The change was ignited by the murder of activist Dorothy Stang in 2005. As a response to the killing, the government sent two thousand federal troops to Pará, arresting and convicting perpetrators of deforestation-related crimes. A moratorium on recognizing new land claims and granting logging permits in the region was decreed. ibama, the environmental protection agency, was given the authority and the budget to prosecute deforestation-related crimes, using the near real time monitoring by satellite. Finally, dozens of new p ­ rotected area and indigenous territories were designated in the region.121 These initial policies addressed Nepstad’s three categories of policies. The government increased the risk associated with deforestation by enforcing the existing laws against clearing forests. A successful crackdown on illegal trade in mahogany was an early confidence builder for efforts to control ­deforestation.122 As ibama finally started prosecuting deforestation-related 117 This section largely draws on the case study presented in Frances Seymour and Jonah Busch, Why Forests? Why Now?, The Science, Economics and Politics of Tropical Forests and Climate Change 186–217 (2016). 118 Id., at 187. 119 Id., at 188. 120 Id., at 188. 121 Id., at 189. 122 Id., at 191.

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crimes, perpetrators were suddenly accountable for their actions. The 1965 Forest Code, amended in 1996 to restrict clearing of more than 20 percent of the forest by private landowners, proved difficult to enforce. However, the 2012 Forest Code granted amnesty to landowners for past deforestation, and once again established the obligation to maintain 80 percent of forest cover across properties.123 The improved enforcement was greatly facilitated by the development of Brazil’s satellite system. As part of the package of deforestation policies, Brazilian authorities began developed deter (Real Time System for Detection of Deforestation). deter is a program by the Brazilian National Institute for Space Research (inpe) that detects clearings within the Brazilian Amazon in near-real time based on Moderate Resolution Imaging Spectroradiometer (modis)124 satellites to match illegal clearing in the Amazon to specific properties and sends biweekly deforestation alerts to federal and state law enforcement agencies.125 With more information, law enforcement became easier. The inpe uses data from Landsat126 and other similar satellites to provide annual digital maps of deforestation for the nine states of the Brazilian Legal Amazon as part of its Program for the Estimation of Deforestation in the Brazilian ­Amazon (prodes).127 The satellite images allowed the police to observe deforestation between a week or two of happening and to catch landowners in the act. It also allowed federal prosecutors to bring lawsuits against large property owners and confiscate illegally harvested logs and cattle raised in protected areas. The enforcement abilities were once again strengthened in 2009 when landowners were required to submit their property boundaries to a registry.128 The demand for deforestation was reduced through the moratorium on new land claims and logging permits.129 In the following year, credit restrictions were established on farmers and ranchers in high-deforestation m ­ unicipalities. Indeed, the Ministry of Environment blacklisted 36 Amazon municipalities that accounted for 45 percent of Amazon deforestation in the previous year. 123 Id., at 192. 124 modis (MODerate spatial resolution Imaging Spectroradiometer) is satellite instrument owned by nasa that collects biweekly information on the world’s forests. modis has been used to map carbon stocks and send deforestation alerts. Id., at 98. 125 Id., at 93; 97. 126 Landsat (Land + Satellite) is a satellite owned and operated by nasa and usgs that ­collects long-running, frequent, high-quality, and freely accessible images of the world’s forests at thirty-meter resolution. Id., at 97. 127 Id., at 96–97. 128 Id., at 193. 129 Id., at 191.

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Farms in blacklisted municipalities were subjected to heightened monitoring and fines, and lost access to subsidized agricultural credit from the Central Bank.130 Given the scenario, soy and beef industries voluntarily imposed moratoriums on the selling of agricultural products from recently deforested land.131 The moratorium was largely boosted by a Greenpeace report released in 2006. The report raised attention to deforestation for soy, deeming commodity traders that sold soybeans, as well as restaurants in Europe that sold meat, cows, and chickens raised on that soy as criminals.132 Because of the soy moratorium, farmers were forced to oblige. In 2009, the Brazilian beef and leather industry developed a cattle agreement, another self-imposed certification that guaranteed farms and slaughterhouses were not causing deforestation in the Amazon forest.133 Public and private initiatives provided positive incentives to landowners for forest conservation.134 Another strategy to reduce demand for deforestation was the incentives to support rural incomes to the maintenance of forest resources.135 Brazil developed the Bolsa Floresta, a program that made monthly payments to families in the state of Amazonas in return for keeping forest standing. Funding came from the Amazon Fund, which channeled international payments for reducing deforestation, and private voluntary carbon offsets.136 Finally, the supply of available land for deforestation was reduced through the establishment of new protected areas and indigenous reserves.137 From 2003 to 2008, Brazil expanded protected areas in the Amazon rainforest or ­recognized as indigenous lands by 640,000 square kilometers, an area the size of France. By 2010, these covered 2.2 million square kilometers, 44 percent of the Amazon, an area larger than Greenland.138 Protected areas established in Brazil were a mix of types: they included extractive reserves, national parks and wilderness areas, as well as indigenous peoples’ reserves held under ­collective tenure and designated for sustainable management. Most importantly, these were strategically placed not in remote areas, like the government used to do, but rather on active frontiers under imminent threat of deforestation.139 130 131 132 133 134 135 136 137 138 139

Id., at 193. Id., at 189. Id., at 193. Id., at 193–194. Id., at 189. Id., at 191. Id., at 194. Id., at 191. Id., at 192. Id., at 192.

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Deforestation in Amazonia dropped by over 50 percent in 2008, and by more than 80 percent in 2012. From 28,000 square kilometers, it fell to 13,000 square kilometers, and then to 4,600 square kilometers. It has roughly remained the same since. Brazil reduced deforestation rates while increasing nationwide cattle production by 21 percent and soy production by 65 percent over the 2004–13 period. The economy grew 4 percent per year.140 The continued growth was a result of the backlog of cleared land available for planting, decoupling agriculture from further deforestation.141 While it remains to be seen whether deforestation rates will continue to fall – with some indicators that the trend has not continued, as shown in ­Chapter 3 –, important lessons can be learned from Brazil’s success story. Moreover, replicating Brazil’s success in other countries is not easy, as it is a result of a combination of factors. Indeed, few tropical countries have the same capacities for governance and monitoring as Brazil.142 The acto’s monitoring project, however, helps in this regard, providing the first step towards similar success. The following chapters analyze some of Brazil’s policies individually, with a comparison of a other alternatives advanced by Amazon countries. A different combination of those may provide the ideal template for each Amazon country to find the best national policies to invest in. The acto provides a useful mechanism for information sharing, technology transfer, and a regional platform that would ensure countries could build on each others’ helpful lessons, and pool resources to fight the threats regionally, achieving the best ­results nationally. 10.5 Conclusion After a broad examination of the historical development of the act/acto, a critical analysis was warranted. As an international organization that promotes regional cooperation between the Amazon countries, the acto did not follow a traditional development process. Throughout the four decades of ­existence, it has become stronger, but it still retains many flaws. Chapter 10 provides the needed critical look at the act/acto framework, analyzing the challenges faced by the organization, and the ways in which it can still contribute to ­regional cooperation in Amazonia. Before looking at the acto, however, two main questions were asked. The first question addressed whether forestry should be regulated at the regional level. It broadly compares forest policies at the international, regional, and 140 Id., at 189. 141 Id., at 194–195. 142 Id., at 196 (citing Ruth DeFries).

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­ ational levels. On the one hand, the development of International Forest Law n showed that the model remains insufficient given the broad goals that rely on different implementation methods at the national and local scale. National governance, on the other hand, also faces challenges, with multi-level, multifaced efforts that involve different stakeholders which often fail to agree on priorities. In addition, the national level tends to promote policies which hinder large-scale conservation efforts. The regional regulatory regime seems the most narrowly-tailored towards the goal of international afforestation, reforestation, and forest conservation generally. Indeed, regional initiatives are essential in strategic planning and can coordinate the governance of shared resources, such as water and forests. Cooperation is especially relevant to sustain shared ecosystems like the ­Amazon rainforest. Forest policies require a multitude of efforts, combining initiatives at the global, national, and regional levels. Rather than ­competitive, the solutions are complementary, as there is no one single solution to protect ­Amazonia. Cooperation is needed at different levels. Ultimately, a regional ­system of regulation creates the necessary balance between national concerns/ sovereign policymaking interests and the global guidance that is needed. Based on the positive answer to the first question, showing that there is a need for forest regulation at the regional level, the second question looked at whether the acto is the appropriate forum for regional cooperation and development of the forestry agenda in Amazonia. The section provided a broad overview of the development of the regional framework, highlighting some of the main initiatives to strengthen the treaty, such as the creation of the Permanent Secretariat, the adoption of the Amendment Protocol, and the creation of the acto. Member states have constantly reinforced their political will to maintain regional cooperation, and agreed to compulsory financial mechanisms to fund the basic structure of the treaty. The treaty’s structure, however, remains weak. Indeed, there are many challenges in implementation, with nonexistent obligations, compliance or enforcement mechanisms. The treaty lacks precise commitments, p ­ laces an unequal weight on sovereignty as the main principle, and its institutions lack autonomy. Overall, the decision-making system is burdensome, slowing the ­cooperative process. There is no accountability, and states can ­freely fail to c­ omply with the – limited – commitments assumed. There is no ­resolution-conflict mechanism, failing to provide countries with a discussion forum when they aren’t in complete agreement. An amendment to the ­treaty, creating a court where inter-state disputes could be resolved could easily ­address this issue. Funding programs and projects remains an ongoing challenge because there is no sustainable pool of resources to fund projects on an ongoing basis. While several improvements have strengthened the treaty, lack

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of resources remains a s­ erious issue which requires a more permanent solution of a broader funding system, such as an Brazilian Amazon Fund. As will be explained in Chapter 13, the acto can only use up to 20 percent of the reserves of that fund, as the rest is exclusively invested in Brazil. These challenges render implementation ­difficult, burdensome, and ineffective. Other regional organizations have more effectively established legally binding environmental obligations, limiting the countries’ sovereignty in light of environmental goals. These however, fail to include all Amazon countries, which makes the acto an inappropriate forum for a wide-reaching regional cooperation process. In light of this situation, the acto remains a suitable ­forum to induce at least some regional cooperation for the sustainable development of Amazonia. As the only international treaty that involves all Amazon States with the ­purpose of protecting the environment, it is in a unique position to fulfill this role. It has 40 years of diplomatic experience, an established institutional structure, and a ps that acts as a factor of cohesion among dispersed instruments and institutions operating at different levels. The acto is an essential tool within the Latin-American integration process, promoting multi-lateral collaboration through synergies among the member countries, with multilateral organizations, international monetary agencies, social movements, the scientific community, productive sectors and civil society.143 It maintains legal personality to represent all Amazon countries, understanding the issues at stakes and providing joint solutions to environmental problems. In sum, it already provides a cooperative forum of discussion. Nonetheless, an essential aspect of international law is the need to constantly adapt to new circumstances as international relations develop. The act was originally structured as a framework document, malleable to ensure its adaptation in the future. However, this has not happened. Throughout time, the acto became an organization for sustainable development of the Amazon region, with a goal of combining conservation efforts with the economic integration of the countries’ respective territories. In light of the renewed ­focus, its rules and structure should also adapt. Indeed, an opportunity arises for increasing practical participation at the regional level, which has only been sought after in a limited scale. Considering the successful initiatives developed by the organization, the acto can thrive by fulfilling three different roles: (i) as a forum for ­information-gathering and technology sharing; (ii) as a developer of common policies and commitments, and an inducer of specific projects and ­activities 143 acto, Strategic Plan 2004–2012, 17 (2004), available at http://otca.pagina-oficial.com/ assets/documents/20161220/104e8a0adc01c25d4813b4b1b3b4fdbb.pdf.

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within this framework; and (iii) as an international voice for Amazonia. Section  10.3 provided an overview of those roles, as a way in which to achieve tangible results. Using the example of the geo Amazonia report published by the organization with the assistance of unep, the section showed how the act already fulfills the role of information-gatherer. Suggestions on how to better do so were provided. These include, for example, addressing the need to refer to the national legal frameworks applicable to Amazon countries, in an attempt to understand the existing system and potentially harmonize legal solutions. The Monitoring Project provides an example of exchange of information, successfully orchestrated by the organization through a South-South cooperation process based on the technology developed by Brazil. The Tarapoto Process, on the other hand, shows how the organization can develop common policies and commitments. Based on a broad and thorough process tailored to national experiences, it developed a regional model applied to sustainable forest management. The gef Amazon Basin Project provided a similar mechanism based on the shared water resources in Amazonia, focusing on the challenges faced to adapt to climate change within the region. These experiences successfully show the potential the organization has, and indicate what it could achieve through a broader thematic reach. Finally, the acto slowly became a global voice in international negotiations, acting as a forum for negotiating a regional perspective, as well as promoting a coordinating role through joined forces to present the Amazonian perspective. Through the acto, countries quickly learned that a joint perspective had a greater weight. The organization participated on a wide range of global events, including unff, unfccc, cbd and cites gatherings. Starting a practice that has been scarcely used previously, member countries noted particular national projects, which could be used as examples throughout the region. While the Strategic Agenda did not specifically address this role for the ps/acto, Chapters 12, and 13 show that it can be one of most important functions performed by the organization. Based on this premise, the final ­section of this chapter presents the results achieved by Brazil in ­reducing deforestation. With a multi-strategy approach, the country successfully cut ­deforestation at a rate of 70 percent, with a series of lessons that can be learned by the Amazon countries, with the acto as a guiding organization. The chapter thus ends with the practical application of the possible roles for the acto according to this particular example, leading to the following chapters, which look at the national initiatives to try to fill the gap of the international and regional systems.

chapter 11

Environmental Protection No organization alone is able to deal with the full range of forest issues in a comprehensive manner.1

∵ Since 1978, Amazon countries have repeatedly committed to regional cooperation and environmental protection in Amazonia through the Amazon Cooperation Treaty (act) and the Amazon Cooperation Treaty Organization (acto). At political meetings of heads of state and foreign ministers, gatherings from government technical experts, rounds of negotiations, institutional strengthening and revisions of the treaty, Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela reinforced their general goal to jointly promote regional conservation in the Amazon territory. In virtually every commitment, however, there was a reminder of each country’s sovereignty over natural ­resources, making sure there is no actual obligation to reduce natural resources’ exploitation due to their parallel obligation towards promoting social and economic development. The act is the only legal instrument adopted by all Amazon countries for the protection of the Amazonian natural environment. However, it does not establish legally binding obligations to promote environmental conservation. Sovereignty remains the basis of the act. The original provisions promote the rational development of the Amazon Basin with maximum feasible conservation of its resources, but overemphasize each country’s sovereignty.2 Throughout the 35 years of cooperation, member countries made sure to constantly reinforce their sovereignty over natural resources, and their flexibility to freely choose how to use them. The reinforcement was constant in several political

1 Tiina Vähänen, Collaborative Partnership on Forests – A Model for Interagency Collaboration, xii World Forestry Congress, (2003), available at http://www.fao.org/docrep/ARTICLE/ WFC/XII/0852-C5.HTM. 2 Treaty for Amazonian Cooperation (Amazon Cooperation Treaty, hereinafter act), art. i, 17 ilm, 1045 (July 3, 1978). Brazil, Federal Decree No. 85050 (Aug. 18, 1980).

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resolutions and declarations by the act’s bodies, such as the Meeting of the Presidents, the mmfas and the accs. The sovereignty over natural resources remains an important value for ­Amazon countries due to challenges of socio-economic development still faced throughout the region. The balance between social and economic ­development and environmental protection remains one of the greatest challenges of developing nations. Nonetheless, the excessive emphasis on sovereignty remains one of the main critiques to the act. The traditional concept of sovereignty is no longer ideal in an inter-dependent world. Indeed, regional environmental problems require a shared sovereignty as a more adequate form to promote cooperation between States.3 In addition, without a duty to protect the environment, States remain unaccountable, as there is no obligation towards environmental protection, and no complaint mechanism within the act. This chapter focuses on the lack of environmental obligations in the act/acto’s framework. It starts with the gaps in the regional legal system, and discusses the duties from Amazon countries within that context. After providing a brief overview of the principles and obligations towards environmental protection in the act’s language, it discusses the categorization of the treaty as soft law. The act is obviously not the only international legal framework that applies to the region. Even within the act’s framework itself, member countries have deferred to obligations established by International Law. Indeed, Amazon countries have assumed international obligations by adopting legally binding and nonbinding instruments in environmental protection. These include both bilateral or multilateral agreements, as well as decisions adopted by other regional and subregional organizations to which they are parties to. Section 11.2 provides an overview of those commitments, most specifically as they relate to forests. While international law shaped the way for environmental rights to grow, it was proven insufficient to indeed shelter them. As soft law, international environmental law has limited efficacy. Indeed, there is no independent international environmental rights treaty, or a legally binding forest treaty. International standards are low and formally non-binding.4 Even if most national 3 David França Ribeiro de Carvalho, O Tratado de Cooperação Amazônica no Contexto dos Processos de Integração Regional: da unidade fragmentada à unidade integrada 94 (2009) (unpublished Masters thesis, puc-mg), available at www.biblioteca.pucminas.br/teses/Di reito_CarvalhoDF_1.pdf. 4 See James R. May & Erin Daly, Global environmental constitutionalism 20–21 (2015).

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legal frameworks internalize the rules of international law, a body of law of its own is required to properly safeguard nature, and, specifically, the Amazon rainforest. Environmental constitutionalism has emerged as a response to this need. Indeed, constitutional environmental protection provides the highest rank among the legal norm, trumping all statutes, administrative rules or court decisions.5 It thus provides a “safety net” for addressing environmental issues.6 Besides, inserting environmental protection in the constitution sets an example for legislators and policy-makers. As a “mirror reflecting the nation’s soul”, the constitution represents the country’s priorities and a minimum set of protection for its citizens.7 As the basis for the legal framework in each of those countries, their respective constitutions set the tone for their goals and priorities. It is the structure on top of which environmental protection can be built. Most of the constitutions in South America are recent, reflecting democracies shaped in the last few decades.8 As such, the majority was developed while the environmental agenda rose globally, and the interest in the Amazon rainforest rose regionally. Hence, the constitutions of the Amazon countries mostly reflect a concern for nature and include, in one way or another, environmental protection. Section 11.3 thus analyzes the environmental constitutional framework of Amazon countries. Within the context of soft international and regional legal frameworks, this chapter asks whether constitutional environmental law fills the regulatory gap, ensuring there is an inherent duty to protect Amazonia. It analyzes the constitutional provisions concerning the environment as the basis for environmental protection in each of the Amazon countries. As such, it compares how they shape the way for environmental protection. It concludes with an analysis of whether constitutional law indeed fills the gap. 11.1

Gaps in Regional Cooperation

Due to the noncomitting language and the absence of coercive mechanisms, both the act and the Amendment Protocol are regarded as soft law. The act 5 Id., at 33 (citing Brandl and Bungert, “Constitutional Entrenchment”, 4–5). 6 Id., at 35 (citing Brunch et al., “Constitutional Environmental Law”, 134). For a detailed analysis of the relevance of environmental constitutionalism, see id. 31–36. 7 David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 4 (2012) (citing State v. Acheson (1991, 813)). 8 The oldest constitution is Suriname’s, from 1987. The newest constitution is from Bolivia, which was developed in 2009.

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is based on a set of principles that set the foundation for cooperation between Amazon countries. As seen in Chapter 5, the act has five fundamental principles, present in the treaty’s preamble and articles, namely: (i) sovereignty; (ii) conservation of natural resources; (ii) equality among members; (iv) cooperation; and (v) integration of the Amazonian territories into national economies. For the purposes of this chapter, only the first two principles will be discussed.9 The principle of sovereignty is the main pillar of the act.10 Indeed, member countries have the right to develop their respective Amazonian territories, and to exclusively use and utilize the Amazon region and the natural resources in their country.11 Based on the principle of sovereignty over natural resources guaranteed by International Law, it reinsures member countries’ right to develop and occupy the region,12 and fully use natural resources within their territories.13 This right is based on the premise that countries have specific needs according to their national economies, and those shall not be hindered due to environmental protection. Sovereignty of Amazon countries is unrestricted, and is only subject to the limits previously established in International Law.14 The unrestricted sovereignty is at the act’s core, as it represents different nations with common goals pursued jointly without any limitations to national power. Rather than limiting sovereignty, it was strengthened through regional cooperation. It ensured that there would be no international control over how Amazon countries chose to develop internally, and use their natural resources. Indeed, the principle authorizes States, inside their territories and within the limits of International Law, to conduct or authorize activities that can potentially cause adverse effects on the environment.15 The sovereign right of member countries to exploit natural resources shall be employed with due respect to the environment through the sovereign responsibility to protect Amazonia. Indeed, member states agreed to promote the harmonious development of their respective Amazonian territories.16 There is an inherent duty to preserve the Amazon’s ecosystem, with an obliga9 10 11 12 13 14 15 16

Please see Chapter 5 for a full analysis of the principles and obligations of Amazon countries. act, preamble. act, art. xvi. David França Ribeiro de Carvalho, supra note 3, at 92–96. act, art. iv. act, art. iv. act, art. iv. act, art. i.

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tion for its preservation, conservation and rational use of natural resources.17 It was important to address the global concerns voiced in the Stockholm Conference, ensuring that the need to promote development within the region would not undermine the countries’ commitment to the environment. Member States commit to make efforts towards the rational use of water resources due to its social and economic role within each country.18 The language is, once again, weak, ensuring no actual obligation, only a commitment to try. Although the States acknowledge a responsibility to preserve the environment, this is not an enforceable or absolute duty.19 The language is noncommitting, as member countries “agree to undertake actions” for preservation of the environment, rather than positively undertake them. The obligation is fairly broad and non-specific. There are no consequences to non-compliance. While environmental protection, based on sustainable development20 and ecological balance,21 is a central concern, sovereignty over natural resources and economic development, which is an actual right, can always be argued to limit environmental obligations. Indeed, the act failed to replicate the second part of Principle 21 of the Stockholm Declaration, which granted responsibility or obligations of States not to harm the environment of other States, or beyond the limits of national jurisdiction.22 With no specific and mandatory legal obligation, states have broad discretion as to what needs to be done, and by which means.23 Execution can therefore hardly be assessed by external objective control mechanisms, such as a process of judicial control.24

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act, art. i. Later reinforced through the 2004 Declaration of Manaus, §2. act, art. v. act, Preamble. See Ernesto Roessing Neto, Brasil, Bolívia, o Tratado de Cooperação Amazônica e as Hidrelétricas do Rio Madeira, Revista da Faculdade de Direito da ufmg No. 51, 79 (Jul – Dez 2007), available at http://www.direito.ufmg.br/revista/index.php/ revista/article/viewFile/51/48. act, Preamble. act, art. i. act, art. vii. David França Ribeiro de Carvalho, supra note 3, at 97. Soft Law, as opposed to Hard Law, has a voluntary character, consistent with the principle of subsidiarity. It establishes directives, leaving to the Member States to choose the best national strategy to achieve it. It discusses common goals and interests, the exchange of knowledge and experience, thus respecting both the unity and diversity among states. In soft law mechanisms there is no coercion, and the obligations do not bind the Member States. See Kenneth W. Abbott et al., The Concept of Legalization in 54(3) International Organization 401–419 (2000). Beatriz Garcia, The Amazon from an International Law Perspective, 95 (2011).

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Sustainable development is therefore a path to achieving overall regional progress. For this purpose, it is necessary to find a balance between economic growth and environmental conservation. This balance has been the main challenge faced by Amazon countries over the past decades. In addition, an equitable distribution of benefits shall be promoted.25 Sustainable development is also an avenue to ensure each country’s sovereign right over the region. Indeed, Amazon countries were conscious of their responsibility to preserve the environment while searching for socio-economic development, inducing sustainable progress.26,27 When discussing sovereignty, the language chosen by the act was more precise (“declare … is a right inherent …”28), ensuring an actual obligation to respect the right of each country. However, there is a significant difference as the language from the right to sovereignty is compared to the environmental obligations. Member states chose the words of the treaty carefully, making sure there was no actual obligation with respect to the environment (“agree to undertake”,29 “shall make efforts aimed at”,30 “agree on the advisability”,31 “agree to encourage”,32 and “shall cooperate in ensuring”33). Soft law promotes mutual learning experiences between countries, through a discussion of common interests, knowledge and experience sharing. It includes encouraging, rather than legally binding obligations.34 In addition, it refers to rules that are neither strictly binding in nature nor completely lacking legal significance.35 While it often looks like a legal obligation in some ways (e.g., it is a written exchange of promises between states), it nevertheless falls short of what is required to formally bind states.36 Although there are precise

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35 36

act, Preamble. David França Ribeiro de Carvalho, supra note 3, at 98. act, Preamble. act, art. iv. act, art. i. act, art. v. act, art. x. act, art. xi. act, art. xiv. Andrew T. Guzman, International Soft Law, Berkley Law Scholarship Repository, 172 (Jan. 1, 2010), available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1694 &context=facpubs. Soft Law Law and Legal Definition, us Legal Inc. …, available at https://definitions.uslegal .com/s/soft-law/. Andrew T. Guzman, supra note 34, at 172.

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articles in the act, these are not coercive in nature. They guide cooperation between parties, clearly affirming their sovereignty as well as the responsibility for their share of the Amazon basin. However, there is no mechanism to oblige a country to comply. In the absence of coercion and the power to establish sanctions due to the lack of compliance with the treaty, soft law refers to guidelines, policy declarations or codes of conduct, which set standards of conduct. Indeed, they are not directly enforceable.37 Soft law refers to international norms that are deliberately non-binding in character but still have legal relevance, located “in the twilight between law and politics.”38 They are voluntary in nature and consistent with the principle of subsidiarity, which divides stages of competence between different actors. The act does not grant authority to create, interpret and apply rules. Indeed, all decisions within the act/acto’s framework have to be unanimous, and implementation of projects and programs can only be developed after a precise decision by the political bodies of the treaty. In addition to the lack of autonomy, decisions by the political bodies are not enforceable. Rather, they are declarations and resolutions that show willingness from member countries, but still require national action to be fully implemented. In this sense, the acto articulates with agencies and bodies for the coordination, implementation of programs and projects, executing agencies or national coordinators, having more of a mediator and conciliator role. Within this context, the act is considered soft law.39 While the act is the main element of the international legal system of the Amazon, it is not the only one. The focus of this book remains on the cooperation between Amazon countries within the framework established by the act, given that it is the only treaty involving all Amazon countries and with a specific focus on the Amazonian territory. However, other legal instruments are worth mentioning. Indeed, Amazon countries have assumed international obligations adopting legally binding and nonbinding instruments in environmental protection. These include both bilateral or multilateral agreements, as well as binding decisions adopted by the regional and subregional

37 38 39

Supra note 35. Daniel Thürer, Soft Law in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4. 452–454 (2000). Carla Cristina Alves Torquato and Erivaldo Cavalcanti e Silva Filho, Regimes Internacionais e Soft Law: uma Análise a Partir da Organização do Tratado de Cooperação Amazônica, p. 13, available at http://www.publicadireito.com.br/artigos/?cod=e9a8f256f4904b06.

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o­ rganizations to which they are parties.40 The instruments cover a wide variety of issues, including freshwater resources, biodiversity, health, food safety, and sanitation, forests, hazardous substances and activities, disaster prevention and management, and indigenous populations.41 In addition to the general obligations, the act subjects parties to restrictions from International Law.42 The express reference reinforces obligations that generally apply to all states, such as the 1972 Stockholm Declaration43 and the 1992 Rio Declaration.44 These ensure, for example, that States have the obligation to avoid environmental damage in other States and beyond their natural borders.45 However, International Environmental Law is also considered soft law, with general guidance but few enforceable commitments. 11.2

Substantive Right to the Environment

The right to a healthy environment was first formally recognized in the Stockholm Declaration, a result of the global eco-summit in 1972.46 It established that the fundamental right to freedom, equality and adequate conditions of life should be fulfilled in an environment of a quality that allows a life of dignity and well-being.47 The Stockholm Declaration paved the way for countries to internalize the right to the environment, and establish it in their national laws. Although international law plays a vital role in shaping the recognition of fundamental rights, constitutions are paramount to fully protecting them. As the highest and strongest law within countries, the law of the laws, a constitution represents the country’s values and priorities. Since the 1970s, 76 countries have granted constitutional status to environmental rights.48 40 41 42 43 44

45 46 47 48

Beatriz Garcia, supra note 24, at 152–153. For an in-depth analysis of the instruments adopted by the Amazon States Inter Se until 2011, see Beatriz Garcia, supra note 24, at 151–187. act, art. iv. 1972 Stockholm Declaration. A/CONF.151/26 (Vol. i), Report of the United Nations Conference on Environment and Development, held in Rio de Janeiro between 3–14 June 1992, Annex i: Rio Declaration on Environment and Development (Aug. 12, 1992). 1972 Stockholm Declaration, Principle 21. Declaration of the United Nations Conference on the Human Environment, Stockholm Conference, un Doc.A/Conf.48/14/Rev.1 (adopted June 16, 1972). Id., Princ. 1 at para 2. See May & Daly, supra note 4; D.S. Law and M. Versteeg, “The Declining Influence of the United States Constitution,” New York University Law Review 87 (2012); David R. Boyd,

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Most of the Amazon countries followed the same trend, and, in similar ways as the Stockholm Declaration, established an individual right to the environment. Suriname is the only exception, as its constitution lacks a constitutional individual right to the environment or protection of nature. While the original language of Guyana’s constitution only established a State’s duty towards the environment for the benefit of present and future generations,49 a 2003 amendment included an express individual right to the environment. Substantive environmental rights can thus provide a sound basis for advancing protection of the Amazon Rainforest. Constitutional environmental rights (cers) are brought about in different ways, and typically qualify the right with adjectives purporting to establishing a goal of environmental quality: the right to a healthful environment, or one that is clean, safe, adequate, harmonious, balanced, or otherwise desirable.50 This section provides an overview of the constitutional provisions that grant environmental rights in Brazil, Bolivia, Colombia, Ecuador, Guyana, Peru and Venezuela. It starts with the noun and the adjectivical “problem”, and addresses the challenge of defining what “environment” means, and what it means for an environment to be healthy, balanced or quality.

Type of Environment Protected in the Right to the Environment: The Noun and the Adjectivical “problem” An initial challenge to implementing environmental constitutionalism is defining what “environment” means. While all the Amazonian constitutions refer to the environment as an asset to be protected, none defines the environment, making it challenging to adjudicating the rights related to it. Some courts, however, have clarified the problem. Brazil and Colombia, for example, have opposing views. While the Colombian Constitutional Court interpreted the environment through its usefulness to human beings, the Brazilian Federal Supreme Court (the constitutional court) broadened the concept, including its urban and work environment as well. Indeed, the Colombian court interpreted environment by the physical elements that are of service to human beings.51

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The Constitutional Right to a Healthy Environment, Environment, Science and Policy for Sustainable Development (Jul.–Aug. 2012), available at http://www.environmentmagazine .org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html. Constitution of the Co-Operative Republic of Guyana Act (Act 2 of 1980), art. 36. Erin Daly, Constitutional Protection for Environmental Rights: The Benefits of Environmental Process, 17 Int’l J. of Peace Studies 2, 71 (Winter 2012). Germán Eduardo Cifuentes Sandoval, El medioambiente: Un concepto jurídico indeterminado en Colombia, 9 Justicia Juris 43 (Apr.-Set. 2008), available at https://www.uac.edu.co/ images/stories/publicaciones/revistas_cientificas/juris/volumen-5-no-9/art-4.pdf.

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The Brazilian court, in turn, defined the environment to include the natural, cultural, artificial – meaning the urban space –, and work environment.52 A second challenge in implementing environmental rights is defining the adjectives used to define the environment. Adjectives are used to elucidate what kind of environment shall be protected, revealing each country’s priorities and purpose in establishing environmental protection. The Amazon countries characterize the environment with variations of either balanced or healthy, or both. With the exception of Colombia, which qualifies the environment as healthy, and Guyana, which does not use specific adjectives, all followed a similar definition of the environment to be protected through the concept of environmental balance. Ecological balance is defined as “a state of dynamic equilibrium within a community of organisms in which genetic, species and ecosystem diversity remain relatively stable, subject to gradual changes through natural succession”.53 As such, it conveys uniquely to the environment’s status as it relates to nature itself. As an interconnected system, any changes to its status quo could lend it unbalanced, regardless of its effect on human beings. On the other hand, a healthy environment can either mean an environment that maintains human health, or an environment that is itself healthy. The second perspective would be similar to the concept of an ecologically balanced environment. As such, an unhealthy environment could mean a polluted environment, which would affect the surrounding people as well as each microorganism within it. It could thus be perceived either through an anthropocentric or an ecocentric lens. However, standard definitions tend towards a more anthropocentric approach, as a healthy environmental is usually defined by the quality of environmental factors, such as pollutants in air, water, soil or food that affect human health.54 Guyana was the only country that did not use specific adjectives to characterize the environment to be protected. Instead, the right to the environment is directly attached to an individual harm to a person’s health. Indeed, the constitution established that everyone has the right to an environment that is not 52

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s.t.f., a.d.i. No. 3540/MC, Relator: Min. Celso de Mello, 01.09.2005, 2219 Diário Oficial da União[d.o.u.], 03.02.2006, 528 (Braz.), available at http://redir.stf.jus.br/paginadorpub/ paginador.jsp?docTP=AC&docID=387260. wwf Global, Ecological Balance, available at http://wwf.panda.org/about_our_earth/ teacher_resources/webfieldtrips/ecological_balance/ (last visited Mar. 14, 2015). Jonathan M. Links, Introduction to Environmental Health Johns Hopkins, Bloomberg School of Public Health (2006), available at http://ocw.jhsph.edu/courses/environmen talhealth/PDFs/Lecture1.pdf (last visited Mar. 14, 2015).

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harmful to a person’s health or well-being.55 Guyana therefore chose a plain anthropocentric perspective solely linked to human health. However, it also states that the well-being of the nation depends upon preserving clean air, fertile soil, pure water and the rich diversity of plants, animals and ecosystems, linking individual aspects of the environment and the well-being of people. Colombia qualifies the environment to be protected as healthy.56 Environmental protection is defined broadly as to include the management, use and conservation of natural resources, the balance of ecosystems, the protection of biological and cultural diversity, sustainable development, and the human quality of life. In addition, as a social goal, efficient public services and healthy natural resources are essential to the survival of present and future generations.57 Peru characterizes the right to the environment as balanced and adequate to the development of each person’s life.58 The environment, in turn, was deemed by the Constitutional Court an essential component of the full enjoyment of other equally fundamental rights recognized by the constitution and international treaties on human rights.59 The balanced environment comprises a complex and dynamic system that allows for the development of life to be protected. As such, the environment as a whole shall maintain its original state, or rather a balance according to its original qualities. The purpose of sheltering it, however, is not environmental protection itself, but rather the development of each person’s life. As such, Colombia, Guyana and Peru define the environment based on its service to human well-being. The anthropogenic approach is expanded by other complementary constitutional provisions, in the case of Guyana, and court decisions, in the case of Colombia and Peru. Specific elements of the environment supplement the concept, thus giving it a more ecocentric feel. Brazil qualifies the right to the environment simply as ecologically balanced.60 Despite the appearance of an ecocentric approach, the broader definition of the concept by the constitutional court includes aspects that further relate to its human aspect.61 The mix-and-matching is not, however, always 55 56 57

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Constitution of the Co-Operative Republic of Guyana Act, art. 149 J. Constitución Política de Colombia [c.p.], art. 79. Corte Constitucional [c.c.] [Constitutional Court], agosto 31, 1998, Sentencia T-453/98, available at http://www.corteconstitucional.gov.co/relatoria/1998/T-453-98.htm (last visited Mar. 30, 2015) (Colom.). Constitución Política del Perú, art. 2 (22). Tribunal Constitucional [t.c.], setiembre 30, 2003, Sentencia No. 964-2002-AA/TC (caso Alida Cortez Gómez de Nano) (Peru). Constituição Federal [c.f.] [Constitution] art. 225 (Braz.). s.t.f., a.d.i. No. 3540/MC, supra note 52.

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coherent, and interpretation can be difficult when the concepts are combined. For example, it is unclear what an “ecologically balanced” work environment may mean, and what kind of protection it entails. Bolivia qualifies the right to the environment as healthy, protected and balanced.62 Venezuela follows a similar path, and characterizes it as safe, healthy and ecologically balanced.63 Both safe and protected pertain to a similar purpose, namely to shelter the environment from external interference. E ­ cuador has the most complex definition, establishing the right to the environment as healthy and ecologically balanced that ensures sustainability and the well-­ being (suma kawsay).64 The principle of Sumak Kawsay or Buen Vivir was ­including as a guiding principle of the Ecuadorian society. It is a limit to development as well as a social call for reestablishing the value of ancestor roots and guide development by the prevalence of social and environmental equity, thus fully recognizing the doctrine of sustainable development.65 In summary, while Brazil has a rather ecocentric approach itself, solely defining the environment through its balance, Bolivia, Ecuador and Venezuela have more complex definitions, including a mix of concepts that the courts still need to further define. Ecocentric approaches, however, are harder to enforce, with a higher burden of proof. While the intention to give the environment an intrinsic value is noble, it leads to practical challenges that are yet to be overcome. By linking the protection of the environment to the risk to human health, Colombia, Guyana and Peru facilitate implementation of constitutional environmental rights, as it is easier to show the damage caused. Who is Entitled to the Right to the Environment The Amazon countries have different approaches as to who is entitled to the rights to the environment. These are divided in three categories, according to (i) whether the constitutions confer individual and/or collective rights, (ii) which generation is entitled to it, and (iii) whether there are others who may benefit from it.

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Constitución Política del Estado Plurinacional de Bolivia, art. 33. Note that when conferring the right to environment to indigenous people the constitution qualifies it as a healthy environment. Constitución de le República Bolivariana de Venezuela, art. 127. Constitución de la República del Ecuador, art. 14. Maria Antonia Tigre, Chapter 18A: Environmental Law of Ecuador, in 1 Comparative Environmental Law and Regulation 33 (Elizabeth Burleson, Lye Lin Heng, and Nicholas Robinson, ed., 2013).

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In summary, while Bolivia, Guyana and Venezuela clearly confer both individual and collective environmental rights, Colombia and Peru seem to confer individual rights only. Brazil uses a vague language (“all”), which is generally interpreted to include both individual and collective rights. Ecuador grants the right to the environment to the population in general, thus focusing on its collective aspect. In the second category, only Bolivia, Brazil, Guyana and Venezuela expressly grant the right to present and future generations. In the third category, Bolivia and Ecuador also expand the right to other living beings and nature, respectively. The right to a healthy environment is conferred upon individuals and groups from present and future generations in Bolivia, as well as other living beings,66 which are entitled to properly and permanently develop.67 The well-being of present and future generations was also considered as the reason for the state’s duty to promote environmental conservation.68 In addition, the right to live in a healthy environment, with adequate management and use of the ecosystem, was also particularly granted upon indigenous groups and nations.69 In Brazil, the right to the environment is conferred upon “all”.70 However, in the same provision, when discussing the government’s duty to protect the environment, the constitution states that it shall be preserved for present and future generations.71 The vague language is usually understood to mean both an individual and a collective right. However, when a conflict between these rights arises, the collective shall prevail over the individual.72 As a consequence, every Brazilian citizen can go to court and question public acts that can potentially harm the environment.73 In Colombia74 and Peru,75 the right to enjoy a healthy environment is simply conferred upon every person. In Guyana, it is granted to everyone, which

66 67 68 69 70 71 72

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Please note that besides the broad language included in the constitution, Bolivia also establishes nature rights in the Ley de Derechos de la Madre Tierra (no. 71, Dec. 21, 2010). Constitución Política del Estado Plurinacional de Bolivia, art. 33. Constitución Política del Estado Plurinacional de Bolivia, art. 9(6). Constitución Política del Estado Plurinacional de Bolivia, art. 30, ii (10). Constituição Federal [c.f.] [Constitution] art.225 (Braz.). Constituição Federal [c.f.] [Constitution] art.225 (Braz.). s.t.f., Mand. Segurança No. 25.285/DF, Relator: Min. Marco Aurélio, 17.06.2010, 149 Diário do Judiciário Eletrônico[d.o.e.], 13.08.2010, 298 (Braz.), available at http://redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=613326. Constituição Federal [c.f.] [Constitution] art.5 (Braz.). Constitución Política de Colombia [c.p.], art. 79. Constitución Política del Perú, art. 2 (22).

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can be interpreted to include both individuals and groups.76 In Ecuador, it is granted to the population in general.77 However, Ecuador’s Constitution has a singular twist on the rights to the environment by recognizing the rights of nature itself to any of the rights established in the constitution.78 Nature, as the subject of rights,79 can have its existence fully respected, thus maintaining regeneration of its vital cycles, structure, functions, and evolutionary ­processes.80 Venezuela establishes the right to the environment for each generation for its own benefit and that of the world of the future.81 In addition, the right to enjoy the environment is conferred upon everyone individually and collectively.82 Following a completely opposite direction, Suriname establishes that the nation has an inalienable right to take complete possession of its natural resources in order to utilize them for the benefit of the economic, social and cultural development of the country.83 Nature is thus not protected and there is no individual right to the environment. Collective / Individual Rights In international agreements, the right to a healthy environment is generally understood as an individual right.84 In this sense, the majority of the national constitutions follows the same pattern. Indeed, an analysis of the constitutional right to the environment in Latin America shows that few countries refer to the right to a healthy environment as a collective right.85 However, most Amazonian countries established a collective nature to the right to the environment. While some expressly grant environmental rights to both individuals and groups (Bolivia, Brazil and Venezuela), others grant them to the population in general (Ecuador), and two limit it to individuals only (Colombia and Peru). The right to the environment can be defined as a collective right when certain conditions apply. First, there is a plurality of people affected. Second, the 76 Constitution of the Co-Operative Republic of Guyana Act, art. 149 J. 77 Constitución de la República del Ecuador, art. 14. 78 Constitución de la República del Ecuador, art. 10. 79 Constitución de la República del Ecuador, art. 10. 80 Constitución de la República del Ecuador, art. 71. 81 Constitución de le República Bolivariana de Venezuela, art. 127. 82 Constitución de le República Bolivariana de Venezuela, art. 127. 83 Grondwet van de Republiek Suriname, art. 41. 84 Boyd, supra note 7, at 25. 85 Edgar Corzo Sosa, Derecho al MedioAmbienteAdecuado, unam, Instituto de Investigaciones Juridicas, 149, available at http://biblio.juridicas.unam.mx/libros/6/2759/9.pdf.

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damage is transindividual and indivisible, which is to say that the damage to one person usually extends to others. Third, the people affected are not clearly identified, as they are rather diffused within society.86 Environmental damage usually falls within those categories, and is considered collective in essence. It is important to note that this differentiation does not necessarily mean that the right to the environment cannot be exercised individually or collectively when it is not expressly granted as such. Indeed, the labeling of either individual or collective rights has its roots on a conventional binary classification of human rights, which does not fit perfectly with environmental law.87 As seen, some constitutions have gone as far as to expressly include both individual and collective rights to a healthy environment. Other countries have expanded the concept in one or the other direction through their national courts. For example, the Constitutional Court of Colombia held that the right to a healthy environment can only be interpreted as a collective right since the enjoyment of other fundamental rights, such as the right to life, to health and to intimacy, depend on the protection of the environment. As such, the right to a safe environment is also a subjective right of every human being, and, as a consequence, shall be enjoyed without undue interference.88 In addition, the Court held that the community and individuals are entitled to the right to water, thus applying rights that were expressly granted to individuals collectively. The holding was based on other constitutional provisions, such as the duty to protect water resources for future generations. Based on this interpretation, case law in Colombia has been consistent in determining the right to nature as an individual and collective right.89 Intergenerational Rights In addition to establishing the right to a healthy environment, the Stockholm Declaration determined that the safeguard of natural resources shall be made for the benefit of both present and future generations.90 It therefore innovated through establishing intergenerational rights, based on the concept that non-contemporaries can hold legitimate claims or rights against present 86 Bolivia, Bolivian Tribunal Constitucional, scp 0821/2014 (Apr. 30, 2014). 87 Boyd, supra note 7, at 25. 88 Corte Constitucional [c.c.] [Constitutional Court], abril 16, 2010, Sentencia T-271/10, available at http://www.corteconstitucional.gov.co/relatoria/2010/t-271-10.htm (last visited Mar. 30, 2015) (Colom.). 89 Corte Constitucional [c.c.] [Constitutional Court], marzo 29, 2011, Sentencia C-220/11, available at http://www.corteconstitucional.gov.co/relatoria/2011/c-220-11.htm (last visited Mar. 30, 2015) (Colom.). 90 1972 Stockholm Declaration, supra note 43, Princ. 2.

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­generations. As a consequence of the right of future generations to the environment, present generations have, in turn, correlative duties. Within the Amazon countries, only Bolivia, Brazil, Guyana and Venezuela expressly included future generations among those who can take advantage of the right to the environment. Bolivia acknowledged the rights of future generations in three constitutional provisions. It established that both present and future generations can develop normally and constantly as a consequence of the exercise of the right to a healthy environment.91 It is the essential goal of the State to promote and ensure responsible and planned use of natural resources and conservation of the environment for the benefit of present and future generations.92 Bolivians have a duty to protect natural resources and contribute to its sustainable use, preserving the rights of future generations.93 Through these provisions, Bolivia extended the group of people who have the right to a healthy environment and established an intergenerational obligation to preserve the environment for present and future generations. The use and production of natural resources is thus limited, as it cannot implicate in debt for future generations.94 Indeed, one of the basic premises of intergenerational rights is that present generations are obliged not to pursue policies that create benefits for themselves at the cost of future generations.95 Brazil, Guyana, and Venezuela do not expressly establish the right of future generations to the environment, but rather guarantee environmental protection for their benefit in addition to that of present generations. Indeed, Guyana ascertained the State’s duty to protect the environment for the benefit of present and future generations.96 Brazil ensured that everyone has a right to the environment, and that the State and the population both have the duty to defend it and preserve it for present and future generations.97 Venezuela determined the right and duty of every generation to protect and maintain the environment for its own benefit and that of the future world.98 Those countries provisions are thus less limiting than that of Bolivia. 91 92 93 94 95

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Constitución Política del Estado Plurinacional de Bolivia, art. 33. Constitución Política del Estado Plurinacional de Bolivia, art. 9(6). Constitución Política del Estado Plurinacional de Bolivia, art. 111(16). Alan E. Vargas Lima, El Derecho al Medio Ambiente en la Constitución Política del Estado Plurinacional de Bolivia, lidema – Liga de Defesa del Medio Ambiente 37 (2011). Lukas Meyer, Intergenerational Justice, The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.), available at http://plato.stanford.edu/archives/ win2014/entries/justice-intergenerational/. Constitution of the Co-Operative Republic of Guyana Act, art. 149 J(2). Constituição Federal [c.f.] [Constitution] art. 225 (Braz.). Constitución de le República Bolivariana de Venezuela, art. 127.

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Although Ecuador does not expressly ensure intergenerational rights, its relevance was already acknowledged in court. In the 2011 Ecuadorian case that first ruled on the rights of nature, the court recognized the importance of those in light of generational damages, stating that “we cannot forget that injuries to Nature are ‘generational injuries’ which are such that, in their magnitude have repercussions not only in the present generation but whose effects will also impact future generations”.99 Within a context of environmental law, intergenerational rights can be interpreted according to three different concepts: (i) the principle of intergenerational environmental responsibility; (ii) sustainable development; and (iii) the precautionary principle. The principle of intergenerational environmental responsibility is a third generation principle and expands environmental rights not only in place – like first and second generation rights – but also in time. It is based on the concept that the people who have been harmed or can potentially be harmed by an action can no longer be easily identifiable since they are no longer individualized. As obligations can’t depend on the particular identity of future persons, intergenerational rights can thus only be claimed collectively.100 While this applies generally to environmental harms, it expands in time to apply to future generations as well. The Brundtland Report defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.101 In this sense, there’s a balance between the rights and needs from this generation and the next. It assumes an intergenerational conflict of interests, and intends to balance an asymmetry in power-relation between the people living now and those who will live in the future through limitations imposed by the state of technology and social organization on the environment’s ability to meet both present and future needs.102 On its turn, the precautionary principle states that if there’s a risk an action or policy may cause harm to the public or to the environment, in the absence of scientific consensus that the action or policy is not harmful, the burden of proof that it is not harmful falls on those taking an action. It’s a way to give the benefit of the doubt in favor of future generations due to the lack of certainty.

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Wheeler c. Director de la Procuraduria General Del Estado de Loja, Juicio No. 11121-2011-0010 (“Wheeler”), found at http://blogs.law.widener.edu/envirolawblog/2011/07/12/ecuadorian -courtrecognizes-constitutional-right-to-nature/. 100 Lukas Meyer, supra note 95. 101 u.n. General Assembly, Report of the World Commission on Environment and Development: Our Common Future, u.n. Doc. A/42/427 (1987). 102 Lukas Meyer, supra note 95.

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Ensuring the rights of future generations can potentially be a tool to question damaging effects of current acts and activities. It is therefore another argument in favor of the precautionary principle. However, several problems arise. Since future people do not yet exist, it is unclear how they will be harmed. In the environmental context, it can be assumed that current natural resource policies can significantly affect future generations unless they develop technologies that allow them to adapt to the circumstances. But giving them a just claim to historic compensations requires a causal link between past injustices and the harm suffered in the future, which directly affects future peoples’ state of well-being.103 The concept of future harm is still unclear, as a proof would be required to show that the person would be better off had past people not acted in a specific way then. The legitimacy of a claim to compensation would depend on actions or inactions of the past, and their impact on their future well-being. Philosophers have long discussed whether justice considerations apply to intergenerational relations, meaning relationships between ­non-­contemporaries. Some philosophers have denied the concept of the rights or claims of future people altogether, simply because they live in the future, and cannot therefore have rights in the present.104 The counter-argument goes that we can ­assume three things: people will have rights in the future, those rights will be determined by interests then, and present actions and policies can affect those ­interests. If we can violate a right by frustrating interests, we can violate future rights. However, as future people are also human beings, who have the right to the environment regardless, it can be argued that ensuring rights to future generations is redundant. Due to limited efficacy, it is more of a moral obligations than a legal one, and, especially in the cases of Brazil, Guyana, and Venezuela, intends that future people are kept in mind when deciding for policies. As it is still unclear how those rights can be enforced, it can only be used as another argument against certain projects or policies, due to their potential unknown harmful effect in the future. Rights of Nature The rights of nature recognize standing for the natural environment, and the notion that non-humans should also have legal rights. It thus invokes a rightsbased system that recognizes the ecosystem as a right-bearing entity that holds 103 Id. 104 Id. (citing De George, 1981, 161, and Macklin, 1981, 151–152).

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value in itself, apart from human use. Philosophically, it is a pushback from the anthropocentric approach that the environment is an instrument for providing human health and well-being.105 Ecuador was the first country to establish the rights of nature at the national level, in their 2008 Constitution. The initiative was highly acclaimed internationally, as it broke away from the traditional environmental regulatory system, and represented a turning point in the debate by transforming abstract concepts into legally binding rights.106 Bolivia followed, and expanded the rights to the environment to other living beings in their 2009 Constitution. Based on the indigenous concept of Pacha Mama, a goddess revered in the Andes region that means Mother Earth, Ecuador granted nature the right to exist, persist, maintain itself, and regenerate its vital cycles, structure, functions and evolutionary processes.107 By recognizing that nature has the fundamental and inalienable right as a valuable entity in and of itself, the constitution opened the possibility to assign liability for damage and hold the government responsible for any reparations. In addition, it gave people the authority to petition on behalf of the ecosystem to ensure that its interests are prioritized. The right of nature is enforced through three constitutional provisions.108 In theory, nature rights are immediately enforceable and directly applied regardless of specific enforcement or other laws that expand it.109 In addition, citizens can demand that the rights of nature are respected.110 In this sense, any person, community, town or nation has standing to ensure that the rights of nature are being properly enforced.111 Lastly, it is incumbent upon authorities to enforce it when there’s a request for its protection.112 Bolivia used a broad constitutional language and extended the right to a healthy environment to other living things, so they may develop in a normal and permanent way.113 In addition, it establishes an individual duty of every Bolivian to protect and defend an environment suitable for the development of living beings.114 However, Bolivia went further to pass the Law of the Rights 105 Boyd, supra note 7, at 40. 106 Id., at 41. 107 Constitución de la República del Ecuador, art. 71. 108 Maria Antonia Tigre, supra note 65 at 35. 109 Constitución de la República del Ecuador, art.11(3). 110 Constitución de la República del Ecuador, art.71(2). 111 See Maria Antonia Tigre, see note 65 at 38. 112 Constitución de la República del Ecuador, art.11(1). 113 Constitución Política del Estado Plurinacional de Bolivia, art. 33. 114 Constitución Política del Estado Plurinacional de Bolivia, art. 108(16).

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of Mother Earth.115 As a collective subject of public interest,116 Mother Earth and other life-systems,117 a combination of human communities and ecosystems, are titleholders of inherent rights.118 Mother Earth was defined as the dynamic living system formed by the indivisible community of all life systems and living beings whom are interrelated, interdependent, and complementary, which share a common destiny.119 To enforce those rights, the Defensoría de la Madre Tierra, an ombudsman office for the protection of nature, was created.120 In addition, all citizens can enforce the rights of nature, either individually or collectively.121 In 2012, Ecuador had its first successful case based on the rights of nature.122 The case was brought by landowners of riverside properties, who, instead of arguing for property rights, using a traditional approach based on land damages due to erosion and flooding, based their defense on the rights of nature. They requested the protection of the Vilcabamba River, which was suffering from the construction of a road by the provincial government in southern Ecuador. The court ruled for the landowners and the provincial government was held liable for flooding damages caused by dumping of construction debris. The landmark decision acknowledged that when nature rights are in conflict with other constitutional rights, the former shall prevail. In addition, the court decided that in cases involving the rights of nature, the burden of proof is on the defendant to show there is no damage. Based on the precautionary principle, the court stated that “until it can be shown that there is no probability or danger to the environment of the kind of work that is being done in a specific place, it is the duty of constitutional judges to immediately guard and to give effect to the constitutional right of nature, doing what is necessary to avoid contamination or to remedy it.” However, whilst several remedial measures were established, there was no enforcement of the decision. A later case, brought by the government against

115 116 117 118 119 120 121 122

Ley de Derechos de la Madre Tierra, Ley No. 071, de noviembre de 2010 (Boliv.). Id., art. 5. Id., art. 4. Specifically, the right to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration and to live free of contamination. Id., art. 7. Id., art. 3. Id., art. 10. Id., art. 6. Wheeler c. Director de la Procuraduria General Del Estado de Loja, supra note 99. Translations from the original Spanish are the author’s own.

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private property owners who were conducting illegal gold mining operations, had a more successful ending, with an enforced decision.123 Although the rights of nature represent a breakthrough and an innovative way to establish environmental protection, it remains to be seen whether it is indeed successful. Since cases are still limited, no argument can be made on its effectiveness, especially for the Amazon rainforest. As an indicator, ­Ecuador has increased deforestation rates since 2008. While Bolivia’s deforestation rates have decreased, it still represents the largest rate among Amazon rainforest– excluding Brazil, which has the majority of the area and constantly has the highest rate overall. Exercise of the Right to the Environment Although the declaration of rights is important, it is more of a symbol rather than an actual conquest. Whilst it sets a statement of the country’s will, rights are worth little if they can’t be enforced. The Universal Declaration of Human Rights established that every person has the right to an effective remedy before courts for acts violating the fundamental rights granted by the constitution.124 The biggest critique to the environmental rights revolution is that the diffusion of rights on paper is not matched by a respect to them in practice.125 “Without judicial review, constitutions tend to be worth little more than the paper on which they are written. They become mere words, or public relations documents, rather than instruments which confer genuine rights.”126 The specific chapter or title where rights are included is particularly helpful in this regard, as it influences its implementation, enforceability and judicial interpretation.127 The most effective substantive environmental rights are selfexecuting, and can thus be enforced without the need for interceding legislation.128 Substantive environmental rights provisions can be understood to be self-executing either structurally or syntactically, by clear language of enforceability, or when placed within preambles, principles and general provisions. On the other hand, some countries make clear that the right to the environment is 123 República del Ecuador, Asamblea Nacional, Comisión de la Biodiversidad y Recursos Naturales, Acta de Sesión No. 66 (15 June 2011) (“República del Ecuador AsambleaNacional”), available at http://asambleanacional.gov.ec/blogs/comision6/files/2011/07/acta-66.pdf. 124 un General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (iii), art. 8, available at http://www.refworld.org/docid/3ae6b3712c.html (last visited 6 April 2015). 125 Boyd, supra note 7, at 9. 126 Id., at 5 (citing Sunstein (1994, 384)). 127 Id., 65. 128 May & Daly, supra note 4, at 78.

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not self-executing, either structurally or synthetically, by requiring interceding state action, or through specific wording, such as the use of passive voice.129 While the Amazon countries have not always been successful in enforcing environmental rights, with several obstacles still to overcome, some constitutions provide paths as to how those rights can be enforced. The Amazon countries have chosen to include environmental rights within different sections of their respective constitutions. They are either included among social and economic rights (Bolivia,130 Brazil131) or among the general rights (Colombia,132 Ecuador,133 Peru,134 Venezuela135).136 Substantive environmental rights provisions that appear structurally in a constitution alongside first generation constitutional rights are usually self-­ executing.137 Within this category, Peru is the only Amazon country that expressly includes the right to the environment as a fundamental right.138 Indeed, the right to a healthy environment is included in the second provision of the constitution, among other fundamental human rights such as the right to life, to equality, to freedom of religion, to privacy, and to peace and tranquility.139 As a fundamental right, constitutional guarantees can be used to protect the right to the environment. Proceedings such as the writ of habeas corpus, the writ of unconstitutionality, the popular action, and the writ of mandamus can be used whenever there is a violation of the right to a healthy environment.140 Most importantly, fundamental rights can be protected through the 129 May & Daly, supra note 4, at 78–84. 130 Constitución Política del Estado Plurinacional de Bolivia, Chapter 5: Social and Economic Rights, Section 1: Right to the environment. 131 Constituição Federal [c.f.] [Constitution], Title viii: Concerning the social order, Chapter vi: Concerning the environment (Braz.). 132 Constitución Política de Colombia [c.p.], Title ii: Concerning Rights, Guarantees and Duties, Chapter 3: Concerning Collective Rights and the Environment. 133 Constitución de la República del Ecuador, Title ii: Rights, Chapter 2: rights of well living (buenvivir), Section 2: Healthy environment. 134 Constitución Política del Perú, Title i: Concerning the people and society, Chapter i: Fundamental rights of the people. 135 Constitución de la República Bolivariana de Venezuela, Title iii: Duties, human rights and guarantees, Chapter ix: Environmental Rights. 136 It should be noted that the classification made by Boyd (supra note 7, at 66–67). 137 May & Daly, supra note 4, at 78. 138 Constitución Política del Perú, art. 2 (22). 139 Id., art. 2° (22): “Toda persona tiene derecho:A la paz, a la tranquilidad, al disfrute del tiempolibre y al descanso, asícomo a gozar de un ambiente equilibrado y adecuado al desarrollo de suvida.” 140 Id., art. 200. See also Código Procesal Constitucional, art. 37, inciso 23.

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­constitutional amparo proceedings. The writ of amparo has the purpose of shielding fundamental rights against wrongful acts, either by action or omission that either threaten or violate them.141 However, regardless of the language of the constitutional protections, fundamental rights are only truly enforceable when they can be vindicated in court.142 Through an in-depth analysis of the constitutional amparo cases, Guerrero concluded that the proceedings often present a set of problems identifiable at the policy level and through the development of jurisprudence, which prevent effective judicial protection of the fundamental right to a balanced and appropriate environment.143 For example, several court decisions failed to be properly executed through a lack of material funds or a material impossibility to comply with what the judge ordered.144 In addition, due to the extended length of the amparo proceedings, it is often the case that when a decision is reached, the facts have substantially changed, or irreparable damage has already been caused.145 Ecuador and Venezuela do not have a specific section focusing on fundamental rights. For this reason, it can be argued that all rights recognized in the constitution are fundamental rights, including environmental rights. Venezuela includes environmental rights within human rights and guarantees, therefore first generation rights.146 In addition, Venezuela’s constitution determines that everyone can access the bodies of the justice system to enforce rights and interests, including those of collective or diffuse nature,147 and that every person can claim the exercise of constitutional rights and guarantees, as well as other rights that are not expressed in the constitution, but pertain to the human being or other international documents on human rights.148 This claim can be made through the amparo proceedings. The writ of amparo protects constitutional rights and guarantees, as well as other rights that, whilst not 141 Luis Alberto Huerta Guerrero, Protección judicial del derecho fundamental al medio ambiente a través del proceso constitucional de amparo, 2o (2012), available at http:// tesis.pucp.edu.pe/repositorio/bitstream/handle/123456789/4715/HUERTA_GUERRERO _LUIS_MEDIO_AMBIENTE.pdf?sequence=1. See Constitución Política del Perú, art. 200(2). 142 May & Daly, supra note 4, at 84. 143 Guerrero, supra note 141, at 22. 144 Id., at 460. 145 Id., at 735. 146 Constitución de la República Bolivariana de Venezuela, Title iii: Concerning human rights and guarantees, and duties. 147 Constitución de la República Bolivariana de Venezuela, art. 26. 148 Constitución de la República Bolivariana de Venezuela, art. 27.

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expressly included in the constitution, are recognized by international human rights law.149 As such, they are considered self-executing. In Ecuador, environmental rights are included within the rights of the good way of living, which include mostly third generation rights.150 However, it is considered self-enforceable since the constitution establishes a specific State’s duty to protect the right of the population to live in a healthy and ecologically balanced environment in addition to protecting the environment itself.151 In addition, citizens can exercise legal actions and request the judicial and administrative bodies an effective protection of the environment, including preventive measures. The burden of proof is also shifted, and it is required that the manager of the activity proves that there is no harm. The writ of amparo in Ecuador is also limited to the rights recognized by the constitution.152 Bolivia does not expressly consider environmental rights as fundamental rights.153 However, as a result of the right to the environment, any person may propose legal actions to defend it.154 This right can be exercised individually or in representation of a group without prejudice to the obligation of public institutions to automatically act against attacks on the environment.155 This provision leaves little doubt that the right to the environment in Bolivia is selfexecuting and enforceable regardless of State action. The writ of amparo in Bolivia is also limited to the rights recognized by the constitution.156 In Brazil, the right to the environment is not included within the rights and guarantees, but rather within the title that discusses the social order.157 Including it among socioeconomic right could suggest that it is not a fundamental right. However, Brazil ensures, within the fundamental rights and guarantees, 149 Constitución de la República Bolivariana de Venezuela, art. 27. 150 It includes the right to water and food, the right to information and communication, the right to culture and science, the right to education, the right to habitat and housing, the right to health, the right to labor and social security. 151 Constitución de la República del Ecuador, art. 86. 152 Constitución de la República del Ecuador, art. 88. 153 It is included among Title ii: Fundamental Rights and Guarantees, and Chapter ii within this title establishes the fundamental rights. Environmental rights are included in Chapter v: Social and Economic Rights. Therefore, the rights established in other chapters instead of Chapter ii are guarantees rather than fundamental rights. 154 Constitución Política del Estado Plurinacional de Bolivia, art. 34. 155 Constitución Política del Estado Plurinacional de Bolivia, art. 34. 156 Constitución Política del Estado Plurinacional de Bolivia, art. 128. 157 Constituição Federal [c.f.] [Constitution], Title viii: Concerning the Social Order, Chapter viii: Concerning the Environment (Braz.). The fundamental rights and guarantees are included in Title ii: Concerning the fundamental rights and guarantees.

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that “any citizen has standing to bring a popular action to annul an act injurious to the public patrimony or to the patrimony of an entity in which the State participates … to the environment …”.158 Since the constitutional proceeding with the purpose of protecting the environment is a fundamental right, the right to the environmental itself is also interpreted as a fundamental right.159 As a fundamental right, the right to the environment is of immediate applicability. The Brazilian Supreme Court has qualified the right to the environment as a third generation right to which people are collectively entitled to.160 Colombia includes environmental rights within a chapter of collective and environmental rights,161 within the title of social, economic and cultural rights.162 As such, environmental rights were included among second generation socioeconomic rights that are presumptively not self-executing. In this sense, while Bolivia, Brazil, Ecuador, Peru and Venezuela established the right to the environment as a fundamental constitutional right, Colombia has not. As such, Colombian’s right to the environment does not enjoy the same presumption of enforceability.163 The Colombian Constitutional Court has already manifested an opinion on whether the right to a safe environment is a fundamental right, and can thus be protected through an acción de tutela.164 Three different theories emerged: (i) that the right to a healthy environment is a fundamental right, and, as such, can be protected through an acción de tutela;165 (ii) that the fundamentality of the right to a healthy environment can only be defined in each individual case;166 and (iii) that the right to a healthy environment is a right whose 158 Constituição Federal [c.f.] [Constitution], art.5 (lxxiii) (Braz.). 159 Paulo de Bessa Antunes, DireitoAmbiental 20 (2005, 8th edition). 160 s.t.f., Mand. Segurança No. 22.164/SP, Relator: Min. Celso de Mello, 30.10.1995, 1809–05 Diário Oficial da União [d.o.u.], 17.11.1995, 1155 (Braz.), available at http://redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=85691. 161 ConstituciónPolítica de Colombia [c.p.], Chapter iii. 162 Derechos Sociales, Economicos y Culturales. 163 May & Daly, supra note 4, at 83. 164 Please note that the acción de tutela in Colombia is the same constitutional proceeding as the writ of amparo in most of the other Spanish speaking Amazon countries. 165 Corte Constitucional [c.c.] [Constitutional Court], junio 17, 1992, Sentencia T-411/92, available at http://www.corteconstitucional.gov.co/relatoria/1992/T-411-92.htm (last visited Mar. 30, 2015) (Colom.). Corte Constitucional [c.c.] [Constitutional Court], junio 24, 1992, Sentencia T-428/92, available at http://www.corteconstitucional.gov.co/relatoria/ 1992/T-428-92.htm (last visited Mar. 30, 2015) (Colom.). 166 Corte Constitucional [c.c.] [Constitutional Court], junio 17, 1992, Sentencia T-415/92, available at http://www.corteconstitucional.gov.co/relatoria/1992/t-415-92.htm (last visited Mar. 30, 2015) (Colom.).

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­ rotection is obtained via the exercise of popular actions. Should it be linked p to a fundamental right, it can thus be exercised through an acción de tutela, when the right to a healthy environment would be considered a fundamental right through connectivity.167 The third theory has been more used since then, but some inconsistencies still apply.168 11.3

Individual Duty to Protect the Environment

The Stockholm Declaration also established a duty whilst recognizing the right to the environment. It recognized that man bears a solemn responsibility to protect and improve the environment for present and future generations.169 Instituting that people have a right to the environment means they can claim for its protection. It thus creates a duty on their counterparts not to interfere with the healthy environment, and therefore refrain from polluting.170 The majority of Amazon countries have established an individual duty to protect the environment. Brazil established the right to the collectivity, rather than on individual citizens. Peru and Suriname do not expressly recognize an individual duty of citizens to protect the environment. However, it can be argued that the duty to preserve the environment is a reflex of the right to live in an ecologically balanced environment. As a heritage of common use and essential to the quality of life, it is incumbent upon the Brazilian collectivity to defend and preserve the environment for present and future generations.171 The Brazilian Supreme Court held that as a third generation right, the values and goals should be protected by all.172 The Bolivian constitution established an individual duty to the environment on several provisions. Each Bolivian has the responsibility to protect and defend natural resources and contribute to its sustainable use to preserve the

167 Corte Constitucional [c.c.] [Constitutional Court], junio 30, 1992, Sentencia T-437/92, available at http://www.corteconstitucional.gov.co/relatoria/1992/T-437-92.htm (last visited Mar. 30, 2015) (Colom.). 168 Luis Fernando Sánchez Supelano, El derecho al ambientesano: esquemas de reconocimientoconstitucional y mecanismosjudiciales de protección en el derechocomparado, 51 (2012), available at http://www.bdigital.unal.edu.co/5812/1/luisfernandosanchezsupelano.pdf. 169 Stockholm Declaration, Princ. 1 at para 2. 170 J. Raz, Ethics in the Public Domain, 275 (1994). 171 Constituição Federal [c.f.] [Constitution] art.225 (Braz.). 172 s.t.f., Mand. Segurança No. 22.164/SP, supra note 160.

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rights of future generations.173 They shall defend an adequate environment for the development of the living beings.174 A collective duty of the population to conserve, protect and sustainably use natural resources and biodiversity, as well as to maintain balance in the environment, was also acknowledged.175 However, the Plurinational Constitutional Court of Bolivia ruled that while indigenous territories can manage the use of natural resources, they do not have the ability to protect nonrenewable natural resources, as those are exclusive property of the State.176 In this sense, although the people – and in this case, indigenous groups – have a duty to protect the environment, the court ruled that it is limited to renewable natural resources, since the nonrenewable resources are strategic to the economy and well-being of the State. The case related to the prior constitutionality control of the draft of the local constitution of indigenous territorial units. The draft established a duty to protect and defend renewable and nonrenewable natural resources and the environment, and contribute to its sustainable use, to preserve the rights of future generations.177 The court decided that the provision contradicted the national constitution178 as it established to be exclusively incumbent upon the indigenous territorial units the management and administration rather than the protection of renewable natural resources. On its turn, the natural heritage is of public interest and strategic to the sustainable development of the country.179 Hence, its conservation and use is exclusively incumbent upon the State and does not compromise the sovereignty over natural resources.180 However, the exploitation of nonrenewable natural resources is a matter of state interest and public utility.181 Strategic natural resources – including mineral, genetic, biogenetic resources, as well as sources of water – and fiscal reserves are ­related to natural resources and thus exclusively incumbent upon the State.182 173 174 175 176 177

178 179 180 181 182

Constitución Política del Estado Plurinacional de Bolivia, art. 108 (15). Constitución Política del Estado Plurinacional de Bolivia, art. 108 (16). Constitución Política del Estado Plurinacional de Bolivia, art. 342. Tribunal Constitutional Plurinational [t.c.p.] [Constitutional Court], No. 02097-2012-05CEA, Declaration No. 0057/2014, related to dcp No. 012/2013, (Bolivia, Oct. 21, 2014). Bolivia, Draft: Estatuto Autonómico Indígena Originatio Campesino de Mojocoya, art. 15(7).“7. Proteger y defender los recursosnaturalesrenovables y no renovables, m ­ edioambiente y contribuir a suusosustentable, parapreservar los derechos de lasfuturasgeneraciones …”. Specifically art. 304.I.3. Constitución Política del Estado Plurinacional de Bolivia, art. 346. Defined in art. 348.II as of strategic character and public interest for the development of the country. Constitución Política del Estado Plurinacional de Bolivia, art. 356. Constitución Política del Estado Plurinacional de Bolivia, art. 298.ii(4; 20).

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While the indigenous territories shall be previously consulted when there is exploitation of natural resources within their territory,183 they cannot protect nonrenewable natural resources.184 Colombia establishes a duty on every individual to protect the country’s cultural and natural resources and to keep watch that a healthy environment is being preserved.185 Ecuador establishes a duty to defend the territorial integrity of the country, as well as its natural resources.186 A duty to respect the rights of nature, preserve a safe environment and use natural resources in a rational, sustainable and sustained way was also acknowledged.187 Venezuela establishes a duty of each generation to protect and maintain the environment for the benefit of this and future generations. The duty of the State to ensure the development of the population in an environment free of contamination shall count with an active participation of the society.188 Guyana does not establish a constitutional duty to protect the environment, but rather a duty to participate in environmental protection. Indeed, the constitution includes an obligation for every citizen to participate in activities designed to improve the environment and protect the health of the nation.189 In addition, the preamble of Guyana’s constitution includes among its goals a society that ensures a healthy environment, as well as the commitment of the Guyanese people to protect the natural environment and endowment.190 Although Peru does not expressly ascertain an individual obligation to protect the environment, the Constitution Court ruled that by determining the right to the environment to be adequate to the development of human life, the constitution established an obligation on both the State and on individuals to maintain adequate natural circumstances so that the human being can live in dignified environmental conditions.191 Among the express rights to the environment there are different types of actions required by individuals, some more active than others. There is a duty to protect, defend, conserve, use sustainably, maintain balance, keep watch, respect, and participate. It’s interesting to see how protect/defend is usually 183 184 185 186 187 188 189 190 191

Constitución Política del Estado Plurinacional de Bolivia, art. 352. t.c.p., supra note 176, at 5 (Bol.). Constitución Política de Colombia [c.p.], art. 95(8). Constitución de la República del Ecuador, art. 83(3). Constitución de la República del Ecuador, art. 83(6). Constitución de le República Bolivariana de Venezuela, art. 127. Constitution of the Co-Operative Republic of Guyana Act, art. 25. Constitution of the Co-Operative Republic of Guyana Act, preamble. Peru, Tribunal Constitucional, Sentencia 964-2002-AA/TC (caso Alida Cortez Gómez de Nano), publicada el 30 de setiembre del 2003.

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related to natural resources rather than the environment as a whole. As such, a more active protect seems to relate to the monetary value rather than the biological one. This happens in Bolivia, Colombia and Ecuador. Venezuela is an exception as it establishes the duty to protect the environment as a whole. Bolivia and Ecuador address the rights of nature in their duties. Bolivia ­requires a more active role by establishing the duty to defend the environment for living beings, and Ecuador establishes the duty to respect the rights of nature. Guyana requires a less active role of citizens as it establishes a duty to participate. 11.4

State’s Duty to Protect the Environment

In addition to establishing an individual duty to protect the environment, one of the most effective ways to ensure environmental protection is by establishing a State’s duty to protect it as well. The State’s duty remains one of the straightforward ways to fill the gap of the regional framework, as it specifically creates an enforceable obligation for member countries. The majority of Amazon countries have established a State’s duty towards environmental protection in their constitutions. However, the obligation is often limited by other duties, such as to induce development. Suriname are is the exception, although there are several additional obligations pertaining to the preservation of the environment. One of the essential roles of the Bolivian government is to promote and ensure the responsible and planned use of natural resources.192 Industrialization shall be induced through the development and strengthening of the productive base in its different levels. However, it shall be promoted along with the conservation of the environment for the well being of present and future generations. As a mirror to the rights and duties of people to the environment, the Bolivian State has the duty to conserve, protect and sustainably use natural resources and biodiversity, as well as to maintain environmental balance.193 It is the State’s exclusive duty to administer natural resources according to the collective interest, and without jeopardizing its sovereignty over natural ­resources.194 Both the State and the society shall promote mitigation of the harms to the environment and environmental liabilities that affect the country.195 192 193 194 195

Constitución Política del Estado Plurinacional de Bolivia, art. 9(6). Constitución Política del Estado Plurinacional de Bolivia, art. 342. Constitución Política del Estado Plurinacional de Bolivia, art. 346. Constitución Política del Estado Plurinacional de Bolivia, art 347.

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The Bolivian State shall promote conservation and sustainable use of forest resources196 and forests, conservation and recovery of flora, fauna, and recovery of degraded areas.197 In addition to protecting the forests, the State shall protect genetic resources and traditional knowledge.198 In order to do so, the State shall create a registry for intellectual property.199 The State has the duty to defend, recover, protect and repatriate the biological material from natural resources, as well as the ancestral knowledge regarding them.200 Bolivia also established specific obligations of the State towards the environment of indigenous groups. The State shall protect indigenous groups in danger of extinction,201 and must recognize the legal demarcation of indigenous lands.202 The Brazilian federal government, the states, the federal district, and the local governments share the common incumbency to protect the environment and fight pollution in any of its forms, as well as to preserve the forests, fauna and flora.203 In order to ensure the right to a healthy environment, the government has the obligation to defend it and preserve it for present and future generations.204 In addition, the Brazilian constitution defined very specific obligations for the government, namely to: (i) preserve and restore the essential ecological processes and provide for the ecological management of species and ecosystems; (ii) preserve the diversity and integrity of the genetic patrimony and to supervise entities dedicated to research and manipulation of genetic material; (iii) define territorial spaces and their components that are to be specially protected, whilst ensuring that any change or suppression is permitted only through law and prohibiting any use that compromises the integrity of the characteristics that justify their protection; (iv) require a prior public environmental impact study for each work or activity that may cause significant degradation to the environment; (v) control the production, commercialization and employment of techniques, methods and substances that carry a risk to life, quality of life, and the environment; (vi) promote environmental education at all levels of teaching and public awareness of the need to preserve the environment; and (vii) protect the fauna and flora, prohibiting all 196 197 198 199 200 201 202 203 204

Constitución Política del Estado Plurinacional de Bolivia, arts. 386. Constitución Política del Estado Plurinacional de Bolivia, arts. 387. Constitución Política del Estado Plurinacional de Bolivia, art. 381, ii. Constitución Política del Estado Plurinacional de Bolivia, art. 381, ii. Constitución Política del Estado Plurinacional de Bolivia, art. 382. Constitución Política del Estado Plurinacional de Bolivia, art. 31, Sec. 1. Constitución Política del Estado Plurinacional de Bolivia, art. 31, Sec. 2. Constituição Federal [c.f.] [Constitution] art. 23, vi, vii (Braz.). Constituição Federal [c.f.] [Constitution] art. 225 (Braz.).

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practices that jeopardize their ecological functions, cause extinction of species or subject animals to cruelty.205 As a fundamental principle of Colombia, it is incumbent upon the State to protect cultural and natural riches of the nation.206 The government has a duty to protect the biodiversity and integrity of the environment, conserve the areas of special ecological importance and promote education to ensure that all people have the right to a healthy environment.207 In addition, the State shall plan the management and use of natural resources to ensure sustainable development, conservation, restoration or replacement. It must also prevent and control environmental degradation, impose legal sanctions and demand compensation for the damages caused.208 It shall therefore cooperate with other nations for the protection of ecosystems located in the bordering areas.209 Finally, it is incumbent upon the State to protect the integrity of public space and its destination as a common use, which shall prevail over private interests.210 Ecuador includes among the State’s primary duties the need to promote sustainable development211 and protect the country’s natural and cultural assets.212 The Ecuadorian state shall promote, both in the private and the public sector, the use of environmentally clean, non-polluting alternative energies and low impact technologies.213 The State shall also apply precaution measures and restrictions to activities that may cause the extinction of species, the destruction of ecosystems, or the permanent change of natural cycles.214 The State shall adopt policies and measures that avoid negative environmental impact whenever there is certainty of the damage. Whenever there is doubt, the State shall adopt effective and timely protective measures.215 The preservation of the environment, conservation of ecosystems, prevention of environmental damage, recovery of degraded natural places, and integrity of the genetic patrimony, are considered of public interest of the State.216 The State shall therefore exercise its sovereignty over biodiversity, thus 205 206 207 208 209 210 211 212 213 214 215 216

Constituição Federal [c.f.] [Constitution] art.225, §1 (Braz.). Constitución Política de Colombia [c.p.], art. 8. Constitución Política de Colombia [c.p.], art. 79, §2. Constitución Política de Colombia [c.p.], art. 80. Constitución Política de Colombia [c.p.], art. 80. Constitución Política de Colombia [c.p.], art. 82. Constitución de la República del Ecuador, art.3(5). Constitución de la República del Ecuador, art. 3(7). Constitución de la República del Ecuador, art. 15. Constitución de la República del Ecuador, art. 73. Constitución de la República del Ecuador, art. 396. Constitución de la República del Ecuador, art. 14; 66; 27.

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d­ eclaring conservation as a public interest.217 The government has a duty to regulate conservation, management, and sustainable use, recovery and limited ownership of fragile ecosystems.218 In addition, it is incumbent upon the State to establish policies to mitigate climate change through limiting greenhouse gas emissions and deforestation.219 Guyana establishes that the State shall, in the interests of the present and future generations, protect and make rational use of its land, mineral and water resources, as well as its fauna and flora, and take all appropriate measures to conserve and improve the environment.220 In addition, the State shall, through reasonable legislative and other measures, prevent pollution and ecological degradation, promote conservation, and secure sustainable development and use of natural resources while promoting justifiable economic and social development. Peru’s Constitution establishes the duty of the State to promote the conservation of the biological diversity and the natural protected areas.221 However, the Constitutional Court ruled that the right to a balanced and adequate environment includes both an active and passive obligation from the State. The State has an obligation to refrain from any acts which affect the environment, but also to maintain a balanced environment, which results, in turn, in a beam of possibilities, among which issuing legislation to promote environmental conservation. It includes both conservation and prevention if ­affecting a balanced environment. If the State cannot guarantee that human beings develop in a healthy environment, they can require the State to take all necessary preventive measures to do so. In that regard, the Court considers that the protection of a healthy environment is not only a question of reparation for damage caused, but especially to prevent it from happening.222 In another occasion, the Constitutional Court established as a State’s duty to adequately prevent risks to the environment, as well as harms that can be caused as a consequence of a direct human intervention, especially economic activities.223 The court thus adopted the principle of prevention by ­requiring that the State adopt technical measures to evaluate possible ­damages and ­prevent them. 217 218 219 220 221 222

Constitución de la República del Ecuador, art. 400. Constitución de la República del Ecuador, art. 406. Constitución de la República del Ecuador, art. 414. Constitution of the Co-Operative Republic of Guyana Act, art. 36. Constitución Política del Perú, art. 68. Peru, Tribunal Constitucional, Sentencia 964-2002-AA/TC (caso Alida Cortez Gómez de Nano), publicada el 30 de setiembre del 2003. 223 Peru, Tribunal Constitucional, Sentencia 01206-2005-AA/TC.

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Venezuela established as a fundamental obligation of the State to guarantee that the population develops in an environment free of contamination, where the air, the water, the coasts, the climate, the ozone layer, the living species are especially protected in conformity with the law.224 The State shall protect the environment, the biological and genetic diversity, the ecological processes, the national parks and natural monuments, as well as other areas that are ecologically important.225 The Constitution of Suriname establishes that the social objectives of the State shall aim at the identification of the potential for development of the natural environment, broadening capacities to expand it,226 creating and improving the conditions necessary for the protection of nature, and preserving ecological balance.227 11.5

Balance between Economic Development and Environmental Protection

Although the right to the environment is immediately enforceable in most ­ mazon countries, it is not absolute. Indeed, there can be limits when balA anced against other rights when conflicts arise.228 When discussing environmental rights, the conflict with economic development immediately comes to mind. Since there is usually a clash between environmental protection and economic development, the constitutions tend to provide some guidance as to how to balance them. While States serve multiple purposes of inducing development and safeguarding natural resources, some establish clear priorities. Peru does not discuss the balance between environmental principles and ­economic goals. Suriname and Bolivia tend to put development and industrialization first, although Bolivia acknowledges the need for environmental ­protection. Brazil, Venezuela and Colombia induce economic development whilst respecting the environment. Ecuador is the only country to expressly put both values at the same level. Suriname has the most drastic perspective. There is no balance between environmental protection and economic development, since the former is used 224 Constitución de le República Bolivariana de Venezuela, art. 127. 225 Constitución de le República Bolivariana de Venezuela, art. 127. 226 Grondwet van de Republiek Suriname art. 6(a). 227 Grondwet van de Republiek Suriname art. 6(g). 228 Boyd, supra note 7, at 65.

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as a means to achieve the latter. Natural riches and resources are property of the nation and shall be used to promote economic, social and cultural development.229 As such, the nation has an inalienable right to take complete possession of its natural resources. Bolivia’s constitution establishes industrialization as a priority, whilst acknowledging the respect for nature. It is interesting to note that the Bolivian State’s role in the economy consists of promoting the industrialization of natural resources, both renewable and non-renewable, as a priority, with due respect to environmental protection.230 In addition, industrialization of natural resources is a priority in economic policy with respect and protection of the environment and rights.231 However, all economic activities have the duty to protect the environment.232 The Bolivian State thus serves a multiple purpose of inducing development and protecting natural resources, having the general principles to guide their actions and policies. Brazil233 and Venezuela234 have a similar balance between the two values by establishing that the economic activities shall respect the environment. Indeed, Brazil establishes the national development as one of the fundamental goals of the country.235 As such, it might seem as if both fundamental rights – the right to development and the right to the environment – might be incompatible. However, by establishing the protection of the environment as a principle to be followed by the economic activity,236 the Brazilian constitution adopted the principle of sustainable development. Brazil goes further to even defend a different treatment according to the environmental harm of products and services, as well as their processes.237 The Brazilian Supreme Court held that the economic activity cannot be exercised without harmony with the environment. Indeed, sustainable development is the balance between the national development and the preservation of environmental integrity, and, as such, shall serve as a guide whenever there is a conflict between both constitutional values. When, however, this balance is not possible, the right to

229 230 231 232 233 234 235 236 237

Grondwet van de Republiek Suriname rt. 41. Constitución Política del Estado Plurinacional de Bolivia, art. 316. Constitución Política del Estado Plurinacional de Bolivia, art. 319, i. Constitución Política del Estado Plurinacional de Bolivia, art.312, iii. Constituição Federal [c.f.] [Constitution] art.170, vi (Braz.). Constitución de le República Bolivariana de Venezuela, art. 127. Constituição Federal [c.f.] [Constitution] art.3, ii (Braz.). Constituição Federal [c.f.] [Constitution] art.170, vi (Braz.). Constituição Federal [c.f.] [Constitution] art.170, vi (Braz.).

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e­ nvironmental preservation, as a heritage of all people, shall prevail in favor of present and future generations.238 Venezuela also acknowledges that the economic regime is guided by the principle of environmental protection, among others.239 In Colombia, the economy is incumbent upon the State, which shall intervene for the protection of a safe environment.240 Guyana establishes a duty on the State to secure sustainable development and use of natural resources while promoting justifiable economic and social development.241 While a middle way of sustainable development is established, it is unclear what “justifiable” means. In addition, the State also has the duty to achieve the highest possible levels of production and to develop the economy.242 In Ecuador, the development regime is a dynamic and organized set of the economic, sustainable, social, political, cultural and environmental systems, ensuring the realization of the good life, sumak kawsay. The State shall therefore plan the development of the country to ensure the exercise of rights, the achievement of the objectives of the development regime, as well as principles enshrined in the Constitution.243 The development regime has, among its goals, to restore and conserve nature and maintain a healthy and sustainable environment to ensure equitable, permanent and qualitative access to people and communities to water, air and land, as well as the benefits of subsurface resources and natural heritage.244 The economic policy has among its goals to promote a socially and environmentally responsible consumption.245 By putting nature and sustainability at the same level as other principles such as economic prosperity, Ecuador’s constitution seems to deem them equally valuable. In addition, national sovereignty over natural resources was limited by nature. For example, except for reasons of national interests as declared by the National Assembly, access to natural resources are limited in conservation zones.246

238 239 240 241 242 243 244 245 246

s.t.f., a.d.i. No. 3.540/df, supra note 52. Constitución de le República Bolivariana de Venezuela, art. 299. Constitución Política de Colombia [c.p.], art. 334. Constitution of the Co-Operative Republic of Guyana Act, art. 149 J. Constitution of the Co-Operative Republic of Guyana Act, art. 38. Constitución de la República del Ecuador, art. 275. Constitución de la República del Ecuador, art. 276. Constitución de la República del Ecuador, art. 284 (9). Maria Antonia Tigre, supra note 65, at 34.

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Constitutional Protection of the Amazon Rainforest

Due to the relevance of the Amazon rainforest in the national context, some countries have established specific constitutional provisions regarding the region itself. As a special ecosystem, it requires special attention, and is p ­ rotected as such in some countries such as Brazil. In others, such as Bolivia, it is addressed as a region of special interest due to its natural riches, and therefore as a relevant area for national development. Ecuador and Peru make reference to sustainable development in the region, thus taking a more flexible approach. Colombia, Guyana, Suriname and Venezuela do not acknowledge the Amazon in their constitutions. While it is understandable that Venezuela fails to do so, given their small percentage of the biome in the national territory, it is surprising that the other countries have failed to establish a constitutional protection in their primary law. This is especially true in Guyana and Suriname, which have virtually the entire territory under the Amazon biome. The Amazon is therefore in their national dna, and the region should be acknowledged as a zone of special environmental relevance. On the other hand, their constitutions are fairly modest on environmental provisions, and present a more conservative approach towards the protection of nature. Brazil’s constitution presents the Amazon rainforest as a national heritage. As such, its use shall be made according to conditions that ensure preservation of the environment, including as to natural resources.247 In this sense, the monetary value of the resources within the region is not, according to the constitution, higher than its environmental one. Based on the constitution alone, preservation of the environment in the Amazon region is therefore a priority. However, it is interesting to note how the Brazilian Federal Supreme Court has ruled that properties within the Amazon rainforest can still be expropriated for land reform purposes, provided that the land is intended to create agroextractive settlement projects.248 In the specific case, the rural property was located in an area with primary forest cover, within a region qualified as part of the Amazon rainforest ecosystem. Despite this fact, the estate was expropriated for land reform purposes, specifically agro-extractive settlement projects. The decision failed to acknowledge the special environmental interest of the region, which remained irrelevant in lieu of the political purpose of land 247 Constituição Federal [c.f.] [Constitution] art.225(4) (Braz.). 248 s.t.f., Mand. deSegurança No. 25391/df, Relator: Min. Ayres Britto, 12.05.2010, 185 Diário doJudiciárioEletrônico[d.j.e.], 30.09.2010, 102 (Braz.), available athttp://redir.stf.jus.br/ paginadorpub/paginador.jsp?docTP=AC&docID=614776.

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r­ eform. Instead of pursuing a sustainable development approach, the Federal Supreme Court ruled that an executive decree trumps the constitution, and overrules the protection of the region. The exception existed due to a “public necessity”, as qualified by the president by executive decree. In this case, instead of a clash between the right to a healthy environment and economic development, the dichotomy was between the environment, the social function of properties, and the political goal of land reform. The special protection of the Amazon rainforest as a national heritage did not prevail. As an ecosystem integral to the environmental balance of the planet, Ecuador’s constitution established a special territorial district of the Amazon provinces within the country.249 The territory shall have an integrated planning, embodied in a specific legislation, considering social, economic, cultural and environmental aspects, with a management that ensures the conservation and protection of the ecosystem, and the sumak kawsay principle. By including different aspects to be taken into consideration while developing policies for the region, Ecuador follows a middle path, focused on the sustainable development rather than sole conservation of the Amazon. Indeed, sustainable development is established as a guideline to the central State and decentralized autonomous governments, with the purpose of safeguarding the biodiversity of the Amazon ecosystem, offset disparities in their development and consolidate sovereignty.250 Despite the constitutional intention, more than six years have gone by and the law of the territorial region of the Amazon has not yet been approved.251 Amazonians advocate for a special territorial management of the areas as exists in the Galápagos Islands, funded with resources from the extraction of oil.252 However, it remains to be seen whether the constitutional provision paves the way for a comprehensive protection of the area and its natural resources.

249 Constitución de la República del Ecuador, art. 250. 250 Constitución de la República del Ecuador, art. 259. 251 On Nov. 20, 2012, a bill setting forth requirements for the sustainable development of Ecuador’s Amazon region was submitted to the Ecuadorian Congress (Proyecto de Ley Orgánica de la Circunscripción Territorial Especial Amazonica, “Amazon Development Bill”). The bill was sent to the National Assembly at the end of 2016. See http:// ppless.asambleanacional.gob.ec/alfresco/d/d/workspace/SpacesStore/a7fd5afc-d3c6 -4379-b7dd-54bcdd811aae/Proyecto%20de%20Ley%20Org%E1nica%20de%20la%20 Circunscripci%F3n%20Territorial%20Especial%20Amaz%F3nica%20Tr.%20270840.pdf. 252 Ley 10 (2012) already establishes a fund for the eco-development of Amazonia with a percentage of the resources from oil extraction. There are some discussions, however, on the amount and the law is currently under revision.

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Following the same pattern as Ecuador, Peru also takes the middle road by establishing sustainable development, as the way the State shall promote the Amazon region.253 In order to provide guidance as to what this means, it refers to a specific legislation to be developed to address the Amazon region.254 The Amazon is acknowledged in the Bolivian constitution’s preamble as one of the origins of the country, and part of the sacred Mother Earth.255 The Bolivian Amazon rainforest is declared a space of special protection strategic for the integral development of the country due to its high environmental sensibility, biodiversity, water resources and eco-regions.256 Bolivia also makes reference to a special legislation to be developed for the region.257 The Amazon rainforest, however, is declared a space of special protection strategic for the integral development of the country due to its high environmental sensibility, biodiversity, water resources and eco-regions.258 Although there is little practical difference between the Amazon rainforest and other forests, considering that 51 percent of the territory is composed of rainforest, it is interesting to note how forests, as such, are generally protected, but the Amazon forest is also specifically regulated. The region is protected due to its strategic value for development rather than for conservation of the environment. The State shall prioritize the sustainable development of the Amazon through an integral, participative, shared and equitable administration of the ­rainforest.259 As such, Bolivia acknowledges the relevance of the region and uses sustainable development as the basis for policies. It also states that the administration shall focus on creating jobs and improving the i­ ntegration of the population within the region, within the context of environmental protection and sustainability. It thus promotes the

253 Constitución Política del Perú, art. 69. 254 Law No. 27037 was approved in 1998 to promote the sustainable and integral development of Amazonia, establishing conditions for public investment and the promotion of private investments. 255 Constitución Política del Estado Plurinacional de Bolivia, preamble. 256 Constitución Política del Estado Plurinacional de Bolivia, arts.390 (i). 257 Constitución Política del Estado Plurinacional de Bolivia, arts.390 (ii). The Bill No. 199/2014-2015 of “Integral Development of the Bolivian Amazon Bruno Racua” is ­currently under analysis at the Camara de Diputados, and was approved by the Commission of the Amazon Region, Land and Territory, Water, Natural Resources and Environment on May 18, 2014. See Erbol Digital, Apruebanproyecto Ley de Desarrollo de Amazonia (May 18, 2014) http://www.erbol.com.bo/noticia/indigenas/18052014/ aprueban_proyecto_ley_de_desarrollo_de_la_amazonia. 258 2009 Bolivian Const., arts. 390. 259 Constitución Política del Estado Plurinacional de Bolivia, arts. 391 (i).

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o­ ccupation of the region, as well as the regional economic development. In this sense, there is no environmental conservation of Amazonia per se. Considering the Amazon region as a whole, it can be argued that the countries missed an opportunity to constitutionally protect the region as a reflection of their society and culture. With the exception of Brazil, the only country to acknowledge the Amazon as a relevant biome that needs a different regime of protection, other countries have failed to take advantage of the constitution to shelter the region from extensive threats by development. However, for the reasons already mentioned, no argument could be made on whether these have been effective, as deforestation rates seem to be more linked to executive policies rather than the constitution or other specific laws. 11.7 Conclusion International environmental law, while important to pushing countries in the direction of environmental protection, has failed to provide for binding obligations that are effective in safeguarding the environment. The regional ­framework that developed through the act/acto likewise failed to establish mandatory and enforceable obligations towards nature conservation. In short, the act is a normative instrument with no specific obligations or any type of coercion. It is a guideline with strategies, plans, and principles. With an absence of enforceable obligations towards environmental protection, and mechanisms of coercion for environmental damage, regional cooperation for conservation remains a result of political will. Within this context, how can the act/acto achieve its goals? How can the act and the Amendment Protocol, as the legal instruments that provide the basis of regional cooperation, indeed be enforceable? One avenue to fill the gap of a lack of an enforceable duty to protect the environment is constitutional law. Environmental constitutionalism emerged as a response to the lack of efficacy of international environmental law, and may provide an answer to the regional gap. In theory, through the enforcement of constitutional obligations, Amazon countries can be held accountable for damage to the environment. However, the theory is not easily applicable. This chapter shows that in itself, environmental constitutionalism also remains insufficient. Except for Suriname, all countries established an individual right to the environment. The Amazon countries used different definitions of the environment to be protected, and the majority link its value to that of use to human beings. While Bolivia, Brazil and Ecuador are more focused on the protection

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of nature for nature itself, Colombia, Guyana and Suriname establish environmental protection for the purpose of human health and well-being. However, most States in Amazonia are still trying to determine exactly what the right to the environment means. The language used is rather vague, and there is little explanation of the concepts used. The unclear language leads to too much uncertainty as to the level of environmental protection the States want to achieve.260 While some constitutional courts have helped expand on those concepts, there are not enough court decisions to determine a clear meaning yet. There is no consistency between the few court decisions available, and few conclusions can be drawn. With ambiguous concepts and multiple meanings of constitutional environmental rights across Amazon countries, implementation is hindered. The inherent lack of certainty makes adjudication more difficult as judges and policymakers are often required to put a meaningful concept of the environment into practice. Without an overarching concept, interpretations may vary according to who the interpreter is, which makes it more challenging to guarantee environmental rights are effective. While the adjectives provide the courts with some guidance, these remain vague enough as to give a blank card to interpreters, opening a wide range of interpretation that may merge anthropocenic and ecocentric values. The vagueness of the Brazilian constitution and the Ecuadorian principles, for example, renders the concept malleable enough to be used both for environmental protection and for the development of large infrastructure projects that promote degradation in the Amazon rainforest. Indeed, since the approval of the new constitution, there have been limited examples of how the rights can be applied in practice to enforce environmental protection, and how the societal principles can be used to promote conservation in the Amazon rainforest. On the other hand, new developments have been widely approved and promoted by the government itself. These conclusions are still premature, as many Amazonian constitutions are still recent and few cases have reached the constitutional courts. They may, however, provide some insight into how courts can induce implementation once they do. In addition to ascertaining a right to the environment, the majority of Amazon countries established an individual duty to protect it, as well as a State’s obligation towards environmental conservation. Peru and Suriname are the only countries that have not established an individual duty to protect the environment, although an obligation can be inferred in Peru through a ruling by the constitutional court. Instituting an individual duty towards environmental 260 Boyd, supra note 7, at 33.

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conservation means citizens can claim for its protection. It thus creates an obligation on their counterparts not to interfere with the healthy environment, and therefore refrain from polluting. A State’s duty for environmental protection has been adopted in the constitutions of all Amazon countries, with the exception of Suriname. These, however, still instituted several additional obligations pertaining to the preservation of nature. Brazil and Colombia’s constitution are very specific in terms of the environmental obligations. Colombia specifically determines the need to cooperate with other nations on bordering areas to protect the ecosystems. Ecuador and Guyana have broader obligations, but likewise ensure the responsibility of the State towards nature. Peru’s constitutional provisions were expanded by the constitutional court, which ruled that there is both an active and passive obligation from the State. Venezuela’s duty comes as a consequence of the obligation towards the population. In Bolivia, however, the obligation comes with a caveat. The country shall induce industrialization along with promoting conservation. While it has the duty to administer natural resources according to the collective interest, it shall be done without jeopardizing the country’s sovereignty over natural resources. Although the right to the environment is immediately enforceable in most Amazon countries, it is not absolute. Indeed, there can be a limit when ­balanced against other fundamental right, such as the right to economic development.261 Since a conflict between environmental protection and economic development is common, the constitutions tend to provide some guidance as to how to balance them. While States serve a multiple purpose of inducing development and safeguarding its natural resources, some established clear priorities. Suriname and Bolivia tend to put development and industrialization first, although Bolivia acknowledges the need for environmental protection. Brazil, Venezuela and Colombia induce economic development whilst respecting the environment. Ecuador is the only country to expressly put both values at the same level. Peru, Guyana, and Suriname remained silent on the subject. Undeniably, the ingrained collision between economic development and environmental protection is the biggest regional challenge in Amazonia. With economies largely based on commodities, social inequality and high poverty rates, governments often face impossible decisions. Comparing the provisions that ensure environmental preservation with the ones that push for a raw economic development, it can be argued that most Amazon countries present paradoxical views, which lead to empty promises. 261 Boyd, supra note 7, at 65.

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Bolivia is the main example. One of the poorest and least developed countries in Latin America, and an economy that is largely based on strategic minerals, Bolivia’s territory is 65.9 percent Amazonia. It has the second highest rate of forest loss in Amazonia. However, its constitution, the newest one in the region, presents bold and innovative provisions that, at a first glance, seem to prioritize environmental protection. However, the divide between indigenous groups over economic development often leads to tensions, and require a balance between constitutional rights that is hard to achieve. In addition to forest loss, indigenous groups are often at risk of losing their lands due to economic development. While the recent constitutions of Ecuador (2008) and Bolivia (2009) are considered impressively innovative, demonstrating a leadership in global environmental constitutionalism, no evidence of the effectiveness of such provisions has yet been shown. On the contrary, their policies have failed to align with the promises and values set forth in their respective constitutions. Indeed, their deforestation rates are one of the largest among Amazon countries. Colombia, Guyana and Suriname are the best examples of countries with historically low deforestation rates. However, it is difficult to draw conclusions as to how they achieved this feat. With a more stable constitutional development, Colombia is currently the third largest economy in South America. While social inequality and unemployment rates remain high, and the economy remains largely dependent upon commodity prices, deforestation rates have remained roughly flat for the last decade, and are relatively low. Colombia’s example can be an indication that the dependency on commodities and natural resources, as well as social inequality and poverty do not necessarily induce deforestation. Looking solely at the relationship between the constitutional development and deforestation, an argument could be made that a stable legal system contributes significantly to the observance of the law. Guyana has virtually its entire territory covered by the Amazon rainforest, and more than 30 percent of its population living under the poverty line. Regardless, its deforestation rates are historically low. Guyana’s constitution was only recently adapted to include an individual right to the environment. Suriname can be considered the least developed country in constitutional environmental law as there is no individual right to the environment and no protection of nature whatsoever. Although the constitution established a plain right to the exploitation of natural resources, deforestation rates were historically low. While they have slowly increased, it seems that the transparency of the preference for economic exploitation does not have a direct negative effect on the environment. As such, the absence of an individual right to the environmental had made little practical difference in protecting the Amazon rainforest.

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While Brazil’s deforestation rates have roughly declined in the past years, it is slowly on the rise again, hinting that it is a direct effect on the policies adopted by the central government rather than on the law itself. Although the economy is rather diversified, with several energy sources that could be effective in addressing the countries’ needs, the current government still insists in pursuing energy development projects that are unarguably negative for the region. Peru had historically low rates of deforestation, but these are increasing as the economy develops and gets more diversified. Venezuela had flat deforestation rates in the Amazon rainforest. However, its percentage of the biome is minimal. As Guyana and Suriname have virtually their entire territory composed of Amazonia, no argument can be made as to the direct relationship between the area to be protected and how effective it is to indeed do so. Environmental constitutionalism does set an example for legislators and policy-makers. Regardless of the discussions of whether constitutional environmental rights are effective in achieving the goal of environmental protection, it is undeniable that it is a symbol. It might not have achieved measurable and quantifiable effects and outcomes yet, but it certainly had an impact on society, and an influential role in shaping politics, economics and culture. While there are many benefits to entrenching constitutional rights to a healthy environment, their relevance is more symbolical than practical. Indeed, it is only the first step on a long journey. In order to be successful, constitutional environmental rights have to be replicated by national laws and recognized by the courts. Most importantly, mechanisms need to be set in place to indeed make judicial decisions effective, and able to deliver the results they proclaim. Since most of the Amazon countries have had dictatorships that quickly overruled the rights and guarantees set forth in the constitution, it is indispensable that actions follow words. It is certainly relevant that environmental protection was recognized as one of the main goals of new democracies. But history has shown that constitutions are not written in stone. As democracies that are still developing, the Amazon countries largely depend on the intention of the executive power to indeed safeguard the environment, as they are yet to be held accountable for the failure to protect the environmental provisions established in the constitution. As governments change, policies are also altered, and it is often the case that success stories have setbacks once priorities shift. Brazil is one of the biggest examples, with deforestation rates that are again on the rise, after almost a decade of contrary movement. While it is certainly important that governments have the intention to put environmental protection as a priority, they need to catch up with those intentions, and start matching policies to what they proclaimed. It is the only

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way that the world will still be able to preserve half of the planet’s remaining tropical forests and its most species rich region. It remains to be seen whether environmental law can provide smarter ways to combine environmental protection and development, allowing for projects to be introduced in the region with minimal impact, and to reduce poverty whilst also sheltering biodiversity. In conclusion, while environmental constitutionalism has induced an environmental agenda in Amazon countries, it has not yet filled the gap of the regional framework. With the lack of precise commitments in international laws, regional laws, and constitutional laws, Amazonia remains unprotected. The next chapter looks at alternative solutions. By analyzing some specific case studies that have successfully curbed deforestation at the national level, it provides some examples that could be replicated in other Amazon countries, or even be adopted by the acto as a regional policy of the organization.

chapter 12

Protected Areas The protected areas have been one of the most effective strategies in the conservation of the assets and benefits/services of the biological diversity components, as well as of the ecological, socio-cultural processes and the socio-ecological systems that they shape. Nonetheless, the loss of biodiversity continues and has accelerated in many geographic spaces.1

∵ Protected areas are the fundamental building blocks of virtually all national and international conservation strategies.2 They are critical for maintaining a healthy environment for people and nature, are essential for biodiversity conservation, and vital to the cultures and livelihoods of indigenous peoples and local communities.3 In addition, protected areas provide several ecosystem services, support local livelihoods, national development, and the global environment.4 They deliver clean air and water, benefit millions of people through tourism, and provide protection from climate change and natural disasters.5 The International Union for Conservation of Nature (iucn) defines a protected area as a “clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the longterm conservation of nature with associated ecosystem services and cultural values”.6 The Convention on Biological Diversity defines a protected area as 1 2 3 4 5 6

1 REDPARQUES, Regional report, Implementation of the program of work on protected areas 2011–2015 Amazon biome region (2016), available at http://redparques.com/wp-content/up loads/2016/12/Implementation-of-the-PoWPA-2011-2015-Amazon-Biome.pdf. 2 Nigel Dudley, ed., Guidelines for Applying Protected Area Management Categories, x (iucn, 2008). 3 unep-wcmc and iucn, Protected Planet Report 2016, 1 (2016). 4 Cláudio C. Maretti et al., State of the Amazon: Ecological Representation in Protected Areas and Indigenous Territories (wwf Living Amazon Initiative, 2014). 5 unep-wcmc and iucn, supra note 3, at 1. 6 Nigel Dudley, supra note 2, at x.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_013

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a “geographically defined area which is designated or regulated and managed to achieve specific conservation objectives”.7 The term encompasses a wide range of conservation models with varied governance and management systems, such as government-managed areas focused solely on nature conservation, indigenous territories managed to support cultural, spiritual and natural values, extractive reserves maintaining traditional, low impact uses of natural resources, and privately protected areas managed for conservation and tourism income, amongst others.8 The iucn Guidelines for Applying Protection Area Management Categories were adopted in 2008.9 It includes seven categories of protected areas, namely (Ia) Strict Nature Reserve; (Ib) Wilderness Area; (ii) National Park; (iii) ­Natural Monument or Feature; (iv) Habitat/Species Management Area; (v) Protected Landscape/Seascape; and (vi) Protected Areas with sustainable use of natural resources.10 The categories are recognized by international bodies such as the United Nations and by many national governments as the global standard for defining protected areas.11 As such, these are often used by governments, including several Amazon countries, for legislative purposes.12 The iucn categories have also traditionally formed the basis to identify protected areas in Amazonia by the act/acto.13 A growing increase in the number and extent of protected areas established has been observed throughout the world. These are the result of government commitments towards the growing use of protected areas as a strategy for conservation, and represent a proof of their value and efficiency.14 Most specifically, the Strategic Plan for Biodiversity 2011–2020, with its 20 Aichi Biodiversity 7 8 9 10 11 12 13 14

7 8

9 10 11 12 13

14

Convention on Biological Diversity art. 2, Jun. 05, 1992, 1760 u.n.t.s. 79 [hereinafter cbd]. wwf, wwf Living Amazon Report 2016: A regional approach to conservation in the Amazon, 33 (2016), available at http://assets.worldwildlife.org/publications/889/files/original/LIV ING_AMAZON__REPORT_2016_MID_RES_SPREADS.pdf?1465588596&_ga=1.198740527.1 409461461.1485839659. See Nigel Dudley, supra note 2. iucn, Protected Areas Categories, https://www.iucn.org/theme/protected-areas/about/ protected-areas-categories (last visited Jan. 17, 2017). Nigel Dudley, supra note 2, vii. Id. act, Pro Tempore Secretariat, Compilation of Projects from cemaa from 1989–1995, 35 (Dec. 1995), http://otca.pagina-oficial.com/assets/documents/20160704/658187c77044007 4bf34c5f48d35036f.pdf. unep-wcmc and iucn, supra note 3, at 1.

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Targets,15 and the 2030 Agenda for Sustainable Development16 represent essential commitments reached in the past decade. Strategic Goal C of the Strategic Plan for Biodiversity 2011–2020 addresses efforts to conserve ecosystems and species in both terrestrial and marine environments. Such efforts include addressing both quantitative and qualitative aspects of Target 11, including coverage and ecological representation, as well as ensuring effective and equitable management of protected areas, safeguarding important places for biodiversity and developing well-connected protected area systems integrated into the wider landscape and seascape. Target 11, in turn, pledges to: By 2020, at least 17% of terrestrial and inland water areas and 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.17 According to iucn’s most recent report and best available estimate, based on the World Database on Protected Areas (wdpa), there are 202,467 terrestrial and inland water protected areas, covering 14.7 percent (19.8 million km2) of the world’s extent of these ecosystems (excluding Antarctica).18 Of the total amount, approximately 1 percent were designated since 2014, demonstrating that the world’s protected area estate continues to grow. However, the total area reflected has fallen overall compared to the 15.4 percent reported in 2014, as a result of changes to the dataset.19 Consequently, to attain 17 percent of terrestrial coverage, an additional 3.1 million km2 would need to be protected.20 15 16 17 18 19 20

15

16

17 18 19

20

UNEP/CBD/COP/DEC/X/2 (Oct. 29, 2010), The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, available at https://www.cbd.int/doc/decisions/cop -10/cop-10-dec-02-en.pdf [hereinafter Aichi Biodiversity Targets]. u.n.g.a. 70th Session, A/RES/70/1, Transforming our world: the 2030 Agenda for Sustainable Development (Oct. 21, 2015), available at http://www.un.org/ga/search/view_doc .asp?symbol=A/RES/70/1&Lang=E. Aichi Biodiversity Targets, Target 11. unep-wcmc and iucn, supra note 3, at 30. Designations change over time, including both increases and decreases in size, and in some cases, protected areas may be degazetted or no longer qualify for inclusion in the wdpa. Id., at 30. As of April 2016. Id., at 30.

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The most extensive coverage achieved at a regional level is for Latin America and the Caribbean, where 4.85 million km2 (24 percent) of land is protected.21 Half (2.47 million km2) of the entire region’s protected land is in Brazil, making it the largest national terrestrial protected area network in the world.22 However, the number alone is insufficient to ensure conservation, and the compliance with Target 11. Indeed, protected areas should cover the most important sites for biodiversity to ensure long-term protection of nature.23 An ecological representation of protected areas and species is essential.24 Protected areas should be equitably managed, and effective in protecting values and achieving goals and objectives.25 Finally, a well-connected systems of protected areas integrated into the wider landscape represents an integral part of achieving Target 11. Connectivity initiatives have been established throughout the world, and new protected ­areas are increasingly being considered as part of the wider landscape. A recent study compared connectivity across national and continental level protected areas networks, taking into account the dispersal abilities of species as well as the area of each habitat patch. Although South America showed a high connectivity level, the majority of protected areas with high ranks are outside the Amazon region. The study showed there is considerable room for improving landscape connectivity.26 Identifying areas that provide essential ecosystem services, as well as social and economic benefits from incorporating green infrastructure within development plans is challenging.27 It requires a broader approach that looks at the ecosystem as a whole. In ecosystems such as the Amazon rainforest, which spread across country boundaries, a regional approach is indispensable. Protected areas are integral to complying with the other Aichi Biodiversity Targets.28 For example, Target 5 establishes the goal of halving the rate of loss of natural habitats, including forests, and, where feasible, bringing it close to 21 22 23 24 25 26 27 28

21 22 23 24 25 26 27 28

Please note that the data and parameters used by iucn are different from the ones reported by the countries, which are included in the below. Id., at 32. See also unep-wcmc, Protected Area Profile for Brazil from the World Database of Protected Areas (Feb. 2017), available at www.protectedplanet.net. unep-wcmc and iucn, supra note 3, at 34. Id., at 35–36. Id., at 36–37. L. Santini, S. Saura, C. Rondinini, Connectivity of the global network of protected areas 199–211 (2016). Id., at 39. See, generally unep-wcmc and iucn, supra note 3.

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zero, with degradation and fragmentation significantly reduced.29 Protected areas conserving natural habitat, including forests, woodlands, and grasslands, play an important role in reducing rates of habitat loss, degradation and fragmentation.30 Indeed, studies have shown that changes in land cover inside protected areas are on average 15.7 percent less than in non-protected areas.31 The same results have been observed inside the Amazon rainforest.32 Some countries, however, have experienced better results than others, both in terms of establishing protected areas, than in effectively implementing conservation inside them. Some of the successful experiences are worth replicating elsewhere. Within this context, a regional approach through the acto, acting as a forum for information exchange, capacity building, and technology transfer inducer, can be immensely helpful. This chapter discusses protected areas and their role as a conservation tool for Amazonia. Section 12.1 presents the most recent data on existing protected areas and indigenous territories in Amazonia. Based on a report developed by Redparques, it frames the regional scenario through the experience of each country, and the changes observed in the 2010–2015 period. Section 12.2 presents the deforestation rates inside protected areas and indigenous territories, based on a report developed by raisg. The section builds on the information presented in Chapter 2 and 3, showing the effectiveness of establishing protected areas in terms of lowering deforestation rates. The data is updated until 2013. Section 12.3 analyzes the need for a regional effort on protected areas, and discusses why such an approach would be preferable in the case of Amazonia, as opposed to an individual effort by each country. Section 12.4 explains some of the existing initiatives, including some unsuccessful discussions developed within the act’s framework, as well as other more successful initiatives adopted by Redparques. Section  12.5 focuses on a national approach to improve the national systems of protected areas. The Amazon Region Protected Areas (arpa) program, advanced by the Brazilian government, constitutes the largest national program for the management of protected areas. The program is presented in Section 12.5, with some lessons that could be taken up by the acto at the regional level. The project had the intended result of reducing deforestation rates, focusing on the procedural hurdles of conservation through protected areas, such as financial challenges, capacity building, and technical capacity. 29 30 31 32

29 30 31 32

Aichi Biodiversity Targets, Target 5. unep-wcmc and iucn, supra note 3, at 18. Id., at 18. See the results in the following section.

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Section 12.6 looks at the model for transboundary protected areas, and the – limited – initiatives observed throughout Amazonia. Through these specific examples, it shows how bordering countries have found innovative ways to share resources and induce conservation in a collaborative manner. Finally, Section 12.7 looks at one of the alternative management models for protected areas, which moves beyond the government focus alternative: private protected areas in the context of the national systems of protected areas of Amazon countries. Although indigenous areas and communal approaches are an essential element of conservation efforts in Amazonia, these are not discussed in-depth here. Section 12.10 concludes, presenting some of the lessons learned and recommendations for Amazon countries as a whole, as well as avenues for a more engaged approach by the acto specifically. 12.1

Protected Areas and Indigenous Territories in Amazon Countries

The first protected area established in Amazonia was the Pacayasamiria Park in Peru, recognized in 1954.33 From the 1950s, protected areas have largely advanced. As of 2013, protected areas covered 21.8 percent of the Amazon region. Rates varied between countries from 16 to 37 percentage of coverage.34 Most Amazon countries also recognize indigenous territories, which covered 27.5 percent of the Amazonian territory in the same period, varying from 22 to 67 percent between countries. These include around 3,000 territories, not all officially recognized.35 It should be noted that there is some overlap between protected areas and indigenous territories. Most Amazon countries have considerably increased the proportion of protected areas in recent years. According to data from wwf, protected areas in Amazonia have increased by 10 percent since 2005. It encompasses an area over 683,000 km2, with 188 new protected areas, almost a third of the current total of protected areas in the Amazon. All but two countries, Suriname and Venezuela, have seen protected areas grow. Brazil and Peru have observed the largest national growth, with 58 and 24 percent respectively.36 Table 32 summarizes the categories of protected areas by Amazon countries, along with the respective areas each covers. 33 34 35 36

33

34 35 36

act, Pro Tempore Secretariat, Compilation of Projects from cemaa from 1989–1995, 165 (Dec. 1995), http://otca.pagina-oficial.com/assets/documents/20160704/658187c77044007 4bf34c5f48d35036f.pdf. raisg, Deforestación en la Amazonía (1970–2013) 6 (2015), available at https://raisg.socio ambiental.org/system/files/deforestacion_en_la_Amazonia%281970-2013%29_0.pdf. wwf, supra note 8, at 30. Id., at 31.

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Protected Areas Table 32

Country

Bolivia38

Categories of the protected areas of the Amazon biome/country (2010 vs. 2015)37

Category national

National Park Natural Monument Wildlife Reserve Natural Integrated ­Management Area Immobilization Natural Reserve Departmental Park Municipal Park Total Brazil Ecologic Station Biologic reserve Park Environmental Protection Area Area of relevant ecologic interest Greenwood Extractive reserve Sustainable development reserve Wildlife Refuge Area of ecologic interest Private reserve of natural heritage Indigenous Territories Total Colombia39 National Natural Park National Natural Reserve Flora Sanctuary 37 38 39

37 38 39

iucn Category

ii iii vi vi

No.

Km2

No.

2010

Km2

2015

4 1 2 2

52,824 11 49 115

4 1 2 2

52,824 11 49 115

Ia Ia ii v iv

1 2 2 14 18 13 44 23 3

73 156 59 53,287 99 48 24,948 107 189

1 2 2 14 19 13 45 34 6

73 156 59 53,287 108 49 26,051 172 446

vi vi vi

58 69 19

28,283 123 95

58 71 20

29,851 137 110

iii iv iv

1 4 51

64 446 441

1 6 55

64 446 466

ii ii ii

379 682 14 2 1

1,091,936 381 1,146,778 709 47,916 14 19,000 2 102 1

1,135,649 1,193,550 74,268 19,927 102

iii

Based on the table developed by Redparques (small modifications). Id., at 28–30. The same information reported in 2010 is presented, subject to changes on the basis of updated official information. There are some discrepancies in the original report as published by Redparques. While the summary of the total areas, based on the data provided by them, shows a general decrease in the total area covered by protected areas, the report concluded there was an

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Table 32

Country

Ecuador

Categories of the protected areas of the Amazon biome/country (2010 vs. 2015) (cont.)

Category national

Protective and regional forest reserve Protective forest zones and forests of general interest – Law 2 dated 1959 La 2 dated 1959 Regional Natural Park Natural Reserve of the Civil Society District for Conservation of Soil and Waters Total Biologic reserve Ecologic reserve National Park Wildlife Refuge Reserve for production of fauna Municipal Ecological Conservation Area Total

iucn Category

No.

Km2

No.

2010

Km2

2015

1

156,363

8

1,310

vi

1

78,523

1

78,523

iii vi

3 0

82 0

3 3

82 0

iv

1

2,908

1

2,908

Ia Ia ii iv vi

23 4 2 7 1 1 0

304,89440 413 1,755 22,197 37 5,805 0

33 5 2 7 1 1 1

177,122 1,345 1,755 22,347 37 5,950 160

15

30,207

17

31,593

40

40

increase in the extension of protected areas in the Amazon region (1 percent increase, totaling 2,118,743 km2). Specifically, the data on the protective and regional forest reserve doesn’t seem to be correct. While there were 7 additional areas created in the period, the total area was reduced considerably. In addition, there were three additional natural reserves of the civil society, but these encompass a small area, totaling 0,365457 km2. Since the information could not be checked (Colombia’s website on the national registry of protected areas – http://runap.parquesnacionales.gov.co/reportes – does not divide protected areas by biome, making it harder to fact check Redparques’ report), it was reproduced as is here, with the caveat that the information does not seem to be correct. The total included in the original report did not include the protective forest zones, but was corrected here.

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Protected Areas Country

Guyana

Peru

Suriname

Venezuela

Grand Total

Category national

National Park Natural Reserve/Resources management area Indigenous Territories Total National Park National Sanctuary Historic Sanctuary Protection Forest Communal reserve National Reserve Regional conservation areas Hunting reserve Reserved zone Category Transitory Total National Park National Natural Reserve Management and use area Total Forest Area Under Protection Natural Monument National Park Forest Reserve Wildlife Refuge National Hydraulic Reserve Biosphere Reserve Protection Zone Total

iucn Category ii iv

ii iii iii vi vi vi vi vi

ii iv vi v iii ii vi iv vi vi vi

No.

Km2

2010 1 1

No.

Km2

2015 627 3,717

1 3

627 12,360

102 104 9 4 1 3 8 5 5 0 3

34,976 102 39,320 106 74,673 11 2,988 4 326 1 3,878 3 17,775 10 34,713 5 12,436 7 0 0 19,131 4

34,976 47,963 90,255 2,988 326 3,878 21,666 34,713 25,893 0 13,660

38 1 11 4 16 7 19 6 8 1 1 1 3 46 938

165,921 45 12 1 1,881 11 177 4 2,070 16 7,021 7 65,892 19 90,128 6 118,485 8 174 1 494 1 22,109 1 74,260 3 378,565 46 2,121,041 986

193,378 12 1,881 171 2,064 7,021 65,892 90,128 118,485 174 494 22,109 74,260 378,565 2,077,523

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According to the data from Redparques, Brazil and Peru are the leading examples. Suriname has slightly reduced the overall coverage, while Venezuela has remained the same. In 2010, there were approximately 2,121,041 km2 of protected areas reported in Amazonia. The 938 protected areas covered about 31 percent of the total Amazonian territory. In 2015, a 2,077,523 km2 of protected areas was reported, with the establishment of 48 new areas.41 Brazil reported the greatest increase in surface coverage. With 46,772 km2 added to its system of protected areas, the total 4,07 percent increase. Peru had a 1,16 percent increase equivalent to 27,457 km2, and Guyana a 1,21 percent increase with an added territory of 8,643 km2. 12.2

Deforestation in Protected Areas and Indigenous Territories

As discussed in the beginning of this chapter, protected areas are an integral tool to decrease deforestation and forest degradation. By conserving natural habitats, they play an important role in reducing rates of habitat loss, degradation and fragmentation. A 2015 study developed by raisg shows that protected area and indigenous territories in Amazonia have successfully reduced deforestation rates in the region. While the cause and consequence link between protected areas and the effectiveness of the mechanism as a tool for forest protection are still unclear, the data, which is summarized in Table 33, shows that deforestation rates inside these areas are significantly lower than rates in other areas of Amazonia.42 A 24.6 percent forest loss was observed outside protected areas and indigenous territories, while inside it amounts to 2.2 percent. These rates, however, change according to the historical period. Until 2000, the loss of forest cover within protected areas and indigenous territories did not exceed 7.5 percent of total deforestation. In the period from 2000 to 2013, it reached 14.2 percent.43 In general, there is a trend to decrease deforestation in these areas, with a clear correlation observed in Brazil, Bolivia, and Ecuador. Colombia, Peru, and Guyana have had inconsistent deforestation rates, with periods of increase and periods of decrease. Venezuela is the only country with an opposite trend, with evidence from increased deforestation. Suriname has maintained the rates.44 41 42 43 44

41 42 43 44

See the note about Colombia on the inconsistency of the data. For this reason, the decrease in protected areas territory was not noted specifically here. raisg, supra note 34, at 6–7. Id., at 7. Id., at 6–7.

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Approximately 2.1 percent of forest cover was lost until 2013, clearly showing how rates are lower inside protected areas. The majority of deforestation inside protected areas occurred in protected areas with direct use, with the largest rates in national and departmental areas, both with 2.9 percent deforestation rates. As expected, protected areas in which human activities are mostly restricted are more efficient in promoting conservation. Indeed, the areas of direct use, which allow some sort of human activity, show a forest cover loss rate 2.5 times higher than that of indirect use in the period 2005–2010.45 Many indigenous territories play a similar role in conservation promotion as protected areas, although many differences are observed in terms of governance structure and approach. To guarantee the role of indigenous territories, the acto’s Coordinator of Amazon Indigenous Organizations (coica) has developed a Strategy for the Conservation of Indigenous Territories. The Table 33

Deforestation inside protected areas46

Deforestation rates

% deforestation over original forest

Accumulated 2000– 2005– 2010– 2000– Total Estimated deforestation 2005 2010 2013 2013 accumulated original forest cover until 2000 Km2 Natural Protected 1,472,051 Areas (3) Departmental direct 274,122 use Departmental104,857 ­indirect use National direct use 381,110 National indirect use 678,641 National use direct / 4,097 indirect National transitory 29,223 use

Km2

Km2

15,568

6,981 5,910 2,576 1.1

2.1

1,331

2,972 2,586 1,001 2.4

2.9

576 6,905 6,546 16 193

45 46

45 46

Id., at 7. This table was developed by raisg. Id., at 7.

281

Km2

Km2

%

%

85

80 0.4

1.0

1,721 1,626 1,977 1,569 1 11

706 1.1 777 0.6 1 0.3

2.9 1.6 0.7

10 0.3

0.9

29

34

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objectives of the strategy are to promote and ensure autonomy through the consolidation of indigenous territorial integrity. As fundamental aspects of the lives of indigenous peoples in the Amazon basin, the territorial autonomy is achieved through the holistic management of natural and cultural heritage.47 As of December 2013, indigenous territories extended over an area of 2,090,705 km2. These include territories officially recognized for traditional use, areas without official recognition, land reserves and proposals for land reserves. Of these, 91 percent maintained originally forest cover. Approximately 2.3 percent of the forest cover was lost until 2013.48 In the recent period (2000– 2013), a 35.8 percent increase of the total cumulative deforestation is observed. Deforestation rates inside indigenous territories can be observed in Table 34. Table 34

Deforestation inside indigenous territories49

Deforestation rates

% deforestation over original forest

Estimated Accumulated 2000– 2005– 2010– 2000– Total deforestation 2005 2010 2013 2013 accumulated original until 2000 ­forest cover Km2

Km2

Indigenous 1.906.029 28.331 Territories Traditional 415.285 7.496 ­Occupation without Official Recognition 39.656 334 Proposal for ­Territorial Reserve Territorial Reserve or 29.246 199 Intangible Zone Recognized 1,421,841 20,303 ­indigenous territory

Km2

Km2

%

%

6.413 6.505 2.907 0,8

2,3

1.269 1.471 1.115 0,9

2,7

21

37

15 0,2

1,0

26

33

5 0.2

2.3

5,096 4,963 1,772 0.8

2.3

47 48 49

47 48 49

Km2

wwf, supra note 8, at 31. raisg, supra note 34, at 7. This table was developed by raisg. Id., at 7.

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While in both absolute and proportional terms, the accumulated deforestation has been larger in indigenous territories than in protected areas, the loss of forest in the recent period is higher in protected areas than indigenous territories, with a 49.8 percent rate and a 35.8 percent rate respectively. As such, there were larger deforestation rates in indigenous territories until 2000, which have been since reversed. Protected areas, however, have experienced faster deforestation and, in absolute terms, the area lost is practically the same.50 Despite the increase in protected areas and indigenous territories, and the much lower deforestation rates inside those, protection “is not simply a numbers game”.51 While the Amazon has one of the best systems of protection globally, it has several gaps in representativeness and effectiveness. Experience also shows that not all protected areas are maintained in the long term, with cases observed throughout countries of protected areas reduced or reversed to accommodate infrastructure projects.52 Systems need to be ecologically ­representative, connected and effectively and equitably managed to ensure conservation objectives are achieved.53 Most importantly, the national systems need to be connected at the regional level, ensuring the protection of the Amazon ecosystem as a whole. 12.3

The Case for a Regional Effort for Protected Areas

The role of protected areas has evolved over time. While the contributions of nationally established protected areas are recognized, the traditional approach of setting aside individual parks is limited. These are often small, isolated and fragmented, failing to achieve the original goal to which they were designed.54 In order to achieve their full potential, planning of protected areas is desired. In a shared ecosystem such as the Amazon rainforest, planning shall be done at the regional level. Indeed, there is a need to think beyond the boundaries of protected areas. Systems of protected areas include core protected areas, buffer zones, and 50 51 52 53 54

50 51 52 53 54

Id., at 7. wwf, supra note 8, at 32. Cases were observed in the Brazilian Amazon, covering a 88,341 km2 area, mostly due to hydroelectric power plants. Id., at 32. Id., at 32. Lucy M. Sportza, Regional Approaches to Planning for Protected Areas and Conservation, 1999 prfo Proceedings, 221, available at http://casiopa.mediamouse.ca/wp-content/uploads/2010/05/PRFO-1999-Proceedings-p221-228-Sportza.pdf.

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­areas of linkage of connectivity.55 As the Amazon ecosystem does not respect borders, these are often transboundary. Regional initiatives for the protection of the environment are more common in marine ecosystems. Through the umbrella of the United Nations Environment Programme (unep), and its Regional Seas Programme, the uniqueness of a marine ecosystem is taken into account before devising and applying legal and management tools, which often involve a multitude of countries.56 A regional approach provides several advantages. It supports tailor-made management, which reflects the political, legal and ecological characteristics of a given region, and allows the evaluation of a multitude of approaches from which best practices and lessons learned can be applied to challenges elsewhere. Additionally, a regional approach often facilitates cooperative action, through the participation of a more similar group of stakeholders. It promotes bottom-up approaches that induces cooperation and supports the co-development and implementation of ecosystem-based management regimes.57 Furthermore, it establishes an interlinked network, rather than a series of individual sites, inducing connectivity and avoiding “island” like areas with endemic species. As such, it protects species, lowering the risk of extinction. Finally, it addresses the needs of the ecosystem as a whole rather than of countries individually, promoting an adequate coverage of Amazonian ecosystems. In addition to providing science-based advantages, a regional approach is practical. Through combined resources, funding and monitoring are facilitated. Countries can pool resources and learn from each other’s experiences, rather than starting each process from scratch in every new protected area established. Nonetheless, a regional approach for protected areas, which is integrated into broader regional land-use planning, requires political will, local support, and the necessary administrative and legal framework.58 Protected area planning should also be linked to other planning frameworks, such as national biodiversity strategies. Although there still isn’t an official regional approach towards protected areas within the act/acto’s framework, there had been many attempts at developing one. 55 56 57 58

55 56 57 58

Id., at 222. Julien Rochette et al., The regional approach to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, 49 Marine Policy 109–117 (2014). Id., at 109–110. David Sheppard, Twenty-first Century Strategies for Protected Areas in East Asia in 18(2) The George Wrights Forum 45 (2001), available at http://www.georgewright.org/182sheppard .pdf.

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451

Existing Regional Approaches for Protected Areas

Initiatives to promote a regional approach to protected areas in Amazonia through the act/acto’s framework began in 1989, in the occasion of the first meeting of the Special Commission on Environment for the Amazon (scea).59 scea approved a resolution on protected areas in Amazonia as the result of the First International Seminar on Protected Areas of the Amazon Basin.60 The resolution included recommendations for Amazon countries to better structure their national system of protected areas, and empower the specific ­agencies in charge with a higher hierarchical level. The commission assessed the numbers of protected areas in each country,61 as well as the states of conservation within them.62 The commission noted a problem in deforestation inside protected areas, in the rate of 60 percent of areas, especially due to mining, roads, and illicit agriculture. The scea proposed joint efforts between protected areas agencies, as well as bi-national or tri-national parks on the border of Amazon countries. These included transboundary protected areas in three locations, namely: (i) in Brazil, Colombia, and Peru, in Amacayacu; (ii) in Bolivia and Brazil, in MapucheItenes or Guapore sector (changing the category and expanding the Guaporé Biological Reserve); (iii) in Peru and Brazil.63 Specifically, it suggested the establishment of a Network of National Parks and Protected Areas for Latin America and the Caribbean,64 as well as a sub-network for Amazonia, as a mechanism to promote, organize, and logistically support the area, developed with the assistance fao and other international organizations.65 Other suggestions for joint efforts included (i) coordinate the management plans of the Neblina in Brazil and Serrania de la Neblina in Venezuela; (ii) establish a protected area in 59 60 61 62 63 64 65

59 60 61

62

63 64 65

act, supra note 13. Id., at 31–33; 42–44 (Annex vi: Resolución Sobre Areas Protegidas en la Cuenca del Amazonas). In 1989, the percentage of protected areas within the Amazon Basin was: Brazil 1.64%, Bolivia 0.13%, Colombia 0.25%, Ecuador 0.25%, Peru 0.28% and Venezuela 0.18%. Including 21 national parks, 8 biological reserves, 11 ecological stations, 1 ecological reserve, 1 fauna reserve, 1 natural monument. Id., at 36. Considering a total of 43 protected areas identified, 29 percent were in excellent state of conservation, 46.5 percent in good state, and 8.3 percent in regular state. No information could be found on the remaining. Id., at 38. Id., at 39–41. Red de Parques Nacionales y Areas Protegidas para la América Latina y el Caribe. The idea was picked up by Redparques, as will be explained in the following section. act, supra note 13, at 31–33.

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the Pico Roraima between Brazil, Guyana and Venezuela (Canaima); (iii) promote a coordinated management of the Pampas del Heath and Maguaripi; and (iv) developing a joint program to provide information about protected areas in Amazonia.66 Finally, a specific program for national parks and other protected areas within the framework of the act was suggested, as well as need to identify protected areas that could serve as models for improving capacity. At the second scea, the protected areas group noted the need to ensure an adequate coverage of Amazonian ecosystems represented in the national systems of protected areas, as well as to induce adequate ways to monitor protected areas, and once again suggested the development of a regional network.67 While the ideas were valid, and addressed the regional needs of countries, the acto was slow to develop initiatives. The topic of protected areas was constantly discussed by the organization, but few initiatives moved forward. While many meetings were conducted, few achievements arose other than agreements on gaps and needs from countries. As seen in Chapter 9, most initiatives were led outside of the scope of the organization, with limited participation of the acto. Redparques In particular, the work developed by Redparques is ultimately filling the gap in regional cooperation in protected areas. The Latin American Technical Cooperation Network in National Parks, other protected areas, flora and fauna (Redparques) is a mechanism comprised by the public institutions of 19 Latin American countries in charge of the National Protected Areas Systems (npas), with the goal to promote technical cooperation, foster training, strengthen the technical capacity for the conservation of ecosystems and management of protected areas, promote trust between the countries, and achieve institutional development necessary to adequately respond to the conservation challenges.68 In 2008, based on the experience of the act/acto – in particular, the idea advanced by scea to develop a regional network –, as well as the regional efforts to implement the cbd Programme of Work on Protected Areas (PoWPA), Redparques developed a “vision for the conservation of the physical and cultural diversity of the Amazon biome, based on the ecosystems”.69 The joint 66 67 68 69

66 Id., at 39–41. 67 Id., at 165. 68 Redparques, supra note 1, at 17. 69 uicn, Lecciones aprendidas y buenas prácticas para la gestión de áreas protegidas amazónicas 37 (2016), available at http://leccionesamazonia.com/wp-content/uploads/ 2016/05/UICN-Areas-Protegidas-amazonica-digital.pdf.

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vision on regional conservation aimed to contribute to the effective administration and management of the protected areas and the maintenance of goods and services, and to the integrity, functionality and resilience of the Amazon biome against the natural and anthropogenic pressures in the context of climate change, benefitting the economies, communities and biodiversity at all levels, from local to global.70 The initiative was led by the protected areas systems in the Amazonian countries and the French Guyana territory. This approach was arranged in collaboration with the Secretariat of the Convention on Biological Diversity (scbd),71 wwf and iucn,72 with the limited participation of the acto and the Community of Andean Nations (can).73 A memorandum of understanding was signed in 2009, joining technical and financial efforts to promote the Amazon Vision’s work agenda.74 The 2020 Vision for Amazonia seeks to consolidate “an ecosystem-focus shared vision of biological and cultural conservation of the Amazon biome, that contributes to the effective administration and management of the national systems of protected areas and the maintenance of the ecosystem’s ­assets and services, the integrity, functionality and resilience of the biome in respect of the effects of natural and anthropic pressures in a context of global change.”75 The vision was developed around four key components of the PoWPA: (i) conservation opportunities, according to goals and priorities defined by the countries for the Amazon region, (ii) integrating the vision of indigenous and local communities (relation between cultural diversity and social participation in the protected areas systems), (iii) monitoring and assessment of the effective management of protected areas; and (iv) prevention of development impact on the protected areas and sustainable financing strategies.76 70 71 72 73 74 75 76

70

Redparques, Amazon Vision, http://redparques.com/vision-amazonica/?lang=en (last visited Feb. 6, 2017). 71 And particularly influenced by cbd’s decision to invite implementation of regional initiatives integrating the protected areas within the most extensive countries, identifying conservation gaps and effective management tools of the protected areas. Decision IX/28 cop of the cbd (2008). 72 iucn highlighted the importance of consolidating the progress of the initiative in a regional report supplementing national efforts. Resolution 073 of the World Conservation Congress (2008). 73 Redparques, supra note 1, at 17. 74 Memorandum of understanding between Redparques, cbd, iucn and wwf (2009). 75 Redparques, supra note 1, at 18. 76 Redparques, Avances en el Desarrollo del Programa de Trabajo sobre Áreas Protegidas, Región: Bioma Amazónico 11 (Oct. 2010), available at http://redparques.com/wp-content/ uploads/2015/09/redparquesespanol.pdf. See also Redparques, supra note 1, at 18.

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­Specifically, an Action Plan (2010–2020) was produced to guide the implementation of the PoWPA. This plan supplements other activities in the region.77 In order to consolidate the initiative, two specific projects were developed: the Integration of Amazon Biome Protected Areas (iapa 2014–2018) and the Protected Areas, Natural Solutions to Climate Change (nascc).78 iapa intends to increase the ecosystem’s resilience to the effects of climate change and maintain the provision of goods and services in benefit of biodiversity, communities and local economies through the nspas by 2020. nascc, on the other hand, sought to integrate the protected areas systems as part of the strategies to tackle climate change in the Amazon biome, recognize and include those in the development plans at national and regional levels, as well as at international events, thanks to the provision of ecosystem services and their contribution to a better way for the local communities to adapt to climate change.79 Specifically, iapa seeks to create a network around the protected areas system in the Amazon region.80 The project supports the 2008 Vision, in an effort to consolidate it by 2018, throughout the eight Amazon countries. Funding is provided by the European Union. Other partners include unep, iucn, wwf, and fao, which will implement the project. iucn promotes participation and decision-making with indigenous groups, local communities, protected areas authorities, and other strategic stakeholders. It analyzes governance, equity, and benefit sharing for planning conservation in Amazonia. In addition, in a partnership with wwf, iucn will develop the protocol to measure the management effectiveness of protected areas.81 The acto is not listed as a partner on this project. Implementation will take the form of regional technical coordination between the protected areas systems of the Amazon countries, and strengthening of the operational management structure for the coordination of the vision. Other particular goals include: (i) to define two conservation landscapes, and start implementing action plans; (ii) to increase participation of indigenous communities, local communities, protected areas authorities, and other strategic actors to conduct a joint work on two prioritized landscapes; (iii) to designate a financial strategy, in order to support implementation of the Action 77 78 79 80 81

77 Redparques, supra note 1, at 19. 78 Id., at 20. 79 Id., at 20. 80 Redparques, supra note 70. 81 iucn, Integración de áreas protegidas del bioma amazónico (Fev. 2016), available at https:// www.iucn.org/sites/dev/files/import/downloads/nuevo_formato_iapa_final_web.pdf.

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Plan of the Amazon Conservation Vision (2010–2020), and the mechanisms for the financial sustainability of two conservation landscapes in process of implementation; and (iv) to develop a protocol for measuring management effectiveness of protected areas applied to the Amazon biome level.82 The initiative is still underway. nascc builds on the protected areas as a key aspect of adaptation to climate change, advocating for its inclusion in climate change strategies and development plans in the Amazon countries. Indeed, protected areas improve resilience, help mitigate the impacts of the events of a changing climate, and ensure the provision of ecosystem services and protect biodiversity. The effort was developed by Redparques and wwf, with funding provided by the Ministry of Environment of Germany.83 nascc’s vision is for protected areas systems to be an integral part of the strategies for addressing climate change in the Amazon biome. These shall be recognized and included in the development plans at the national and sub-national level, as well as at international events through the provision of ecosystem services and their contribution to a better way for local communities to adapt to climate change. Specifically, the expected results of the program were to: (i) develop a vulnerability assessment of climate change on the protected areas of the biome and its role in providing ecosystem services; (ii) develop, along with local actors, climate change strategies and planning tools to reduce the vulnerability of the ecosystem and communities in the Royal Eastern Mountain Range (Cordillera Real Oriental, cro, in Colombia, Ecuador, and Peru); and (iii) for the Vision for the Conservation of the Amazon to be recognized as an international framework that includes the npas (National Protected Areas) as an effective tool for climate change adaptation.84 While these goals had the 2016 deadline, there are still no reports on the results of the initiative. Sustainable Landscapes Project Other regional projects have recently been announced in the Amazon region. For example, the Amazon Sustainable Landscapes Program, largely funded by the gef, has the goal to protect over 80 percent of the Amazon, and boost efforts to combat climate change. It will be implemented by the World Bank as lead agency, the World Wildlife Fund (wwf) and the United Nations 82 83 84

82 Id. 83 Redparques, Protected Areas, Natural Solution against Climate Change (nascc), http:// redparques.com/snacc-vision-amazonica/?lang=en (last visited Feb. 7, 2017). 84 Id.

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­Development Programme (undp). While the concept of the project was approved, it has yet to be approved for implementation.85 Through an integrated approach in Colombia, Peru, and Brazil, the program aims to maintain 73,000,000 hectares of forest land, promote sustainable land management in 52,700 hectares, and support actions that will help reduce CO2 emissions by 300 million tons by 2030. The strategy includes implementing policies to foster sustainable land use, protected areas management and restore vegetation cover.86 Specifically, the project has four components: (i) Policies for Protected and Productive Landscapes, which will incorporate biodiversity management principles into selected sectors that are drivers of deforestation (i.e. agriculture, extractive industries and infrastructure) through sectoral agreements and/or instruments; (ii) Capacity Building and Regional Cooperation, which will complement national projects. It will maximize the efficiency of the broader program and provide opportunities for South-South learning; foster inter-governmental cooperation; use monitoring and evaluation tools and geospatial services; apply best practices and peer review; and develop portfolio-wide training and communication strategies; (iii) Integrated Amazon Protected Areas, which will increase conservation and protection of biodiversity through creation and expansion of protected areas, improved management and sustainable financing; and (iv) Integrated Landscape Management will contribute to climate change resilience and enhance sustainable land use by improving forest and land management, and reducing carbon emissions from deforestation.87 12.5

Brazil’s Amazon Region Protected Areas Program (arpa)

As part of the initiative to effectively reduce deforestation and promote conservation in the Amazon region, Brazil developed a national program for protected areas. Indeed, the country successfully created a national program to improve protected areas in Amazonia, and developed a long-term financial mechanism to support its national system. The Amazon Region Protected Areas Program (arpa) is a major facet of the preservation landscape of Brazilian Amazonia. It has the goal of expanding and strengthening the National

85 86 87

85 86 87

gef, Amazon Sustainable Landscapes Program, https://www.thegef.org/project/amazon -sustainable-landscapes-program (last visited Feb. 17, 2017). gef, New Regional Program to Protect the Amazon (Oct. 21, 2015), https://www.thegef.org/ news/new-regional-program-protect-amazon. gef, Amazon, https://www.thegef.org/topics/amazon (last visited Feb. 17, 2017).

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System of Protected Areas (snuc) in the Amazon, through the protection of 60 million hectares. In addition, it envisions ensuring financial resources for the management of those areas in the short and long terms, while promoting sustainable development.88 The arpa program is knitting together sweeping safeguards for the tropical forests of the Amazon to ensure the survival of some of the Earth’s richest biological treasures.89 The program is an effort to bring 12 percent of the territory of the Brazilian Amazon under protection and establish a US$220 million trust fund to finance the effective management of protected areas under ­perpetuity.90 It was launched in 2002, and is implemented in three consecutive phases in a 25-year horizon.91 Specifically, arpa has the following objectives: (i) to support the creation and consolidation of federal and state protected areas in the Amazon region; (ii) to assist in maintaining these protected areas; (iii) to propose mechanisms that guarantee the financial support of protected areas in the long term; and (iv) to promote the conservation of biodiversity in the region and contribute to its sustainable development in a decentralized and participatory manner.92 Through best practices in planning and management, the program moves beyond simply establishing protected areas, providing them with the tools to ensure conservation. Indeed, arpa supports protected areas by developing management plans, land tenure surveys, patrolling and other necessary actions to ensure full operation. It involves a multitude of stakeholders that ­collaborate at different levels. It is led by the Brazilian Ministry of the Environment (mma), and financially managed by the Biodiversity Fund (Funbio).93 88 89 90 91 92 93

88 89

90

91 92

93

arpa, What is Arpa?, http://programaarpa.gov.br/en/what-is-arpa-3/ (last visited Feb. 6, 2017). wwf, Amazon Region Protected Areas Programme: A future for protected areas in the Brazilian Amazon, http://wwf.panda.org/what_we_do/where_we_work/amazon/vision _amazon/models/amazon_protected_areas/financing/arpa/ (last visited Feb. 2, 2017). wwf, Establishing protected areas across the Amazon, http://wwf.panda.org/what_we _do/where_we_work/amazon/vision_amazon/models/amazon_protected_areas/estab lishment/index.cfm (last visited Feb. 2, 2017). Brazil, Decree No. 8,505, art. 2 (Aug. 20, 2015). Brazil, Decree No. 8,505, art.1 (Aug. 20, 2015), available at http://www.planalto.gov.br/ ccivil_03/_Ato2015-2018/2015/Decreto/D8505.htm. [The decree replaced the Decree No. 4,326 (Aug. 8, 2002), which created the program, available at http://www.planalto.gov.br/ ccivil_03/decreto/2002/D4326.htm]. See the full list of partners at Arpa, Arpa’s Partners, http://programaarpa.gov.br/en/ arpas-partners/ (last visited Feb. 2, 2017).

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Technical and operational implementation is overseen by the Instituto Chico Mendes de Conservação da Biodiversidade (ICMBio), the federal agency in charge of protected areas, as well as other protected area management agencies at the state level, in the states of Acre, Amapá, Amazonas, Maranhão, Mato Grosso, Pará, Rondônia e Tocantins.94 Finally, it induces public participation through the involvement of the surrounding communities and the creation of a management board (“conselho gestor”). arpa is executed through the contribution of financial, material and human resources for the maintenance and consolidation of conservation units; the use of ordinary resources of the mma and its related entities, and of resources received by virtue of agreements signed with other bodies of the federal administration directly or indirectly; the funding of national and international donations; and the contribution of goods and services by public or private entities.95 Funding is provided by the gef, the German Development Bank (KfW), wwf-Brazil,96 and the Brazilian Amazon Fund, managed by bndes.97 During the first phase, planned for the 2003–2007 period, arpa received a contribution of US$115 million.98 By July of 2006, 21 million hectares of new protected areas had been created under this program, which more than doubled the area under protection before the program.99 With the growing success and increasing support, the first phase was extended until 2010, with the revision of the original goals. With the extension, arpa successfully complied with the four specific goals established at the beginning of the program, exceeding the expected results. Overall, it supported 32 million hectares of protected areas, equally including areas with different primary management objectives.100 A summary of the results achieved in the first phase is provided in Table 35. Prior to choosing the areas for the program, arpa identified priority areas according to the 23 ecoregions of the Brazilian Amazon, and updated a map of 94 95 96 97 98 99 100

94

arpa, Arranjo Institucional, http://programaarpa.gov.br/arranjo-institucional/ (last visited Feb. 2, 2017). 95 Brazil, Decree No. 8,505, art. 2 (Aug. 20, 2015). 96 Made possible by the Gordon and Betty Moore Foundation. 97 arpa, supra note 88. The Amazon Fund will be explained in the following chapter. 98 See the executive summary of the arpa program Programa Áreas Protegidas da ­Amazônia – arpa, available at http://www.mma.gov.br/port/sca/ppg7/doc/arpareex.pdf. 99 Id. 100 arpa, Fase i, http://programaarpa.gov.br/fasei/ (last visited Feb. 2, 2017).

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Results of Phase 1 of arpa (2003–2010)101

Goal Goal 1 Create 9 million hectares in 16 protected areas of integral protection. Goal 2 Create 9 million ha in 27 sustainable use ­conservation units. Goal 3 Consolidate 7 million hectares in 20 protected areas. Goal 4 Establish a trust fund to support arpa, fund ­protected areas, and capitalize US$14 million.

Result

Compliance percentage

13.2 million ha in areas of 46% beyond integral protection created. the target 10.8 million ha in areas of sustainable use created.

20% beyond target

8.5 million ha of fully ­protected areas consolidated by the end of 2009. Protected Areas Fund (fap) established with US$24.8 million.

21% beyond the target 77% beyond the target

priority areas for conservation, along with the participation of ­communities.102 It was important to choose areas strategically, considering representativeness, connectivity, and place them in areas in which a larger economic threat was observed. With the results, it published a report that guided the program throughout the years.103 arpa tracked each of the subcomponents of Phase 1, analyzing the steps to achieve the four goals. Each subcomponent was ­analyzed 101 102 103

101 Id. 102 Mapa de Áreas Prioritárias para a Conservação, Uso Sustentável e Repartição de Benefícios da Biodi-versidade Brasileira. See Deliberação CONABIO n° 46/2006 (Dec. 20, 2006), available at http://www.mma.gov.br/estruturas/conabio/_arquivos/15_24112008035018 .pdf; and Portaria do mma n° 09/2007 (Jan. 23, 2007), available at http://www.icmbio.gov .br/portal/images/stories/portaria_mma_092007.pdf. 103 mma, Áreas Prioritárias – Mapas por Bioma, http://www.mma.gov.br/biodiversidade/ biodiversidade-brasileira/%C3%A1reas-priorit%C3%A1rias/item/489 (last visit Feb. 3, 2017). See also arpa, Áreas Prioritárias para a Conservação, Uso Sustentável e Repartição dos Benefícios da Biodiversidade Brasileira (2007), available at http://www.mma.gov.br/ estruturas/chm/_arquivos/biodiversidade31.pdf. See also arpa, Atualização das Áreas Prioritárias para a Conservação, Uso Sustentável e Repartição dos Benefícios da Biodiversidade – Bioma Amazônia (2013), available at http://programaarpa.gov.br/wp-content/ uploads/2013/01/AAPC-port.pdf.

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according to the goal, the results achieved, the resources investmented, challenges faced, and others expected for the following phase.104 The analysis of the lessons learned was particularly important for the continued success of the program. Local communities were strengthened through their increased participation. The management board of protected areas was created in 76 percent of the cases, and the management plan in 59 percent of the cases. In addition, over R$3 million were invested in projects for integration of communities in protected areas.105 Finally, the first phase developed mechanisms and tools of management of protected areas that can serve as models for the entire system of protected areas. Four specific mechanisms were developed: (i) the System of Evaluation of Protected Areas,106 (ii) the Strategy of Conservation and Investment, (iii) the Computerized System of Coordination and Management of the arpa Program, (iv) the management and financial control system (called the Brain System), and the Protected Areas Fund.107 These could serve as examples not only for other protected areas in Brazil, but throughout the Amazon countries. Indeed, a similar model could be developed by the acto, considering the particular differences in each country. The second phase started in 2010, and finished in the beginning of 2017.108 In the 2010–2015 period, arpa created 1,5 million hectares of new protected areas, and supported 6,8 million hectares of protected areas.109 Among other specific results, it consolidated 13 protected areas previously established, encompassing an area of 5,57 million hectares, supported the implementation of 23 action plans, implemented the strategic plan of capacity building, and ensured the financial sustainability of the Fund. In addition, specific funds for 104 105 106 107 108 109

104 arpa, Fase i, http://www.programaarpa.gov.br/wp-content/uploads/2012/09/TabelaArpa Fase1.pdf (last visited Feb. 2, 2017). 105 arpa, supra note 100. 106 arpa, Revisão da Ferramenta de Avaliação de Unidades de Conservação – fauc (Feb. 2010), available at http://programaarpa.gov.br/wp-content/uploads/2013/08/FAUC-2010 -Final-ap%C3%B3s-revis%C3%A3o-UCP.pdf. 107 Ferramenta de Avaliação de Unidades de Conservação (fauc), a Estratégia de Conservação e Investimento, o Sistema Informatizado de Coordenação e Gerenciamento do Programa Arpa (SisArpa), o sistema de gestão e controle financeiro (Sistema Cérebro) e o Fundo de Áreas Protegidas (fap). Id. 108 arpa, Relatórios do Arpa, http://programaarpa.gov.br/relatorios/ (last visited Feb. 2, 2017). 109 bndes, Fundo Amazônia, Relatório de Avaliação de Resultados: Programa Áreas Protegidas da Amazônia – arpa 4 (Jun. 22, 2015), available at http://programaarpa.gov.br/ wp-content/uploads/2016/02/Relat%C3%B3rio-de-Avalia%C3%A7%C3%A3o-de-Resul tados-2010_2015.pdf.

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states started to be developed, in an effort to find additional sources of funding at the sub-national level.110 The second phase included an additional aspect of monitoring of biodiversity, part of a larger federal effort to monitor conservation of biodiversity in protected areas in Brazil.111 The program started to be implemented within the arpa program in 2013, and is part of the National Plan of Adaptation to Climate Change. It provided capacity building for representatives of 50 protected areas in the arpa program.112 In the 2010–2017 period, arpa supported 95 protected areas, covering 52.2 million hectares. Since the second phase recently finished, the final report has yet to be published.113 A summary of the goals is provided in Table 36. Table 36

Goals of Phase 2 of arpa (2010–2017)114

Goal Goal 1 Goal 2 Goal 3 Goal 4

Create 13.5 million hectares of new protected areas of integral protection and sustainable use. Consolidate 32 million hectares of protected areas supported in the first phase, including 6.5 million hectares of protected areas not yet supported by the program. Consolidate 23 million hectares in the degree i and 9 million ­hectares in the degree ii. Capitalize the Protected Areas Fund (fap) in US$70 million, ­corresponding to the sum of what was capitalized during the first phase (US$24.8 million), with what was capitalized during Phase ii.

110 111 112 113 114

110 Id., at 7. 111 mma and ICMBio, Estágio de execução do Programa Nacional de Monitoramento da Conservação da Biodiversidade em Unidades de Conservação Federais apoiadas pelo Programa arpa, available at http://programaarpa.gov.br/wp-content/uploads/2016/12/ Relatorio-preliminar-programa-monitoramento.pdf. 112 Id., at 4. See arpa, Relatório B – Relatório Compreensivo de Progresso do Programa arpa (Dec. 2015), available at http://programaarpa.gov.br/wp-content/uploads/2016/01/Relato rio-B_revisadodez2015.pdf for a report of the 2013–2015 period. 113 See arpa, Histórico Criação de Unidades de Conservação, available at http://program aarpa.gov.br/wp-content/uploads/2017/01/Historico_Cria%C3%A7%C3%A3o_FaseI_II _III_jan2017-1.pdf for a historic overview of the protected areas created within the context of the program (updated Jan. 2017). 114 mma, Programa arpa, available at http://www.mma.gov.br/mma-em-numeros/pro grama-arpa (last visited Feb. 11, 2017).

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Although Phase ii only recently ended, Phase iii started in 2014, with a lasting period of 25 years.115 The period has the goal to consolidate 60 million ha of protected areas in the Amazon region, both at the federal and state levels.116 For that purpose, arpa created the Transition Fund (ft), also called arpa for Life, a long-term financial mechanism, privately managed, to ensure conservation of biodiversity and ecosystem services to the protected areas supported by arpa.117 It was launched to facilitate the transition from a donation-based system to a system financed by the federal and state budgets and environmental compensation.118 Specifically, the ft aims to provide resources and incentives for the federal and state governments to (i) enable the creation of six million hectares of new protected areas; (ii) complete the consolidation of sixty million hectares of protected areas and maintaining those, according to the Reference Frameworks established for the arpa Program, which constitute its Operational Manual; (iii) gradually increase the resources provided by the governments to the arpa Program, so that, after a period of twenty-five years, these governments will finance 100 percent of program costs, without any additional support from the ft or any other donor funds.119 The mechanism is essential to ensure long-term sustainability. arpa currently supports a total of 114 protected areas, covering 59.2 million hectares.120 In addition, 18 protected areas are currently being created, covering an additional 5.4 million hectares.121 The program has set world-class standards for innovation and cooperation involving multiple sectors of society 115 116 117 118 119 120 121

115 Brazil, Portaria mma n. 187, de 22/05/2014. See also https://www.kfw-entwicklungsbank .de/International-financing/KfW-Development-Bank/News/News-Details_296960 .html. 116 Arpa, Arpa Fase iii, available at http://programaarpa.gov.br/wp-content/uploads/2014/05/ Portaria-Fase-III.pdf. 117 arpa, Fundo de Transição, available at http://programaarpa.gov.br/fundo-de-transicao/ (last visited Feb. 5, 2017). Created by Brazil, Portaria do Ministério de Meio Ambiente n° 187/2014 (May 22, 2014), available at http://programaarpa.gov.br/wp-content/uploads/ 2014/05/Portaria-Fase-III.pdf. 118 oecd Environmental Performance Reviews: Brazil 2015, available at http://www.keepeek .com/Digital-Asset-Management/oecd/environment/oecd-environmental-performance -reviews-brazil-2015_9789264240094-en#page236. 119 Id. 120 arpa, Lista de Unidades de Conservação, available at http://programaarpa.gov.br/lista-de -ucs-2/ (last visited Feb. 5, 2017). 121 mma, supra note 114.

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and has produced extraordinary conservation results ahead of s­ chedule.122 By investing in the sound management of biologically important state and federal lands, arpa is playing a key role in ensuring that future development in the vital Amazon region can take place on a solid environmental footing.123 One of the reasons for Arpa’s success is its alignment with the government’s main policies and strategies for the Amazon region. These include the Sustainable Amazon Plan (pas),124 Legal Amazon Deforestation Prevention and Control Action Plan (ppcdam),125 the National Protected Areas Plan (pnap),126 and the National Plan for Climate Change (pnmc).127 In addition, the broad range of stakeholders includes wide participation of key groups and the support from the civil society. The partnership between the Brazilian government, ngos, local communities and major donors grew out of a pledge made by the Government of Brazil in 1998 to triple the area of the Amazon under legal protection.128 Finally, ensuring the financial viability and the integrity of the protected areas system in perpetuity was vital to the success of the program. The Project Finance for Permanence (pfp) approach used in arpa in Brazil can be an 122 123 124 125 126 127 128

122 wwf, Amazon Region Protected Areas Programme, http://wwf.panda.org/what_we_do/ where_we_work/amazon/vision_amazon/models/amazon_protected_areas/financing/ arpa/ (last visited Feb. 5, 2017). 123 Id. 124 Sustainable Amazon Plan (pas): integration with arpa starts with the consultation and involvement of the various sectors of regional and national society, besides crosscutting pas’ five priority theme axial lines: sustainable production with advanced technology; new financial standard; environmental management and land ordering; social inclusion and citizenship; and development infrastructure. 125 Legal Amazon Deforestation Prevention and Control Action Plan (ppcdam): its contributions and interfaces with arpa are in line with the goals and general guidelines of both of them, including the ppcdam targets for land and territorial ordering in the region, through pas creation and implementation. 126 National Protected Areas Plan (pnap): arpa contributes to the implementation of several pnap guidelines, e.g. insuring the representation of various ecosystems and promoting the articulation of different segments of society to qualify biodiversity conservation actions. 127 National Plan for Climate Change (pnmc): arpa gives relevant support to the implementation of pnmc. The creation of 13 pas in the Amazon in 2003–2017 with arpa support will, alone, prevent the emission of 0.43 billion tons of Carbon in the atmosphere by 2050. Therefore, the future expansion of snuc during Arpa’s 2nd Phase and the improvement in pa management will increase the program’s contribution to decrease deforestation rates in the Brazilian Amazon. 128 wwf, supra note 122.

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e­ ffective solution to achieve financial sustainability and improve protected area management effectiveness in other Amazon countries as well.129 This example, along with others presented in the following chapter, can be used to build a similar strategy to the acto. With the lessons learned and the development of methodologies, arpa published recommendations and guidelines in a series of reports, addressing specific issues in protected areas.130 These include: (i) planning protected areas,131 (ii) board management of protected areas,132 (iii) the experience of the program of management for results;133 (iv) participative techniques and tools for the management of protected areas;134 (v) lessons learned on management plans;135 (vi) lessons to improve the practice: the experience of the teaching community and learning planning of protected areas.136 The guidelines provide a successful way forward in the Brazilian Amazonia, as well as in other countries in the region as a whole. The program is a successful example of an initiative that could be replicated in other Amazon countries, and adopted by the acto as a regional program. Within this context, it highlighted the acto’s role at the regional level. Despite limited effectiveness, it is a potential scenario to boost new approaches in 129 130 131 132 133 134 135 136

129 wwf, supra note 8, at 33. 130 arpa, Cadernos Arpa, http://programaarpa.gov.br/cadernos-arpa/ (last visited Feb. 4, 2017). 131 arpa, Série Cadernos arpa, 1 – Recomendações para o Planejamento de Unidades de Conservação no Bioma Amazônia (Sep. 2009), available at http://www.programaarpa.gov .br/wp-content/uploads/2012/10/caderno1PlanejamentoRev.pdf. 132 arpa, Série Cadernos arpa, 2- Conselhos Gestores de Unidades de Conservação (Sep. 2009), available at http://www.programaarpa.gov.br/wp-content/uploads/2012/10/cader no2ConselhosArpa2.pdf. 133 arpa, Série Cadernos arpa, 3 – Melhorando a efetividade da gestão de Unidades de Conservação: a experiência do programa de Gestão para Resultados (Sep. 2009), available at http://www.programaarpa.gov.br/wp-content/uploads/2012/10/caderno3ResultadosRev .pdf. 134 arpa, Série Cadernos arpa, 4 – Técnicas e Ferramentas Participativas para a Gestão de Unidades de Conservação (Sep. 2009), available at http://www.programaarpa.gov.br/wp -content/uploads/2012/10/caderno4ArpaTecnicasParticipativas.pdf. 135 arpa, Série Cadernos arpa, 5 – Lições Aprendidas sobre a Organização para a Elaboração de Planos de Manejo de Unidades de Conservação (Dec. 2010), available at http://www .programaarpa.gov.br/wp-content/uploads/2012/10/caderno5pequeno.pdf. 136 arpa, Série Cadernos arpa, 6 – Aprendizados para Aprimorar a Prática: A Experiência da Comunidade de Ensino e Aprendizagem em Planejamento de Unidades de Conservação (Jun. 2012), available at http://www.programaarpa.gov.br/wp-content/uploads/2012/10/ caderno6Junho2012Corr.pdf.

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management of protected areas in the Amazonian biome.137 Based on the successful experiences of the arpa program, Peru started developing its own initiative to ensure the long-term financial sustainability of its national protected areas system.138 Through an agreement based on international cooperation, the Peruvian government and civil society organizations made an agreement to implement actions towards conservation of biological diversity, institutional strengthening, the inclusion of local populations, and the sustainability of the National System of Protected Area (sinanpe) in the long-term.139 Peruvian’s example shows the adaptability of the program to a different national scenario, reinforcing the argument for the development of a similar scheme at the regional level. 12.6

Transboundary Protected Areas (tbPa)

A Transboundary Protected Area (tbPa) is “an area of land and/or sea that straddles one or more boundaries between states, sub-national units such as provinces and regions, autonomous areas, and/or areas beyond the limits of national sovereignty or jurisdiction, whose constituent parts are especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed co-operatively through legal or other effective means.”140 The benefits of establishing tbpas by two or more countries include creating opportunities for enhanced transboundary cooperation in their management, encouraging friendship and reducing tension in border regions, promoting international cooperation, enhancing environmental protection across ecosystems, facilitating more effective research, bringing economic benefits to local and national economies, enhancing ecotourism, and ensuring better cross-border control of problems such as fire, pests, poaching, marine pollution and smuggling.141 However, there are still a few examples of tbpas in Amazonia. As of 2007, these included: Colombia-Venezuela (Natural National Park Tamá – National

137 138 139 140 141

137 Id., at 40. 138 wwf, supra note 8, at 33. 139 wwf, Perú suscribe acuerdo para sostenibilidad financiera de Áreas Naturales Protegidas (Nov. 20, 2014), available at http://www.wwf.org.pe/?233479/perususcribeacuerdoparasos tenibilidadfinancieradeareasnaturalesprotegidas. 140 Trevor Sandwith et al., iucn, Transboundary Protected Areas for Peace and Co-operation 3 (2001). 141 Id., at 7–8.

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Park El Tamá),142 Brazil-Colombia, Colombia-Ecuador-Peru, Ecuador-Peru (Cordillera del Cóndor), Brazil-Venezuela, French Guyana-Suriname, BrazilSuriname, Brazil-Peru, Bolivia-Brazil, Bolivia-Peru.143 In 2015, an announcement was made by the government of Colombia regarding a plan to establish the world’s largest protected area, covering an area almost four times the size of Germany. The transnational corridor would also involve Brazil and Venezuela, and encompass 135 million hectares, ranging from the Andes to the Amazon to the Atlantic. For this reason, it would be called the Triple A corridor.144 Borders are one of the most important aspects of a State’s sovereignty. The Amazon countries have therefore been especially protective of their borders, always ensuring that no international or regional commitment hinders them. In particular, the Brazilian military has considered the creation of legally protected areas in borders as dangerous.145 As such, few projects were further developed, and the environment in these specific areas has suffered. Indeed, the environmental protection of the area along borders, either rivers or forests, often faces complex and bureaucratic challenges of national security and international relations. Even if limited to the national territory, projects of environmental protection along borders have to be approved at the ministerial level. In its turn, environmental issues between two municipalities of different countries have to be solved by the capital and the countries’ diplomats, who are often far from the issues, having thus little sense of the problems. Due to these challenges, attempts to protect the environment at the borders are usually unsuccessful.146 These areas are usually not economically developed, due to their proximity with the borders, but suffer nonetheless environmental harms that can easily be addressed. Due to their connection with the Amazon share of other countries, and the little value for economical exploitation, these areas have the 142 143 144 145 146

142 See Parques Nacionales Naturales de Colombia, Parque Nacional Natural Tamá, available at http://www.parquesnacionales.gov.co/portal/es/parques-nacionales/parque-nacional -natural-tama/ (last visited Feb. 11, 2017). 143 I. Lysenko et al., 2007 unep-wcmc Global List of Transboundary Protected Areas, available at http://www.tbpa.net/docs/78_Transboundary_PAs_database_2007_WCMC_tbpa .net.pdf. Information on the majority of those is fairly limited. 144 Ruth Krause, Planning the world’s largest protected area, dw (Feb. 24, 2015), http://www .dw.com/en/planning-the-worlds-largest-protected-area/a-18271572. 145 Sigrid Andersen, Dificuldades da Gestão Ambiental em Áreas de Fronteira: Investigando a Origem dos Conflitos, 10, available at http://www.anppas.org.br/encontro4/cd/ARQUI VOS/GT2-849-562-20080503210927.pdf (last visited Apr. 18, 2016). 146 Id., at 15–19.

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­ otential to be uniquely protected for conservation purposes. There are several p protected areas within the Amazon rainforest with the potential to become a tbpa.147 In addition to protected areas, ecological corridors can be created to connect areas that are already protected, thus limiting the endemic status of species, and thus increase their protection. Given the structure that already exists within the act and acto’s framework, with negotiations at both the ministerial and diplomatic level, discussions about possible solutions to environmental protection at borders and possible creation of transboundary protection areas should be brought to its forums. At their level of discussion and information sharing, based on the national laws that already establishes the national systems of protected areas in the Amazon countries, there are little obstacles to overcome in order to create the mechanisms for such protection. So far, however, only one program of a trinational protected area was created within the acto’s framework, as will be highlighted below. Two other examples of tbpa are cited, the Cordillera del Cóndor and the Tambopata-Madidi Protected Area. While these were not developed within the framework of the acto, they share a potential for peace-building alongside the conservation goals. Given the extensive weight often given on border protection in Amazonia, and the political conflicts overcome to agree on a common strategy, these are deemed good cases studies to build on. acto’s Trinational Program As highlighted in Chapter 9, the acto established the Trinational Program for Conservation and Sustainable Development of the Protected Areas Corridor La Paya (Colombia), Güeppí (Peru), and Cuyabeno (Ecuador) as part of the protected areas thematic structure of the Strategic Agenda.148 The area encompasses the surrounding of the Putumayo River, in a territory shared between Colombia, Ecuador, and Peru, and includes extraordinary biological and cultural biodiversity, as well as a strategic relevance to countries. It had previously been protected individually by each of them. To implement the project, a team was formed with the three institutions responsible for the administration of public protected areas at the national 147 148

147 unep/wcmc, Transboundary Protected Areas Inventory (2007), available at www.tbpa .net/tpa_inventory.htlm. 148 otca, can, giz, eu, and wwf, Diversidad biológica y cultural del Corredor Trinacional de áreas protegidas La Paya – Cuyabeno – Güeppí Sekime. Colombia – Ecuador – Perú (2016), available at http://redparques.com/wp-content/uploads/2016/09/CORREDORTRINACIONAL-NOV-Final-1.pdf.

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level: the Ministry of Environment in Ecuador, the Special Administrative Unit of the National Parks System in Colombia, and the National Service of Natural Protected Areas (sernanp) in Peru. These three institutions make up the Board of Directors of the Trinational Program, which represents the political authority guiding the development of the project. The program has also a technical authority, consisting of the managers of the three protected areas, which participate in the daily activities planned.149 The Trinational Program was developed through collaboration between the acto, giz, can and Spain’s development bank (oapn), and with the additional support from the European Union and wwf.150 The effort was lead by wwf Colombia, with the support from wwf Germany. Additional partners include Interethnic Association for the Development of the Peruvian Amazon (Asociación Interétnica de Desarrollo de la Selva Peruana – aidesep), the Center for the Development of the Amazonian Indigenous Peoples (Centro para el Desarrollo del Indígena Amazónico – cedia) in Peru, the Natura Foundation in Ecuador, and Tropenbos in Colombia.151 It was based on four international legal agreements, namely: (i) the cbd,152 and specifically in the Programme of Work on Protected Areas,153 (ii) the act, the 2004–2012 Strategic Plan,154 and the Program for Amazonian Protected Areas, (iii) on can’s Decision 501,155 regarding the border integration zones, and (iv) the binational agendas of Comisión de Vecindad e Integración Colombia – Ecuador (cvice)156 and Integration Peru, Colombia, Ecuador.157 149 150 151 152 153 154 155 156 157

149 wwf Peru, Trinational Program: Conservation without borders in Putamayo, available at http://www.wwf.org.pe/en/our_work/in_peru/amazon/the_importance_of_sharing_con servation/trinational_program__conservation_without_borders_in_putumayo/ (last visited Feb. 11, 2017). 150 otca, can, giz, eu, and wwf, supra note 148, at 50. 151 wwf, supra note 149. 152 cbd, supra note 7. 153 cbd, Programme of Work on Protected Areas (2004), available at https://www.cbd.int/ doc/publications/pa-text-en.pdf. 154 acto, Strategic Plan 2004–2012, 67 (2004), available at http://otca.pagina-oficial.com/as sets/documents/20161220/104e8a0adc01c25d4813b4b1b3b4fdbb.pdf. 155 can, Decisión 501, Zonas de Integración Fronteriza (zif) en la Comunidad Andina (Jun. 22, 2001), available at https://www.cancilleria.gov.co/sites/default/files/decision501.pdf. 156 Cancillería Colombia, Comisión de Vecindad e Integración Colombia-Ecuador, available at http://www.cancilleria.gov.co/comision-vecindad-e-integracion-colombia-ecuador (last visited Feb. 11, 2017). 157 INAENA et al., Conservación y desarrollo sostenible en el corredor de gestión Trinacional Trinacional zr Güeppí, Perú – rpf Cuyabeno, Ecuador – pnn La Paya, Colombia,

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The protected areas previously established involve different management profiles, with some requiring full protection, such as national parks in Colombia and in Peru, and others that allow certain types of use and human activity. The latter include in Peru, the Communal Reserve Huimeki and the Airo Pai Community, and in Ecuador, the Wildlife Production Reserve of Cuyabeno.158 In addition, indigenous territories, with independent management forms, overlap with protected areas. These are protected through specific national legislation in each country. Likewise, the region and zone of influence of the corridor also encompass other management systems compatible with the goals of environmental sustainability, including forest reserves, communal areas, or other areas under the Socio Bosque program, which allow the use of natural resources in a sustainable manner.159 Within this context, the agreement required compatibility between different purposes and uses. The trinational area was not only a formal agreement between the environmental ministries and foreign ministers, but rather a mechanism that boosted the categorization of the area as a national park, and the creation of communal reserves, solving conflicts over land tenure with Peruvian indigenous groups. The project develops prioritized activities involving management planning of the three protected areas, as well as integrating regional activities from the various developments in the three countries.160 It allowed for the increased capacity for control and monitoring, and strengthened the actors and institutions in the region.161 Indeed, it promoted the exchange of experiences in management and conservation of fauna and flora common to the three countries, best practices in tourism of the pink dolphin, and a trinational meeting on control and monitoring of the borders. In addition, the project Putumayo Three Borders intervened to develop proposals for the financial sustainability and effectiveness in the management of the trinational corridor. More visibility was achieved through a regional strategy of communication.162 Currently the project is working at the regional level: (i) supporting the consolidation of the program’s political and technical authorities, (ii) providing 158 159 160 161 162

158 159 160 161 162

available at http://www.otca.info/biodiversidade/2009/publico/_arquivos/File/GSANPA MAZONICAS/Proyecto%20TRINACIONAL%20La%20Paya,%20Gueppi%20&%20Cuy abeno%20MGarcia%20%5BModo%20de%20compatibilidad%5D.pdf (last visited Feb. 11, 2017). otca, can, giz, eu, and wwf, supra note 148, at 27. Id., at 27. wwf, supra note 149. otca, can, giz, eu, and wwf, supra note 148, at 10. Id., at 51.

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technical elements as to build a Strategic Plan for the Corridor, (iii) creating the legal basis for a regional strategy for control and monitoring, (iv) identifying regional indicators of management effectiveness for the corridor from the different evaluation mechanisms of the areas, (v) identifying opportunities for dialogue between authorities, peasants and indigenous peoples from the three countries, and various exchange activities such as management plans for natural resources.163 There is also progress in planning and implementating a redd project in Cuyabeno (Ecuador), which includes capacity building of teams in protected areas and other local stakeholders, as well as dynamizing national and regional opportunities for dialogue to discuss the sectoral issues that threaten the Corridor. In addition, capacity building processes are advanced in the three protected areas regarding aspects that facilitate their role as environmental authority.164 Indeed, the project addressed the challenges mostly faced by Amazon countries in ensuring the effectiveness of protected areas, turning individual vulnerabilities into common assets. Countries were able to learn from each other’s experiences in an environment that required a joint approach. The idea was to develop a model for joint management of protected areas in bordering areas, which could be replicated to other regions in Amazonia, and become part of the Protected Areas Program of the acto.165 However, no other projects were yet developed in the aftermath. Cordillera del Cóndor In the 2000s, Ecuador and Peru established the first international peace park, ending a centuries long international conflict. The Cordillera del Cóndor is an area extending over 160 kilometers in length and rising to an even greater high, and the source of the Marañón River, where the Amazon River is born, running parallel to the Andes. It hosts an impressive biodiversity, as a refuge for transit species from both the Andes and the Amazon. The zone is shared between Peru and Ecuador, and has been disputed since the Spanish colonial period. Often called the “open wound”, the area was the object of several military battles due to border disputes during the 20th century. In addition, the area is ancestral territory of the ethnic groups Awajun, Wampis and Shuar.166 163 164 165 166

163 164 165 166

wwf, supra note 149. Id. Id., at 54; 70. itto, La incredible cordillera del Cóndor 7 (oimt Actualidad Forestal Tropical 12/4, 2004), available at www.itto.int/direct/topics/topics_pdf…/topics_id=8850000&no=3.

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The Cordillera del Cóndor was the first international peace park idea involving an armed conflict between neighboring countries.167 The idea arose in 1995 as, following failed attempts at conflict resolution, a peace agreement between the two countries started to appear possible. With the withdrawal of forces from the disputed zones, an opportunity arose for conservationists, who lobbied for a peace park.168 In 1998, as tensions over border demarcation were threatening to boil over into renewed violence, the presidents of Ecuador and Peru, under pressure from conservation groups, met with then u.s. President Bill Clinton, and asked that the guarantor nations propose a border demarcation. With u.s. satellite mapping they were able to arrive at an agreement on the border. The peace treaty was overseen by four guarantor countries: Argentina, Brazil, Chile, and the United States. Conservation International (ci), along with other conservation groups, called for a peace park in the disputed zone. ci worked with military officers to push for conservation as a component of peace. It was the first formal effort in which conservationists were actively involved in international conflict resolution, and the resultant peace treaty specifically mentioned conservation measures.169 As part of the peace agreement, both countries agreed that the area should be designated for conservation, and committed to establish ecological parks on either side of the border. Countries would guarantee unimpeded transit, and no military forces were allowed.170 At the same time, however, the region would be available for development of mining and other economic activities, as well as for the construction of the Amazonian highway that would unite Ecuador and Peru with Brazil.171 Initially, both Ecuador and Peru separately established national parks on their respective sides of the new border. Two small peace parks were established in 1999. However, in 2000, ci and the International Tropical Timbers Organization (itto) partnered with local conservation groups in both countries and with the Chimu indigenous communities to establish a biregional management regime. These efforts culminated in 2004 with the creation of the Condor-Kutuku conservation corridor peace park.172 The two small protected 167 168 169 170 171 172

167 Institute for Environmental Diplomacy and Security (ieds-uvm), Cordillera del C ­ ondor – Negotiating a Peace Park, available at http://www.uvm.edu/ieds/node/154 (last visited Feb. 10, 2017). 168 Saleem H. Ali, Transboundary Conservation and Peace-building: Lessons from forest biodiversity conservation projects, 28 (unu-ias Policy Report, 2011). 169 ieds-uvm, supra note 167. 170 Saleem H. Ali, supra note 168, at 29. 171 itto, supra note 166, at 7. 172 ieds-uvm, supra note 167.

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areas were linked to a much larger “reserved zone” in Peru. The areas include the El Condor Park in Ecuador (2,540 ha), the Zone of Ecological Protection in Peru (5,440 ha), and the Santiago-Comaina Reserved Zone in Peru (initially 863,280 ha expanded to 1,642,570 ha in 2000).173 The results were achieved due to the itto “Binational peace and conservation in the region of the Cordillera del Cóndor”. The project was supported by the Ministry of the Environment and the Natura Foundation on the Ecuadorian side, and the Institute of Natural Resources and ci on the Peruvian side. These focused on strengthening mutual cooperation, and building lasting peace between the two countries. Some of the most important results of the project include: (i) a regional conservation strategy, with a proposal for the development of a conservation corridor that allows the integration of the Condor mountain range into an extensive transboundary system; (ii) an information system for the whole mountain range, which incorporates the biological knowledge acquired by both countries, as well as a common system of geographical information; (iii) dialogues and meetings between indigenous peoples living in the region, such as the Awajun, Shuar and Wampis, with increased traditional knowledge on the region’s natural resources and sustainable methods of fishing, hunting, agriculture, and timber extraction;174 and (iv) coordination between the two governments for the implementation of concerted conservation measures and the development of binational policies in the Cordillera del Cóndor and in the communities living adjacent to protected areas.175 However, the goal is to develop a larger El Condor-Kutukú Conservation Corridor along the entire border area, linking the Llangantales National Park, the Chimborazo Fauna Reserve, El Cajas National Park and the Podocarpus National Park in Ecuador, the Tabaconas-Namballe National Sanctuary, and the Cutervo National Park in Peru. Additional areas in the Kutukú and El Condor mountains in Ecuador are also considered to be linked and it is hoped to extend the strategy to incorporate other ecosystems shared by the two c­ ountries: 173 174 175

173 Global Transboundary Conservation Network,Cordillera del Condor Transboundary Protected Area, http://www.tbpa.net/page.php?ndx=59 (last visited Feb. 10, 2017). 174 The project’s strategy, on the Peruvian side, seeks the integration of cultural values and the knowledge of the Awajun and Wampis indigenous peoples in the management of lands and resources. Specifically, 16 “indigenous promoters in conservation” of the local communities were trained to harmonize the conservation ideals of native communities and the concepts included in the Peruvian legislation on protected natural resources, thus ensuring a truly participatory approach. itto, supra note 166, at 7. 175 itto, supra note 166, at 7.

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mangroves and dry forest on the Pacific coast, lowland rain forests in the Amazon region, as well as paramos and coastal and marine ecosystems. The proposals have been drawn up using the iucn Code for Transboundary Protected Areas and have been supported by the International Tropical Timber Organization (ITTO).176 However, implementation of various features of the peace agreement remains unfulfilled. In order to address the precarious social and development infrastructure, limited technological and organizational capacities, and land tenure conflicts, a ten year Bi-National Plan was created. The plan aimed to carry out activities and projects to allow a greater regional economic integration, speeding up productive and social development, as well as the alleviation of poverty in 130 districts of Peru and 68 cantons of Ecuador. It provided a political umbrella for the design and implementation of basic infrastructure and social development projects, along with protection and sustainable use of natural resources, while preserving the identity of the Jibaro indigenous peoples. It gives special recognition to the services provided by the cloud forests of Cordillera del Condor in maintaining the water cycle of the region.177 However, the initiative failed to move beyond the initial projects developed, and it didn’t manage projects, nor did it foment them with local organizations of the Cordillera del Cóndor. Most importantly, conflicts with the mining industry have threatened the peace and conservation of the area.178 Tambopata-Madidi Protected Area The Greater Madidi-Tambopata Landscape is situated on the Eastern slope of the Andean mountain range, between northwestern Bolivia and southeastern Peru. This area covers approximately 110,000 km2 and is characterized by an impressive altitudinal range, varied topography and climate, diverse plant and animal communities and a high number of endemic species. It is estimated that around 12,000 species of vascular plants, 1,100 species of birds (11% of all the bird species in the planet) and around 300 species of mammals exist in this area. The zone has been traditionally occupied by diverse cultural groups, 176 177 178

176 tbpa, Cordillera del Condor Transboundary Protected Area Project: Peru & Ecuador, http://www.tbpa.net/docs/71_Cordillera_del_condor.pdf (last visited Feb. 10, 2017). 177 Carlos F. Ponce and Fernando Ghersi, Cordillera del Condor (Peru-Ecuador), Paper prepared for the workshop on Transboundary Protected Areas in the Governance Stream of the 5th World Parks Congress, Durban, South Africa, 12–13 September 2003, available at http://www.tbpa.net/docs/WPCGovernance/CarlosPonceFernandoGhersi.pdf. 178 Saleem H. Ali, supra note 168, at 31.

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being a space for cultural and economic interchange since the Pre Hispanic period, and nowadays, its majority rural population is roughly 260 thousand inhabitants (including Peru and Bolivia).179 Because of its importance for conservation, the governments of Bolivia and Peru established protected areas with outstanding biodiversity and conservation status: Madidi, Pilon Lajas, Apolobamba and Ixiamas in Bolivia, and Bahuaja Sonene and Tambopata in Peru. Together, these protected areas cover 4,200,055 hectares (42,000.55 km2). The conservation value of this landscape is particularly important as a transboundary area, ensuring the connectivity of ecosystems and the coordination of conservation efforts at a binational level. In 1999, Wildlife Conservation Society (wcs) started executing the Greater Madidi-Tambopata Landscape Program. The Program is oriented towards strengthening the links between protected areas and other land management units (communities, indigenous territories and municipalities), supporting integrated planning processes and the development of land management capacities.180 The Program was one of nine transboundary landscape-scale efforts under usaid’s Sustainable Conservation Approaches in Priority Ecosystems (scapes) project. scapes interventions included technical support to government authorities for protected areas management, assisting indigenous communities in land use plans and transboundary cooperation for wildlife monitoring. In this landscape, the project focused on five protected areas and six indigenous communities in Bolivia and Peru. By catering to the needs of authorities at all levels – from local and indigenous to municipal, national and transboundary – the project had broad appeal, and authorities have begun to gather and share information in pursuit of conservation goals.181 The project’s main objective was to generate and collect environmental and socio-economic information that will form the basis for the establishment of coordinated participatory processes between the two countries to ensure the planning and management of conservation areas and the development of sustainable economic alternatives within the System of State-Protected Natural Areas (spnas) of Tambopata – Madidi, which comprises the Tambopata Candamo Reserved Zone and the Bahuaja Sonene National Park in Peru and 179 180 181

179 wcs Bolivia, The Greater Madidi-Tambopata Landscape, https://bolivia.wcs.org/en-us/ Landscapes/Madidi-Tambopata.aspx (last visited Feb. 10, 2017). 180 Id. 181 usaid, Scapes Landscape Profile: The Greater Madidi-Tambopata Landscape, available at http://pdf.usaid.gov/pdf_docs/PBAAE426.pdf.

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the Madidi National Park in Bolivia.182 This system constitutes the central axis of the Conservation Corridor stretching from the Apurimac Reserved Zone in Peru to the Isiboro Securé Indigenous Territory and National Park in Bolivia.183 In order to jointly manage the protected area, a binational technical committee was created.184 Members of the committee included the directors of protected areas in the complex, representatives of Bolivia’s Servicio Nacional de Areas Protegidas, Peru’s Instituto Nacional de Recursos Naturales, and ci.185 The committee was a space for coordinating actions, exchanging information, and making decisions tied to conservation and development processes in the corridor. It thus provided proactive conservation action for connectivity maintenance in the corridor and the bi-national complex.186 In addition, key achievements include: (i) compilation of information related to the master plans, with cartographic data, protocols for integration, interchange, and information management on protected areas, (ii) the development of a monitoring and control plan, (iii) a socio-economic diagnostic, including participatory communal workshops, (iv) value-adding processing of products to ensure the highest income levels possible for local communities, according to an Economic and Ecological Zoning carried out, (v) collaborative management and business plans for communities based on the zoning exercise.187 The strategy addressed the management of protected areas in addition to simply creating them. The local communities in the Tambopata – Madidi area, collaboratively developed management plans jointly within a Peruvian-Bolivian system of natural protected areas aimed at ensuring the conservation of biodiversity in the region. Given historical rivalries between Bolivia and Peru, the project has served as a vital tool in harmonizing sustainable use and conservation activities across the Bolivian-Peruvian border and in strengthening the collaborative management of the protected areas. While border patrol activities need further coordination, the tbpa has endured political crisis between countries, and the protected area complex persisted.188 182 183 184 185 186 187 188

182 183 184 185

Saleem H. Ali, supra note 168, at 31. Id., at 33. Id., at 11. Applied Connectivity Conservation Management: Case Material 208 in Graeme L. ­Worboys et al., (eds), Connectivity Conservation Management: A Global Guide (2013). 186 Id. 187 Saleem H. Ali, supra note 168, at 34. 188 Id., at 34.

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Privately Protected Areas

The vast majority of protected areas, both within Amazonia and around the world, were established on state-owned lands. However, protected areas under private ownership have become increasingly relevant as a governance type. A private protected area (ppa) is defined as “a protected area, as defined by iucn, under private governance.”189 It includes properties owned by individuals and groups of individuals, non-profit and charitable trusts, religious groups, ecotourism companies, corporations, both existing commercial companies and sometimes corporations set up by groups of private owners for this specific purpose, for-profit owners, and research entities (e.g. universities, field stations) or religious entities.190 A ppa thus is not defined by management category, but rather by governance type.191 It relates to all ownership types that are not considered governments, indigenous and community, or shared.192 While ppas are no substitute for government protected areas, jointly managed protected areas, or indigenous and community protected areas, they complement them. As an additional conservation tools, ppas are important and underused. Private protected areas often fill important gaps in national policies both in terms of geographic cover and speed of response to conservation challenges. Indeed, they help governments achieve the global targets.193 Specifically, they are an essential component in achieving cbd’s Aichi Biodiversity Target 11 on completing ecologically representative protected area networks around the world. Through multiple governance types, checks and balances are provided, and a broad segment of society is invested in trying to ensure conservation outcomes.194 Finally, they provide private citizens with an opportunity to directly contribute to conservation efforts through a bottom up process.195 189 190 191 192 193 194 195

189 Sue Stolton, Kent H. Redford and Nigel Dudley, The Futures of Privately Protected Areas, Developing capacity for a protected planet, x; 12 (iucn, Protected Area Technical Report Series No. 1, 2014), available at https://portals.iucn.org/library/sites/library/files/documents/PATRS-001.pdf. 190 Id., at viii. 191 Id., at 7. 192 Id., at 13. 193 Such as those defined at the fifth iucn World Parks Congress in Durban in 2003, and decisions made by signatories of the Convention on Biological Diversity (cbd) in Kuala Lumpur in 2004, and Nagoya in 2010. 194 Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 189, at 52. 195 Id., at viii.

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iucn establishes two criteria for ppas with respect to governance and permanence. ppa managers should be aware of any rights of use which are not in their control. Efforts should be made to ensure that such use does not impact overall conservation objectives, and management is dedicated primarily to the purpose of nature conservation by its owner(s) or manager(s). With respect to permanence, the area shall be legally designated for permanent protection of nature conservation, such as an act. Alternatively, designation to nature conservation shall be made through a permanent agreement, such as a conservation covenant or easement, or by a renewable agreement with the aim of permanence, such as time-limited conservation covenant or easement.196 The idea is for conservation to be guaranteed in the long-term. The main characteristics of private reserves are: (i) they are recognized on private or communal lands; (ii) the owner voluntarily decides to establish usage restrictions with conservation objectives; (iii) the restrictions can be registered in the corresponding Public Registry, so that these can be maintained even if the property is transferred to a new proprietor; (iv) depending on the legislation, they can be established temporarily or for perpetuity.197 Although the private reserve is the most popular private conservation instrument, it is acknowledged differently in each country. For example, in ­Ecuador they are known as private reserves, while in Colombia as civil society reserves. In Brazil they are known as private natural heritage reserves (rppn), in Bolivia as private protected areas, and in Peru as private conservation areas (pca).198 A summary of the type of ppa and the definition is included in Table 37. While all Amazon countries have some sort of mechanism in private conservation, the concept varies between countries. iucn’s guidance on protected area legislation identifies four options to support conservation on private lands: (i) self-imposed restrictions on property for conservation purposes, with no legally binding document; (ii) self-imposed restrictions on property for ­conservation purposes, formalized through binding documents, with no participation from a protected area authority and without being part of the formal protected area system; (iii) self-imposed restrictions on property for conservation purposes, and voluntary agreements to comply with governmental procedures in order for them to be formalized or recognized as protected 196 197 198

196 Id., at 14. 197 Id., at 18. 198 Bruno Monteferri and Diego Coll, Private Conservation in Amazon Countries 18 (Sociedad Peruana de Derecho Ambiental – spda, 2009), available at http://www.legislaciona np.org.pe/images/pdf/comparativeanalysis.pdf.

478 Table 37

chapter 12 Definitions of private protected areas199

Denomination Country

Definitions

Protected areas managed and financed voluntarily by private parties which, without belonging to the National System of Protected Areas (snap), will develop their activities within the system’s framework and the group of laws regulating them. Private Bolivia Protected lands established on the entirety or part of a private natural heritage property. It is established voluntarily by the landowner with the objective of conserving the ecological and aesthetic values of the land. ­reserves (rppn) Private Brazil A private area, declared in perpetuity, whose objective is to protect natural heritage the biodiversity, and where it is only possible to carry out activities related to scientific research. Only visits for tourism, recreational ­reserves (rppn) and educational purposes are permitted. Colombia Part of or the total area of a property that preserves a sample of a Civil ­society natural ecosystem and that is managed under principles of sustainnatural reserves ability regarding natural resource use. Its activities and uses will be (NCSN) decoded according to established regulations, with the participation of environmental non-profit organizations. At present there is a new proposal that defines the ncsnr as: “Property or group of properties that contain areas with natural, semi natural or transformed ecosystems, or a combination of these, which is reserved with objectives of in situ conservation of the areas or fragments of natural ecosystems, and is managed under the principles of sustainability regarding the use of natural resources, using natural diversity components in a manner and in a rhythm that does not cause the long term diminishment of biodiversity”. Private reserves Ecuador They are not defined in the legislation. Private Peru A private property which due to its environmental, biological, scenic or other similar characteristics, complements the coverage c­ onservation areas of s­ inanpe. Thus, it contributes to the conservation of biodiversity and it increases opportunities for scientific research and education, as well as opportunities for the development of specialized tourism. Private Venezuela They are not defined in the legislation. ­conservation areas Private ­protected area

Bolivia

199

199 Updated from the table developed by Bruno Monteferri and Diego Coll. Id., at 18.

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areas within the formal protected areas system; and (iv) government-imposed restrictions on land use for conservation purposes, imposed as conditions on ecosystems use or directly affecting individual properties.200 All relate to different levels of commitment, but all could be ppas if the iucn definition of a protected area is met.201 For the purpose of this section, only legally recognized private protected areas were included. However, some voluntary initiatives of private protected areas are mentioned. Brazil was the first country in Latin America to include ppas in the official system of protected areas. As seen, both Brazil and Bolivia have adopted the private natural heritage reserve category. These, however, are inherently different. Brazil has a national definition and legislation for ppas, as well as a regional legislation, a national database, but no reporting required. The legal framework is detailed and entails strong participation of the State at the federal, state, and municipal levels. In Bolivia, the area is constituted as a voluntary easement established by the landowner, and is regulated by the forestry legislation. In Ecuador and Bolivia, the private reserve category has not been ­regulated.202 Landowners have been declaring ppas, regardless of the lack of legal effect. These initiatives, however, have limited legal certainty. Like Bolivia and Ecuador, Venezuela recognizes private conservation areas, but there are no specific regulations.203 In Colombia, private conservation has often been led by the civil society, leading to the formation of a social system that supports and legitimates these initiatives.204 The country recently integrated ppas into national protected area systems.205 While there is not an official definition, the country has a national and regional (within the State) legislation, a national database, and national reporting requirements.206 In the absence of regulations for private reserves, users have undertaken voluntary agreements or resort to mechanisms considered in forestry and civil legislation, as was, until recently, the case of Bolivia and Ecuador, and remains in Venezuela.207 Several countries have resorted to civil conservation mechanisms, which are not analyzed in this section. These are used in Bolivia, Brazil, Colombia, 200 201 202 203 204 205 206 207

200 201 202 203 204 205 206 207

Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 189, at 24. Id., at 23. Id., at 18. Bruno Monteferri and Diego Coll, supra note 198, at 18. Id., at 20. Id., at 16. Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 189, at 20. Id., at 21. Id., at 18.

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and Peru.208 Officially, only Brazil, Colombia, and Peru have a legally established framework for private protected areas. Bolivia and Venezuela have some sort of mechanism. While Ecuador recently included the category in the 2008 Constitution, there is still no regulation to the law. Guyana and Suriname still lack a legal framework for the promotion of private conservation initiatives.209 Two systems of ppas are highlighted in this section. Brazil’s structure arose from a government initiative, while in Colombia, the civil society filled in the gap in the legal framework, pushing for a government response. One of the main regional challenges relates to the economic and/or financial incentives in the legal framework that foment private conservation.210 Incentives are particularly important to increase the conservation role of ppas. Indeed, governments and others (e.g. ngos, private companies) should ensure appropriate ppa incentives to: (i) expand the conservation coverage of existing protected areas; (ii) connect protected areas and develop protected area networks (including across national boundaries); and (iii) extend coverage of threatened species and rare and endangered ecosystems. Incentives should be in the form of both conservation legislation and instruments such as taxation; and flexible enough to allow rapid development of ppas to respond to conservation crises.211 In addition, governments should create structures and incentives to report on ppas, so that monitoring is facilitated.212 Countries have also established different incentives to a property owner to set up a ppa.213 While some countries provide landowners with economic incentives, usually in the form of tax exemptions, these are often limited and bureaucratic, offering an economic value that is inconsistent with the conservation value. Other incentives such as payment schemes for environmental services provided by private conservation areas, or advances in terms of compensation schemes based on Reducing Emissions from Deforestation and ­Forest Degradation (redd) Program, are discussed in different sections. Incentives can benefit the society (e.g., conservation or recreation), be selfdirected (e.g., privacy or tax benefits), or family related (e.g., keeping the property in the family or ensuring inter-generational conservation aims within 208 209 210 211 212 213

208 Id., at 20. 209 Bruno Monteferri and Diego Coll, Private Conservation in Amazon Countries (Sociedad Peruana de Derecho Ambiental – spda, 2009), available at http://www.legislacionanp .org.pe/images/pdf/comparativeanalysis.pdf. 210 Id., at 15. 211 Id., at 48. 212 Id., at 48. 213 Id., at 29–30.

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family property). Tax incentives are often granted to owners who donate land for the purpose of creating ppas. For example, easement mechanisms in the usa provide a mixture of incentives to private landowners, and the uk grants landowners incentives such as avoidance of income and inheritance tax duties when donating land to the National Trust.214 The purposes of establishing a ppa vary according to the actor involved, and stakeholders may have multiple reasons to establish one. While it is difficult to gather data on private protected areas, given that countries use different definitions and systems, iucn reported that 4.5 percent of protected are privately owned.215 Unlike government-managed areas, private areas don’t follow clear patters of designation, management and finances.216 Table 38 highlights areas covered under private conservation instruments by country. At the 2016 iucn World Parks Congress, iucn encouraged States to (i) adopt policies that recognize, encourage, and monitor ppas as a key contribution Table 38

Private conservation initiatives in Amazon countries217

Country

Initiatives under private conservation instruments

Hectares under private conservation instruments

Percentage of the country under private conservation instruments

Percentage of the Amazon under private conservation instruments

Bolivia Brazil Colombia Ecuador Guyana Peru Suriname Venezuela Total

45 921 842 232 64 1 27 1 2,133

74,183 665,789 100,000 83,683 595,000 829,034 18,000 250,000 2,615,689

0.07% 0.08% 0.09% 0.33% 2.77% 0.64% 0.11% 0.27%

0.012% 0.112% 0.017% 0.014% 0.099% 0.138% 0.003% 0.042%

214 215 216 217

214 215 216 217

Id., at 33. unep-wcmc and iucn, supra note 3, at 8. Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 20. Bruno Monteferri and Diego Coll, Private Conservation in Amazon Countries, supra note 209, at 31.

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to national and international conservation targets, and also to implement mechanisms to integrate them into national, provincial and local protected area ­systems; (ii) to create or promote legal and financial incentives, including through legal reform as appropriate, for the maintenance and strengthening of ppas, particularly in countries where restrictions and/or ambiguity in national legislation exist; and (iii) to work alongside civil society organizations to establish in the public agenda the importance of the voluntary conservation of private land, based on the concept of subsidiarity of the private, non-­governmental sector in national conservation policies.218 Within this context, there is a clear role for the acto to fulfill in assisting compliance with these recommentations. This could be done through a study on best practices observed throughout the region, as well as lessons learned in developing the existing legal frameworks, studies on existing legislation and harmonization of laws, and systems of protected areas. In addition, due to the inconsistent existing data on privately protected areas, the organization could develop a regional data system on a broader scale that integrates all areas. Finally, it could help negotiate better incentives to establish protected areas, thus assisting in the government’s efforts in conservation. Private Reserves of Natural Heritage (pnhrs) in Brazil In Brazil, private protected areas, or Private Reserves of Natural Heritage (pnhrs),219 represent an important conservation tool.220 Brazil was the first Latin American country to officially include private protected areas in the system of protected areas in 1990.221 As a category of conservation unit established in private lands, pnhrs are created voluntarily and for perpetuity to conserve biological diversity.222 The impediment to alter or extinguish the pnhr has to be included in the agreement term entered into with the environmental agency, which will verify the existence of public interest, and shall be annotated in the real estate record.223 Once the status is granted, the designation is permanent and cannot be changed by the landowner. 218 219 220 221 222 223

218 WCC-2016-Res-036-EN https://portals.iucn.org/library/sites/library/files/resrecfiles/WCC _2016_RES_036_EN.pdf. 219 pnhrs or rppns, in the original, are regulated by Federal Law No. 9,985, (Jul. 18, 2000) and Federal Decree No. 5,746 (Apr. 05, 2006). 220 Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 16. It should be noted, however, that the 1934 Brazilian Forestry Code regulated the establishment of private protected areas for the protection of forests and fauna, known as “protective forests”. See Bruno Monteferri and Diego Coll, Private Conservation in Amazon Countries, supra note 209, at 15. 221 Id., at 20. 222 Brazil, Federal Law No. 9,985, (July 18, 2000), art 21. 223 Id., art 21, §1.

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pnhrs are classified as full protection conservation units. As such, only scientific research, and visitation with touristic, recreation or education purposes is permitted.224 They can be created at the national, state, and municipal level. The decentralization governments at different levels can institute legal instruments and incentives for the creation and management of ppas. States and municipalities have thus developed their own legislation regulating the conservation tool. Designation of a pnhr provides the landowner with a number of limited incentives. These include exemption of the preserved area from Rural Property Tax (rpt), prioritization for some government conservation funds; preference for agricultural credit for productive areas of the property; the potential to receive environmental compensation; and support for owners from the Brazilian government for supervision, protection and prosecution of environmental crimes. With the exception of the rpt exemption, the incentives are not adequately administered. Furthermore, rpt values are often minimal, thus failing to provide an attractive benefit to the majority of land owners.225 Indeed, the lack of incentives and recognition by the governments are notable. To address this deficiency, ngos and property owners associations have supported the creation and management of such prnhs.226 The latter assist owners in the creation process, the search for partnerships and resources for management, dissemination and strengthening of private reserves, training and exchange of experiences among members, and improving coordination and negotiations with environmental agencies. Currently there are 17 Associations of Owners of prnh in Brazil, representing 20 states,227 as well as a National Confederation of prnhs,228 and an association of prnh for the Amazon biome.229 Although economic benefits are important, other potential types of support exist: greater recognition of owners, facilitating their participation in relevant forums, availability of information generated by the public sector, and offers of technical assistance and training. An additional contribution could be increased protection of the area, which is already provided for by law, and which many owners want, but few achieve in practice.230 Despite the few ­incentives, 224 225 226 227 228 229 230

224 225 226 227

Id., art 21, §2. Id., at 61. Id., at 61. rppn Web, Associações de rppn, http://www.rppnweb.com/site_rppn/index.php/ associacoes-rppn. 228 rppn Web, http://www.rppnweb.com/site_rppn/index.php (last visited Feb. 11, 2017). 229 Associação de Proprietários de rppn do Bioma Amazônico (arbiam). 230 Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 61.

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a large number of private reserves were created in recent years. At the federal level, 662 pnhrs were created until August 2016.231 1,101 federal pnhrs were created in the Brazilian territory until 2013, including in federal, state and municipal levels, which protect 703,740.75 hectares of lands.232 In 2014, only 2 percent of the prnhs were located in the Amazon biome. However, the prnhs in Amazonia cover 38 percent of the total area.233 Still, the Brazilian legislation gives landowners limited incentives to encourage creation of pnhrs. Within this context, protected areas are mostly created based on a personal desire to protect the remaining forest.234 Private Protected Areas in Colombia In Colombia, ppas are integrated in the national system of protected areas. Called Natural Reserves of the Civil Society (nrcs),235 these can be established in part or the whole of a land that preserves a sample of natural ecosystem and is managed under the principles of sustainability in the use of natural resources. It specifically excludes areas where timber is industrially exploited, but allows domestic timber exploitation.236 nrcss were created as a response to the will of the civil society. Indeed, for decades, landowners had voluntarily established initiatives to promote natural conservation, and implement sustainable practices in their lands.237 With the increase of private conservation lands and the collective organization of some of the landowners, a network of nrcss, the Asociación Red Colombiana de Reservas Naturales de la Sociedad Civil (resnatur) was created.238 The network thus pushed for legal recognition, igniting the adoption of the law regulating nrcss. 231 232 233 234 235 236 237 238

231 ICMBio, Brasil ganha mais uma reserve particular (Aug. 10, 2016), available at http://www .icmbio.gov.br/portal/ultimas-noticias/20-geral/8073-bahia-ganha-mais-uma-rppn. 232 ICMBio, Criação de rppns rende homenagem a técnico do ICMBio (Nov. 08, 2013), http:// www.icmbio.gov.br/portal/comunicacao/noticias/20-geral/4473-criacao-de-rppns-no -bioma-mata-atlantica-rende-homenagem-a-tecnico-do-icmbio.html. 233 Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 42. 234 Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 16. 235 Reservas Naturales de la Sociedad Civil (rnsc). 236 Colombia, Law No. 99 (Dec. 22, 1993), art. 109–111; 116-G. 237 Melissa Quintero López and Fabio Alberto Arias Arbeláez, Conservación de la naturaleza en propriedad privada: las Reservas Naturales de la Sociedad Civil en el Valle del Cauca in 35(61) Apuntes del Cenes 22–23 (2016). 238 RESNATUR, Nuestra Historia, https://www.resnatur.org.co/sobre-resnatur/nuestrahistoria/.

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nrcss are established in a free, voluntary and anonymous manner. nrcss can be created by ngos, families, companies, or communities. They can promote ecotourism, environmental education, sustainable production, investigation and permanent housing.239 The property is registered at the Parks Unit of the sinap (System of National Protected Areas).240 In instituting nrcss, landowners are entitled to a range of rights: right to participate in the planning processes of development programs, right to prior consent to the execution of public investments that affect nrcss, and right to incentives.241 Incentives to nrcss are created jointly by the national government and the territorial entities. While different incentives were promoted at the national and municipal levels, these were not properly enforced.242 In addition, the process of registering nrcss is often costly and burdensome. Indeed, landowners often promote conservation measures prior to registering the area as a private protected area. With the lack of economic incentives, the intention in registering often relates to the need to publicly recognize their efforts, and protect the areas in case public investments or projects can affect them.243 The predominant reasons for the establishment of nature reserves, however, are self-interest and appreciation of the nature by landowners.244 While there are few direct economic incentives to establishing nrcss, some municipalities successfully provide for an exemption on the total or a percentage of property taxes.245 For example, the Municipality of Medellín established an exemption to the property tax for the term of six years, applied to planted or reforested areas, or with natural vegetation cover of lands located in soils of protective forest cover.246 Nonetheless, the process to be granted the exemption is often more costly than the exemption itself.247 The economic incentives have also been applied in some regions, such as the Valle del Cauca, which invest in the development of different projects that benefit the reserves, such 239 240 241 242 243 244 245 246 247

239 Id., at 23. 240 Gloria Sanclemente, Lucía Ruiz and Natalia Pedraza, Contribución del Sector Privado a las Áreas Protegidas: Estudios en Colombia y Perú 10 (iucn, 2014), available at https:// www.iucn.org/sites/dev/files/import/downloads/contribucion_del_sector_privado_a _las_areas_protegidas.pdf. 241 Colombia, Federal Decree No. 1996 (Oct. 21, 1999), arts. 11–14. 242 Melissa Quintero López and Fabio Alberto Arias Arbeláez, supra note 237, at 25. 243 Id., at 38. 244 Id., at 38–42. 245 Gloria Sanclemente, Lucía Ruiz and Natalia Pedraza, supra note 240, at 10. 246 Agreement No. 67 of 2012. 247 Melissa Quintero López and Fabio Alberto Arias Arbeláez, supra note 237, at 36.

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as the development of their management plans, agro-ecological reconversion, silvopastoral systems, research, reforestation, and green markets.248 Conserva Colombia is a Program of Incentives to Conservation co-financed and implemented in the framework of a strategic alliance between the Fondo Ación Ambiental, the Niñez, and The Nature Conservancy (tnc). The program has operated since 2009 with resources from donors and international ­cooperation, such as usaid, and private enterprise in Colombia, such as Philip Morris Coltabaco, Carbones del Cerrejón and Foundación Mario Santo ­Domingo.249 The Program co-finances the processes required to declare new public protected areas and register private estates as NRCSs in sinap, increasing the representativeness of less-represented, strategic ecosystems. In areas with major changes in land use and land cover there is often an interest from local people or ngos in preserving natural values. One of the tools for this is ppa creation that, in this context, is often deployed to prevent housing, agricultural expansion or other forms of development or in the case of ppas in less strictly protected categories, to maintain traditional farming ­practices.250 Government owned/managed protected areas usually take many years to negotiate and agree. This can be problematic where land/water conversion or degradation is taking place quickly and the area’s values may be lost by the time protection is in place. Private individuals, companies, research organizations, and ngos can often fill the gap by purchasing areas more quickly to conserve them from destruction. For example, in the Colombian Orinoco, ngos are reacting to rapid land conversion by buying ppas, with government incentives, at a speed that it would be hard for the government to match through national park creation. Such resulting ppas are sometimes later sold or given to the government to become part of the national protected area estate.251 Through the nrcss, landowners provide a complementary role to that of the State, and promote conservation of ecosystems.252 As of 2014, Colombia had a total of 327 private protected areas, covering 60,869 hectares.253 From 248 249 250 251 252 253

248 249 250 251 252 253

Melissa Quintero López and Fabio Alberto Arias Arbeláez, supra note 237, at 25. Gloria Sanclemente, Lucía Ruiz and Natalia Pedraza, supra note 240, at 17. Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 28. Id., at 32. Melissa Quintero López and Fabio Alberto Arias Arbeláez, supra note 237, at 17. Sue Stolton, Kent H. Redford and Nigel Dudley, supra note 220, at 110.

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the total amount, 280 were registered with national ppa organizations. Most are small and located in the Andes.254 12.8 Conclusion The role of protected areas as a tool for conservation has largely increased over the years. They provide a multitude of ecosystem services, are critical for maintaining a healthy environment for people and nature, essential for biodiversity conservation, and vital to the cultures and livelihoods of indigenous peoples and local communities. A growing increase in the number and extent of protected areas established has been observed throughout the world. These are the result of government incentives, as well as globally recognized commitments from countries. Since the first protected area established in Peru in 1954, protected areas have become a key conservation tool for Amazonia. Encompassing a broad range of categories, protected areas in Amazonia totaled 986 in 2015, covering 2,077,523 km2. These have successfully helped curb deforestation and forest degradation, playing an important role in reducing rates of habitat loss, degradation and fragmentation. A 2015 study developed by raisg shows that protected area and indigenous territories in Amazonia have successfully reduced deforestation rates in the region. Overall, a 24.6 percent forest loss was observed outside protected areas and indigenous territories, while inside it amounts to 2.2 percent. While nationally established protected areas are essential to national conservation, in a shared ecosystem like the Amazon rainforest, a regional approach is also required as a complimentary tool. Indeed, there is a need to think beyond the boundaries of borders. A regional approach to protected areas provides several advantages, including inducing connectivity between ecosystems, thus reducing the risk of extinction, and promoting a landscapeplanning strategy that considers the ecosystem as a whole. Despite the advantages of the regional structure, there still isn’t a ­comprehensive regional approach to protected areas within the act/acto’s framework. Several attempts at building one emerged over the years, albeit unsuccessfully. By filling this gap, Redparques ultimately developed a regional system that considers the region as a whole, promoting a vision for the conservation of the physical and cultural diversity of the Amazon biome, based on the ecosystems. In order to consolidate the initiative, two projects were were 254

254 Id., at 18.

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fostered, the Integration of A ­ mazon Biome Protected Areas (iapa 2014–2018) and the Protected Areas, Natural S­ olutions to Climate Change (nascc). iapa intends to increase the ecosystem’s resilience to the effects of climate change and maintain the provision of goods and services in benefit of biodiversity, communities and local economies through the nspas by 2020. nascc, on the other hand, sought to integrate the protected areas systems as part of the strategies to tackle climate change in the Amazon biome, recognize and include those in the development plans at national and regional levels, as well as at international events, thanks to the provision of ecosystem services and their contribution to a better way for the local communities to adapt to climate change. Other regional projects have recently been announced in the Amazon region, although these do not include all Amazon countries. For example, the Amazon Sustainable Landscapes Program, largely funded by the gef, has the goal to protect over 80 percent of the Amazon, and boost efforts to combat climate change. Considering the insufficiency of the existing regional approaches, the following sections analyzed some initiatives at the national level, which have successfully advanced conservation, and could be expanded to the Amazon region as a whole. Section  12.5 focused on a national approach to improve the national systems of protected areas, the Amazon Region Protected Areas (arpa) program. Advanced by the Brazilian government, it constitutes the largest national program for the management of protected areas. The project had the intended result of reducing deforestation rates, focusing on the procedural hurdles of conservation through protected areas, such as financial challenges, capacity building, and technical capacity. Specifically, it has the goal of expanding and strengthening the National System of Protected Areas (snuc) in the Amazon, through the protection of 60 million hectares. In addition, it envisions ensuring financial resources for the management of those areas in the short and long terms, while promoting sustainable development. arpa currently supports a total of 114 protected areas, covering 59.2 million hectares. The program is a successful example of an initiative that could be replicated in other Amazon countries, and adopted by the acto as a regional program. Focusing on transboundary approaches that connect two or more countries in shared borders, Section  12.6 looked at the model for transboundary protected areas, and some initiatives observed throughout Amazonia. Notably, the Trinational Program for Conservation and Sustainable Development of the Protected Areas Corridor La Paya (Colombia), Güeppí (Peru), and Cuyabeno (Ecuador) was advanced by the acto as part of the thematic structure of the

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Strategic Agenda. The Cordillera del Cóndor, promoted outside the scope of the act, successfully established a peace park in a conflict zone. Additionnally, the Tambopata-Madidi Protected Area, shared between Bolivia and Peru, provided an additional example advanced by nonprofits in the region. Through these specific examples, it shows how bordering countries have found innovative ways to share resources and induce conservation in a collaborative manner even amidst conflict. Finally, Section 12.7 looked at one of the alternative management models for protected areas, which moves beyond the government focus alternative: private protected areas in the context of the national systems of protected areas of Amazon countries. It provided a brief overview of privately protected areas in the region, focusing on Brazil and Colombia specifically. These examples show ways in which the acto could further advance the protected areas agenda, something it has done on a limited scale throughout the years. The first step is to develop a regional study about the ecosystem, which could be conducted by the acto to guide and develop a strategic plan for conservation. Like Brazil’s example, a map of priority areas for conservation, developed with the proper participation from local communities, can guide a strategy for deciding where to invest the resources. In addition, through a more active role in conservation of protected areas, the acto could generate regional information, such as a regional database of protected areas, a project suggested many times and never fulfilled. Since the initiative was taken over by Redparques, the acto can become more involved, building on the structure already under development. It can produce regional data on protected areas, types of management arrangements, wildlife protected in each region, including threatened species, and additional information on local biodiversity. With the information gathered, it can propose a broader project for the Amazon region. tbpas are essential to ensure connectivity in some ecologically relevant protected areas shared between two or more countries. Experience shows that tbpas, when properly managed, can endure political conflicts, ensuring the long-term goal of conservation. In addition, it is essential to incolve local communities and indigenous groups with their participation during the planning phase, as well as in the implementation of the project. Two successful initiatives were presented. While the first was largely developed by the acto, the second was not. International partners, however, are essential. The acto’s role as a liaison also becomes increasingly relevant within the context of tbpas. As a regional space for dialogue, a consensus on a shared management can be more easily achieved. Joint policies in protected areas can

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also facilitate compliance with international treaties, especially those related to climate change, forests, biological diversity and trade of endangered species. Indeed, through regional approaches, the time and costs of developing policies can be reduced, as the resources are more efficiently applied in a regional approach, as opposed to an individual alternative by each member country. Finally, there is a need to isolate the area from economic threats, through the adoption of management plans and the development and implementation of economic alternatives that support the local communities. Indeed, the examples from the trinational protected area and the Madidi show how countries can successfully achieve this goal. In addition, the arpa program in Brazil can serve as a model for the development of a strategic regional approach. Most importantly, this should be done with proper consideration to the national development plans for the region, in order to ensure compatibility with the socio-economic goals of the country. The different scenarios, on the other hand, can build on experience and knowledge shared by member countries. Specifically, the acto can promote actions to strengthen institutional capacity in management of protected areas, based on the experience of the arpa program. The exchange of information and capacity building within the context of transboundary protected areas is particularly important. With similar ecosystems and specific natural aspects that shall be managed jointly, the lessons from one area can be more easily applicable to the other. The acto can also regionally manage and administer the execution of ­specific activities, programs, and projects, facilitating compliance and implementation. Finally, it can act as an arranger of regional and international ­cooperation support, identifying technical and financial resources to assist countries at the national level. Through each of those roles, specifically applied here to the context of protected areas, the acto fulfills the mandates endowed to the Permanent Secretariat in the Strategic Agenda.255 In order to fulfill the last role, however, the acto has to come up with alternative sources of funding. Some options of alternative sources will be analyzed in the following chapters.

255

255 acto, Amazonian Strategic Cooperation Agenda (Nov. 2010) 20–21 (hereinafter acto, Strategic Agenda), available at http://www.otca.info/portal/admin/_upload/apresent acao/AECA_eng.pdf.

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Financial Mechanisms We must squarely face the challenges posed by forest degradation in highly populated regions and by irregular use of soil, often affected by cattle-raising, producers of pig iron, logging companies and soybean producers. Firm regeneration policies and efforts, as well as serious changes to business models and mindsets must be designed and implemented without delay. For that reason, responsibly-conducted intellectual creativity will be welcome in the pursuit for solutions to the conflict between the need for socioeconomic support and for environmental sustainability, which involves the fate of some 25 million people in the Amazon. Of course, this vast population needs income. However, owing to a lack of feasible alternatives, they conduct predatory activities that are detrimental to the forest. The challenge is to replace these activities with other competitive pursuits, ensuring the conservation of the largest rainforest in the world. It is a real challenge, and the Amazon Fund faces the reality of investing in a region where only 14% of the land is legally owned. Consequently, the strategy for the region cannot depend on isolated efforts. Understanding the diversity of the Amazon, as well as making concerted and coordinated efforts, is undoubtedly a huge struggle. The region requires a wide-ranging and all-encompassing policy, but above all it must be operational, practical and effective!1

∵ Amazon countries face similar challenges. While the legal framework of forests and protected areas is generally well developed, deforestation rates have largely failed to decrease. The reason is mostly the same: poor enforcement, 1 Luciano Coutinho, Message from the President in BNDES, The Amazon under debate: opportunities, challenges and solutions 8 (2010), available at http://www.amazonfund.gov .br/FundoAmazonia/export/sites/default/site_pt/Galerias/Arquivos/Publicacoes/book _AmazonUnderDebate_.pdf.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_014

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uncertainty in land use, property rights and use of forests, lack of information about forest resources, and an increased demand for forest products.2 Poor governance is at the core of problems. Since the issues are similar, and countries share an ecosystem that is best preserved through common efforts, it is essential to provide a collective answer to the problems. As mentioned throughout the historical analysis of International Forest Law, achieving an international binding agreement on forests was always challenging, and the international community has failed to adopt one. Several other instruments have, however, been published. These often inspired legislation regulating forests at the national level.3 For example, Chapter 11 of Agenda 21 urged states to promote the sustainable management and conservation of forests, and ­rehabilitate degraded areas.4 Additionally, few treaties have been adopted  by  the Amazon states on the protection of forests. These are often bilateral treaties with the goal of devising early warning and monitoring systems to assess and measure changes in forest areas, as well as mechanisms to prevent forest fires and illegal activities.5 The acto has established several honorable goals towards the protection of Amazon forests, but few projects moved forward. There is, however, one recent successful example of regional cooperation towards curbing deforestation.6 As seen in Chapter 9, the acto promoted an initiative in satellite monitoring for deforestation.7 The initiative develops and implements participatory systems of forest monitoring and strengthens the platform for regional coordination. It reproduces the methodology of satellite monitoring that has been successfully used by Brazil for the past years. Through several technical cooperation agreements, Brazil’s Instituto Nacional de Pesquisas Espaciais (inpe) shares knowledge and provides technical capacity to replicate the methodology in the remaining Amazon countries.8 In addition to placing monitoring rooms in each country, providing the countries with the technical skills to gather information to combat deforestation, the 2 World Bank, La observancia de la legislación forestal y la gobernanza de los bosques en los países tropicales 8 (2008), available at http://www.fao.org/docrep/012/al044s/al044s00.pdf. 3 Beatriz Garcia, The Amazon from an international law perspective 170 (2011). 4 Agenda 21, Chap. 11, “Combating deforestation”, para. 11.10, un doc. A/CONF.151/26/Rev.1, 1992. 5 Beatriz Garcia, supra note 3, at 171. 6 See Maria Antonia Tigre, Cooperation for Climate Mitigation in Amazonia: Brazil’s Emerging Role as a Regional Leader, 5 Transnational Environmental Law 401 (2016). 7 acto, Monitoreo de la Cobertura Forestal en la Región Amazónica (acto, Nov. 2014), available at http://otca.info/portal/admin/_upload/publicacoes/446-Monitoreo.pdf. 8 Id., at 4.

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i­nitiative draws up regional deforestation maps. It is one of the acto’s key strategies to combat climate change regionally.9 The project built on a successful initiative conducted at the national level, and expanded the model to the Amazon region as a whole. It enhanced regional dialogue and information sharing, and promoted technology transfer using the system developed by the Brazilian government and replicating it in neighboring countries. It induced South-South cooperation, and used a development from Brazil, one of the regional leaders, as a tool in other neighboring countries with fewer capacities, thus embodying the cbdr-rc principle. Maria Antonia Tigre, supra note 6, at 415–423. This model represents one of the rare occasions in which the acto promoted effective cooperation, inducing practical results. With multiple initiatives developed in the eight countries that share Amazonia, several other successful examples could be replicated at the regional level. However, both at the national and at the regional levels, there is one major common obstacle: lack of funding. More often than not, countries put forward innovative laws, plans and policies to address deforestation. Enforcement is often where these fail. Indeed, the implementation of policies, regardless of the level, requires a significant investment of funds. As developing countries, and considering the socio-economic challenges faced, funds are not always easy to come by. While both the acto and Amazon countries individually have often relied on multilateral donors, the instability hinders long-term planning. In addition, these are often insufficient. Within this context, finding additional sources of funding is at the core of an effective package of policies to protect Amazonia. As seen on Chapter 10, Brazil has significantly curbed deforestation through a series of policies adopted after 2014, and represents the most successful example of a turnaround of deforestation rates.10 As highlighted by Seymour and Busch, Brazil’s success was the result of a combination of policies. Ecologist Daniel Nepstad divides those in three categories related to the profitability of agriculture: supply, risk, and demand: First, the establishment of protected areas and indigenous territories and delays in road construction reduced the supply of land potentially available for deforestation. Second, law enforcement actions, fines, embargoes, 9 10

otca, El Cambio Climático en la Región Amazónica 17 (otca, 2014), available at http:// www.otca.info/portal/admin/_upload/publicacoes/531-libro.cambio.climatico_esp.pdf. Frances Seymour and Jonah Busch, Why Forests? Why Now?, The Science, Economics and Politics of Tropical Forests and Climate Change 186–217 (2016).

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and suspension of rural credit increased the risks associated with undertaking deforestation. Third, moratoriums on the clearing of forest by the soy and cattle industries reduced demand for new agricultural land.11 The first strategy, establishing additional protected areas and indigenous territories, thus reducing the supply of land, was presented in the last chapter. Building on the lessons presented by Seymour and Busch, this chapter goes on to explain several strategies to curb deforestation more specifically, pulling ­examples from Brazil, as well as the other seven Amazon countries. While ­other  countries have not presented the same scale of deforestation reduction, these also provide some useful strategies that can be replicated elsewhere.  While there isn’t enough data to directly link deforestation rates with specific policies, these strategies are deemed effective contributors to forest policies. This chapter thus looks at national initiatives for forest protection, providing concrete case studies based on a few strategies that protect forests observed throughout Amazonia. Following a similar funding strategy as the projects advanced by the acto, Colombia’s “Forest Conservation and Sustainability in the Heart of the Amazon” project relies on funds from the gef. Through a different approach, Brazil, Guyana, and Ecuador created, in similar ways, a national fund based on contributions to induce conservation in the Amazon rainforest. Section  13.2 presents the ­Brazilian Amazon Fund, an initiative from the government that creates a national fund to finance mechanisms for reducing deforestation in Amazonia. The fund is based on reduced emissions, and represents the largest existing redd mechanism. Section 13.3 addresses Guyana’s initiative, which created a similar fund, largely based on donations from the government of Norway. Finally, Ecuador’s Yasuní itt Initiative likewise sought funds for environmentally friendly initiatives. However, instead of basing contributions on avoided deforestation, it required a compensation for not pursuing the economic exploitation of oil reserves inside the Amazon region. In addition, a different approach was sought after by Ecuador. Socio Bosque is a national conservation agreement scheme, which provides economic incentives to individual landowners and indigenous communities who voluntarily commit to conservation and protection of their native forests, moors or other native vegetation. These examples inform alternatives for the acto to more actively engage in the region, gathering the necessary funds to do so.

11

Id., at 190;191 (table on policy recommendations for how to stop deforestation and examples from Brazil).

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495

Colombia’s Amazon Vision

In 2013, Colombia’s Ministry of the Environment and Sustainable Development presented Vision Amazonia, an initiative that seeks to establish partnerships between the country and the international community around development models for the reduction of carbon emissions in the Amazon rainforest.12 The project promotes a new model of development in the region that improves living conditions of local populations while maintaining the natural base that sustains the biodiversity and productivity. As part of the Vision Amazonia, Colombia pledged to eliminate deforestation by 2020. The project is aligned with the activities and goals of the National Development Plan for the Protected Areas Program, which will contribute to the preservation and conservation of the existing network of protected areas and the interconnectivity between the Andes and the Amazon regions via the Macarena mountain range. The strategy looks for a model of sustainable development and low carbon economy in the region. Specifically, it intends to develop innovative mechanisms of payment by performance, such as reduced deforestation, and a portfolio of investments with four pillars of ­intervention: (i) improved governance, (ii) legal productive activities, (iii) strengthening indigenous communities and (iv) enabling conditions. The vision is supported by the governments of Germany, Norway and the United Kingdom, which through the redd+ Pioneers Program (rem) have agreed to develop a REDD+ payout scheme, verified as the result of the reduction of gross deforestation in the Amazon biome. Together, the three countries have committed nearly US$100 million to support this initiative.13 As part of the Amazon Vision, Colombia launched the “Forest Conservation and Sustainability in the Heart of the Amazon” project, informally called gef – Heart of the Amazon.14 The main goal is to improve governance and promote sustainable management of landscapes to reduce deforestation and 12

13 14

MINAMBIENTE, Visión Amazonía, Presentación, http://www.minambiente.gov.co/ index.php/component/content/article?id=2138:plantilla-bosques-biodiversidad-y -servicios-ecosistematicos-62 (last visited Feb. 27, 2017). Id. Parques Nacionales Naturales de Colombia, Proyecto Conservación de Bosques y Sostenibilidad en en Corazón de la Amazonía, http://www.parquesnacionales.gov.co/portal/es/ conservacion-y-sostenibilidad-de-losbosques-de-la-amazonia/ (last visited Feb. 27, 2017). See also MINAMBIENTE, Proyecto Corazón Amazonía, http://www.minambiente.gov. co/index.php/component/content/article?id=2217:plantilla-bosques-biodiversidad-y-­ servicios-ecosistematicos-70 (last visited Feb. 27, 2017); Corazón de la Amazonía, https:// www.corazonamazonia.org/ (last visited Feb. 27, 2017).

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promote biodiversity conservation in the forests of the Colombian Amazon. It is structured around four components: (i) protected areas; (ii) improved governance, management and monitoring of forests; (iii) sectorial programs for the sustainable management of landscapes; and (iv) coordination, monitoring, and evaluation. Challenges in funding protected areas are included in the first component.15 The project is a joint initiative of the Ministry of Environment and Sustainable Development (mads), the National Natural Parks Unit (pnn), the Institute of Hydrology, Meteorology and Environmental Studies (ideam), the Amazon Institute of Scientific Research (sinchi) and Natural Heritage Fund for Biodiversity and Protected Areas (fpn). It is funded by the gef.16 Funding will be used for the Forest Conservation and Sustainability in the Heart of the Colombian Amazon Project, which seeks to improve governance and promote sustainable land-use practices. The project is developed in the departments of Caquetá and Guaviare, the most affected by deforestation, in an area close to 9 million hectares, for a term of 5 years, starting in 2015.17 It lays the ground for a type of land management system that uses a rural development point of view that values conservation and responds to the economic and productive needs of local inhabitants. The main beneficiaries of the project are the (i) 200 campesino communities and organizations in selected areas of the municipalities of San José del Guaviare, Calamar and Cartagena del Chairá, benefiting from the implementation of agroforestry productive systems and the transfer of forest conservation ­techniques; and (ii) 3,500 indigenous peoples and territories linked to the expansion process in seven indigenous reserves of the Serranía de Chiribiquete National Natural Park, encompassing an area of 1,708,998.9 hectares.18 The project proposes activities aimed at easing the pressure on deforestation and biodiversity while helping to generate opportunities for vulnerable communities in the area, including small-scale farmers and indigenous communities. The project will also have a positive impact on regional productive 15 16

Id. World Bank, World Bank and gef to Support Conservation of Colombian Amazon and Opportunities for Its Inhabitants (Dec. 9, 2014), http://www.worldbank.org/en/news/pressrelease/2014/12/09/world-bank-and-gef-to-support-conservation (last visited Feb. 27, 2017). See also gef, Forest Conservation and Sustainability in the Heart of the Colombian Amazon, https://www.thegef.org/project/forest-conservation-and-sustainability-heartcolombian-amazon (last visited Feb. 27, 2017). 17 Dedise, Corazón de la Amazonía, available at http://www.dedise.org/attachments/article/37/Afiche%20Dedise%20Corazon%20de%20la%20Amazonia.pdf. 18 World Bank, supra note 16; and MINAMBIENTE, supra note 14.

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associations, local governments and environmental authorities.19 It is still under implementation, with a planned closing date for June 2019.20 13.2

Brazil’s Amazon Fund

In order to induce a national strategy to contribute to the emission reduction from deforestation and forest degradation in Amazonia, Brazil created the Amazon Fund in 2008.21 The Amazon Fund is aimed at raising resources for non-reimbursable investments in efforts to prevent, monitor and combat deforestation, as well as to promote the preservation and sustainable use in the Brazilian Amazon.22 The Brazilian Development Bank (bndes) is responsible for managing the Amazon Fund, as well as for raising donations and monitoring the projects supported by it. The Fund also has a Guidance Committee (cofa) and a Technical Committee (ctfa). cofa establishes the guidelines and criteria for the allocation of resources. ctfa’s role is to “verify the calculations made by the Ministry of Environment concerning the effective reductions of carbon emissions from deforestation, appraising the methodologies for calculating the deforested areas and the amount of carbon per hectare used in the respective calculation of emissions.”23 The Fund gathers resources based on the results from emission reduction from deforestation in Amazonia.24 Initially, the Fund used the value of 100 tC/ha (tons of carbon per hectare) of biomass, equivalent to 367 tCO 2e/ha 19

20

21 22 23 24

gef, supra note 16. See also Corpoamazonia, Corpoamazonia contribuirá con  la implementación del proyecto Conservación de Bosques y Sostenibilidad en el  Corazón  de la Amazonia, available athttp://www.corpoamazonia.gov.co/index.php/noticias/760-mes​ a-​vision-amazonia. The World Bank, Forest Conservation and Sustainability in the Heart of the Colombian Amazon, Implementation Status & Results Report (May 6, 2016), available at http://­documents. worldbank.org/curated/en/136461468028429832/Colombia-Forest-Conservation-andSustainability-in-the-Heart-of-the-Colombian-Amazon-P144271-Implementation-­StatusResults-Report-Sequence-03. Brazil, Decree No. 6,527 (Aug. 1, 2008), available at http://www.planalto.gov.br/ccivil_03/_ Ato2007-2010/2008/Decreto/D6527.htm. Amazon Fund, Amazon Fund/Purposes and Management, http://www.amazonfund.gov​ .br/FundoAmazonia/fam/site_en/Esquerdo/Fundo/ (last visited Feb. 27, 2017). Id. mma, Fundo Amazônia, http://www.mma.gov.br/estruturas/sfb/_arquivos/fundo_amazonia_2008_95.pdf (last visited Feb. 27, 2017).

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(tons of CO 2 equivalent per hectare).25 The financial resources that make up the Fund consist of donations and net earnings from investments. Any individual, company, or foreign government can become a donor. The money is deposited into a bank account managed by bndes, which will then issue a certificate acknowledging the contribution, and the equivalent to CO 2 ­corresponding to  the financial contribution.26 To date, the total amount of donations  ­received by  the Fund was usd 1.135.387.681,09, coming from three donors: the G ­ overnment of Norway (usd 1,100,276,320.84), the German development bank (KfW, with usd 28,323,207.40), and Petróleo Brasileiro S.A. (Petrobras, with usd 6,788,152.85).27 Projects supported by the Fund must contemplate at least one of the following areas: (i) management of public forests and protected areas; (ii) envi­ ronmental control, monitoring and inspection; (iii) sustainable forest ­management; (iv) economic activities developed from the sustainable use of vegetation; (v) ecological and economic zoning, land use planning and regularization; (vi) preservation and sustainable use of biodiversity; and (vii) recovery of deforested areas. Although primarily focused on the protection of the ­Amazon Biome, up to twenty percent of the Fund’s resources may be used to support projects performed in other Brazilian biomes and other tropical countries. From 2004, when the Brazilian government implemented the Action Plan for Prevention and Control of the Legal Amazon Deforestation, or PPCDAm, to 2015, the annual deforestation rate in the Amazon dropped 79 percent.28 Considering 2009 as the baseline, a 22 percent decrease was observed. The report also states “[t]he Amazon Fund had supported eighty projects by 2015 … A part of the supported projects have [sic] initiatives in other Brazilian biomes and countries with tropical forests, amounting to R$83 million.”29 Regarding the results achieved by such projects, the report asserts the following: When comparing 2015 and 2014 results, one can notice: (i) a significant increase took place in the activities (and results) for development of sustainable production activities; (ii) the number of units for ­processing of 25 Id., at 8. 26 Id., at 10. 27 Amazon Fund, Donations, http://www.amazonfund.gov.br/FundoAmazonia/fam/site_ en/Esquerdo/doacoes/ (last visited Feb. 27, 2017). 28 Amazon Fund, Annual Report 2015, 49 http://www.amazonfund.gov.br/FundoAmazonia/ export/sites/default/site_en/Galerias/Arquivos/Relatorio_Atividades/RAFA_2015_ENGL​ .pdf. 29 Id. at 41.

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family farming and extractive products was increased by 720%; (iii) the access to the Amazon Fund’s resources by the communities was expanded by 200% through partnerships that were established with entities gathering medium and large-sized sub-projects; and (iv) the revenue obtained through the selling of unprocessed products expanded 86%. The increased revenue with sustainable production activities signal that income is effectively being generated from economic activities that encourage forest conservation in the projects that are supported by the Amazon Fund. Meanwhile, the number of people who directly benefited from the supported initiatives rose by 32%; that is, from 65,000 to 86,000 people.30 The results achieved specifically relied on a successful strategy towards environmental monitoring and control activities: 207 thousand rural establishments have enrolled in car with the support of the fund, which corresponds to an area of 57 million hectares in the states of Acre, Amazonas, Pará, Mato Grosso do Sul and Bahia, the latter outside the Amazon biome. Considering that the total area of rural properties enrolled in these states reached 121 million hectares by the end of 2015,14 this means the Amazon Fund has directly or indirectly ­contributed to 47% of the area that is already registered in the car in these states.31 car stands for Rural Environmental Registration (Cadastro Ambiental Rural), which is “one of the priority activities to be supported by the Amazon Fund. Enrollment with car is an important step in the environmental regularization process of rural properties, and it works by driving production systems to be more adapted to the Amazon, therefore in an environmentally sustainable manner.”32 Examples of projects approved in 2015 are: (i) the Amazonia sar Project, managed by the Ministry of Defense through the Amazonian Protection System Operations and Management Center (censipam), which will implement a deforestation detection system using orbital imaging radar; (ii) the Amazon Integrated Project (Projeto Integrado da Amazônia), managed by the Brazilian Agricultural Research Corporation (embrapa) and aimed at “promot[ing] the production and dissemination of knowledge and technologies aimed at the recovery, conservation and sustainable use of the Amazon biome, by supporting 30 31 32

Id. at 45. Id. at 47. Id.

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the implementation of projects of decentralized units of embrapa selected through an internal projects call”;33 and (iii) the first “Projects aimed at Providing Support for Territorial and Environmental Management Plan on Indigenous Land[s],” namely, the Irehi: Cuidando dos Territórios Project, the Bem Viver Sustentável Project, and the Amazônia Indígena Sustentável Project. Projects seeking support from the Amazon Fund must submit a formal proposal to bndes. Subsequently, bndes’s Priority Department (depri) will analyze the documentation supporting the application and verify its compliance with the guidelines and criteria determined by cofa.34 Following this evaluation, the Committee for Eligibility, Credit and Capital Market (cec) has to assess the financial aspects of the project. Once approved by cec, the Amazon Fund Management Department (defam) will carry out a thorough examination on the project and issue a technical recommendation. This recommendation will then be sent to bndes’ Board of Directors for a decision. Finally, the next stages after the board’s approval are the contract and the disbursement of resources. Brazil’s Amazon Fund largely relies on the deforestation data provided by inpe. Indeed, based on the reduced deforestation, contributions were sought of about US$5.00 per carbon tone not emitted. It is, as such, a largescale redd mechanism.35 Considering the acto replicated the technology for deforestation monitoring to the Amazon region, it already has the necessary ­information to develop a similar model. Indeed, the Amazon Fund provides an effective case study for the acto, which could replicate a similar strategy to finance projects implemented by the organization. The idea for an Amazon Fund within the act’s framework has been raised several times throughout the years, but never moved forward. Through the development of compliance and enforcement mechanisms, the organization could reach out to international donors, searching for ways to build up the fund in a broader scale. 13.3

Guyana-Norway Partnership

While Guyana’s forests have largely been protected from destruction, with overall low deforestation rates, economic pressures for increased commodi33 34

35

Id., at 119. The most recent guidelines are available at: Amazon Fund, Guidelines and Criteria for Allocation of Resources and Focus in 2015 and 2016, http://www.amazonfund.gov.br/FundoAmazonia/export/sites/default/site_en/Galerias/Arquivos/diretrizes_criterios/COFAs _GUIDELINES_02_12_2016_FINAL.pdf. bndes, supra note 1, at 26.

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ties such as timber and minerals increased the threat to the remaining forests. Much of Guyana’s forestland is zoned for logging activities, and avoided deforestation schemes in Brazil risk pushing logging further into Guyana.36 In addition, Guyana has suffered the impacts of climate change, with floods that caused damages equivalent to 60 per cent of the gdp in 2005.37 In order to address the threats to forests and climate change, two solutions were suggested. The first proposal balanced development with environmental protection by having developed countries pay for avoided deforestation.38 The initiative would put the majority of Guyana’s forest, which is the size of England, under long-term protection provided the right economic incentives were created and the people’s sovereignty over the forest was not sacrificed. The second solution was to invest the income Guyana received from these incentives to forge a new, low-carbon economy.39 The proposal would place the nation’s forests under international supervision if other countries paid citizens not to deforest the tropical landscapes. The Office of the President became a strong proponent of low carbon development, including policies as Reducing Emissions from Deforestation and ­forest Degradation (redd) and Avoided Deforestation (ad).40 Under the plan, financing for redd would flow from the carbon market, while interim funding from bilateral and multilateral donor agencies would be used to kick start redd. The central idea of Guyana’s redd proposal is that unless the country is paid to protect forests, the country will have no choice but to convert forest land to develop transport, mining, energy, timber and agricultural resources.41 The rationale is similar to that of Ecuador, and has angered some critics to the proposal, which have claimed the countries are asking for ransom in order to protect the environment. The solution led to the Low Carbon Development Strategy (lcds).42 As a policy document on climate change and redd, the lcds sets out specific 36 37 38 39 40 41

42

Ben Block, Norway to Help Protect Guyana’s Forests, World Watch, http://www.worldwatch .org/node/6318. Id. Id. unep, redd Guyana, http://www.unep.org/climatechange/Portals/5/documents/REDD_ Guyana.pdf. D. Howden, A ground-breaking step in the battle against climate change, The Independent (Nov. 24, 2007). Forest Peoples Programme, Guyana: indigenous peoples, forests and climate initiatives, Rights, forests and climate briefing series (Nov. 2009), http://www.forestpeoples.org/sites/ fpp/files/publication/2010/02/guyanabriefingnov09eng.pdf. Low Carbon Development Strategy (lcds) http://www.lcds.gov.gy/index.php/the-lcds/ 207-low-carbon-development-strategy-update-march-2013.

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measures to ensure that Guyana’s national development and the fight against climate change are complementary, not competing, objectives. It is based on the premise that forest conservation shall meet international standards, but not at the expense of the country’s sovereignty and the rights of the people.43 On the contrary, conservation shall be promoted through economic incentives. The lcds sets out how Guyana “can work within the emerging international partnership to provide the world with a model for how immediate action can stimulate the creation of a low-deforestation, low-carbon, climateresilient economy”.44 At its core is a forest payments incentive system, which provides a scalable, replicable model for addressing deforestation and forest degradation.45 Each rainforest country, including Guyana, would be granted Assigned Amount Units (aau), which would be equivalent to tradable sovereign allowances to emit carbon dioxide. Furthermore, the aaus would need to be assigned in phases in order to avoid flooding the market. Under the lcds, the Government aims to obtain transitional payments until Guyana can participate fully in a REDD scheme.46 A study by the consulting firm McKinsey predicts that “rational” economic choices would result in the destruction of all forests outside protected lands in Guyana within 25 years. McKinsey proposes that between $430 million and $2.3 billion annually would be needed to pay Guyana not to destroy its forests.47 In 2009, Norway committed in providing Guyana up to US$250 million for forest carbon abatement in Guyana at US$5 per ton during the period 2010–2015.48 This agreement represented the first international commitment of financial support to the lcds and was the first partnership of its kind between a developed and developing country.49

43

44 45 46 47

48 49

John Costenbader (ed.), Legal Frameworks for redd, iucn Environmental Policy and Law Paper No. 77, 152 (2009), available at https://portals.iucn.org/library/sites/library/files/ documents/EPLP-077.pdf. Office of the President, Republic of Guyana, A Low-Carbon Development Strategy: Transforming Guyana’s Economy While Combating Climate Change 11 (2009). unep, supra note 39. John Costenbader (ed.), supra note 43, at 152. Office of the President, Republic of Guyana, Creating incentives to avoid deforestation: saving the world’s forests today 14 (2008), available at http://www.redd-monitor.org/wpcontent/uploads/2009/02/guyana_mckinsey_report.pdf. unep, supra note 39. Low Carbon Development Strategy, Guyana-Norway Partnership (Jan. 15, 2010), http:// www.lcds.gov.gy/index.php/guyana-norway-partnership.

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The Office of Climate Change (occ) and the Guyana Forestry Commission (gfc) are the two agencies responsible for preparing Guyana’s reports on Indicators of Enabling Activities and redd+ Performance Indicators respectively. The Governments of Guyana and Norway have agreed to have these reports independently verified and assessed as part of the process for receiving payments.50 Payments are made based on performance reported by Guyana in the Annual Progress Reports, and were made once certain performance indicators of enabling activities and of redd+ Performance were met. Financial support was channeled through a multi-contributor financial mechanism (the Guyana redd+ Investment Fund, grif) for which the World Bank acts as Trustee.51 Norway’s pledges were part of the International Climate and Forest Initiative.52 Norway’s International Climate and Forest Initiative (nicfi) ­supports the development of the redd+ international agenda and ­architecture. The icfi’s primary goal is to help establish a global, binding, long-term post-2012 regime that will ensure the necessary and sufficient cuts in global greenhouse gas emissions to limit global temperature rises to no more than 2°C. Up to nok 3 billion (USD$517 million) per year has been pledged to the nicfi. The nicfi contributes to several multilateral and bilateral initiatives i­ncluding the ­Brazilian Amazon Fund, the Congo Basin Forest Fund, the Forest Carbon ­Partnership Facility and the Forest Investment Program. Guyana estimates that a further US$100 million total for the period 2011– 2015 would supply sufficient revenue for the country to create the world’s first national scale forest climate services scheme and catalyze transformative ­private investment of up to US$2 billion in identified low-carbon priorities.53 The model provided by Guyana, like those developed by Brazil, Colombia and Ecuador, made the forest worth more alive than dead. With incentives provided by the international community, a reduction of deforestation and forest degradation could be achieved. The receivers of funds, on the other hand, have flexibility to choose how to comply with their commitments. For example, Guyana is investing these payments in renewable energy, better ­forest ­governance and community-led sustainable development projects, in an attempt to re-orient the economy onto a low carbon trajectory.54 50 51 52

53 54

Id. unep, supra note 39. Climate Funds Update, Norway’s International Climate and Forest Initiative, http://www​ .climatefundsupdate.org/listing/norway-s-international-climate-and-forest-initiative (last visited Feb. 27, 2017). unep, supra note 39. Id.

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Guyana has already received commitments totaling US$190 million under the partnership.55 At the end of 2016, Norway had disbursed about US$150 million to Guyana. Of the total amount, US$70 million has been transferred to the Guyana REDD+ Investment Fund (grif). Eight projects are currently receiving support under the grif. Results include the approval of 167 loans and grants worth over US$1 million to micro and small enterprises in low carbon sectors. A development fund has been established to support the socio-economic development in indigenous communities and ca. US$1.3 million has been disbursed to 90 communities. A new project to reduce Guyana’s vulnerability to floods was initiated in 2015.56 In addition, US$80 million was transferred to the Inter-American Development Bank (idb) for the development of the Amaila Falls Hydropower Power Project.57 In order to comply with the remaining amount pledged, the GuyanaNorway agreement was extended. Guyana had not implemented all agreed key reforms in the forestry sector. Guyana and Norway are currently conducting a review of the Amaila Falls Hydropower project to reach a fact-based decision on its feasibility and the way forward.58 13.4

Ecuador’s Yasuní-itt Initiative

In 2007, the government of Ecuador proposed an initiative to help fund national conservation efforts in Amazonia. The Yasuní National Park, a 9,820 square kilometer area located in the Eastern part of Ecuador’s Amazonian territory, is considered one of the most biologically diverse areas on earth.59 55 Stabroeke News, Guyana, Norway set for forest partnership talks (Apr. 27, 2016), http://www.­s tabroeknews.com/2016/news/stories/04/27/guya ​ n a- ​ n or ​ w ay​ -​set-forest-partnership-talks/. 56 Ministry of Climate and Environment, Guyana (last updated Dev. 22, 2015), https://www .regjeringen.no/en/topics/climate-and-environment/climate/climate-and-forestinitiative/kos-innsikt/guyana/id734164/. 57 Ministry of Finance, Advancing Guyana-Norway Agreement, Financing for Green Initiatives Among Priorities at Climate Change Conference (Dec. 09, 2015), http://finance.gov.gy/ media/advancing-guyana-norway-agreement-financing-for-green-initiatives-among-pri. 58 Kaieteur News, US$250M Norway forest deal … Guyana gets extension to complete obligations, http://www.kaieteurnewsonline.com/2016/06/17/us250m-norway-forest-dea lguyana-gets-extension-to-complete-obligations/. 59 Univ. of Texas at Austin, Scientists identify Ecuador’s Yasuni National Park as one of most biodiverse places on Earth, ScienceDaily (Jan. 19, 2010), http://www.sciencedaily.com/­

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Due to this unique biodiversity, it has been declared a world biosphere reserve by unesco.60 The region is also home to an estimated 800 million barrels of crude oil, which represent 20 percent of Ecuador’s reserves.61 The oil is concentrated in the Ishpingo-Tambococha-Tiputini (itt) oil block, located inside the park. Although the area was designated as a national park in 1979, the Ecuadorian government continued to promote oil exploitation in Yasuní.62 In 2007, the Southern section of the park was placed off-limits to oil exploitation, through the delimitation of an untouchable zone designed to protect the territory of two indigenous groups.63 An environmental campaign led in 2005 raised attention to the ecological damage potentially caused by oil drilling in the Yasuní National Park and Biosphere Reserve in the Ecuadorian Amazon, and asked the Ecuadorian government to refrain from exploiting the region.64 An initial proposal to promote the sustainable development of the renewable resources of the National Parks in the Amazon rainforest of Ecuador, rather than extracting non-renewable oil resources, was published in 1994 by Luis Fierro.65 As a response to the campaign, President Rafael Correa proposed an alternative to ban the oil exploitation in Yasuní at the 62nd Session of the u.n. General Assembly in 2007. The Yasuní-itt Initiative would ensure a perpetual suspension of oil ­extraction

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releases/2010/01/100119133510.htm (“[T]his study demonstrates that Yasuní is the most diverse area in South America, and possibly the world”, quoting Dr. Peter English of The University of Texas at Austin). unesco, mab Biosphere Reserves Directory, Yasuní, http://www.unesco.org/mabdb/br/ brdir/directory/biores.asp?code=ECU+02&mode=all (last visited Feb. 27, 2017). The Guardian, Yasuni: Ecuador abandons plan to stave off Amazon drilling (Aug. 15, 2013), https://www.theguardian.com/world/2013/aug/16/ecuador-abandons-yasuni-amazondrilling. Alexandra Valencia, Ecuador to open Amazon’s Yasuni basin to oil drilling, Reuters (Aug. 16, 2013), http://in.reuters.com/article/us-ecuador-oil-idINBRE97E15220130816. Matt Finer et al., Leaving the Oil Under the Amazon: Ecuador’s Yasuní-itt Initiative, 42(1) Biotropica 63–66 (2010). Id., at 64. Yasuní – Leading Scientists Letter, Letter from some of the World’s Leading Scientists Against New Oil Roads in Yasuni Park and World Biosphere Reserve in the Ecuadorian Amazon (Feb. 14, 2005), available at http://www.saveamericasforests.org/Yasuni/Science/ Leading%20Scientists%20Letter.html. Luis Alberto Fierro, Comparative Valuation of Renewable Amenity Resources and Exhaustible Oil Resources: The Case of National Parks in the Ecuadorian Rainforest, Working Paper No.  4 (1994), available at https://docs.google.com/file/d/0B2keH2NAJ6iORW1jR1F6d1Y 1dEk/edit.

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in part of the Ishpingo-Tambococha-Tiputini (itt) area.66 In return, Ecuador requested payments totaling US$3.6 billion over 13 years to be raised from public and private contributions from the international community.67 The amount corresponded to half of what Ecuador would have realized in revenue from exploiting the resources at 2007 prices.68 Estimates suggested that the ­environmental benefits would have a net present value of US$9.89 billion.69 The environmental costs of oil production in the itt, on the other hand, would be at least US$1.25 billion in present terms.70 The primary goals of the initiative were to: (i) respect indigenous peoples’ territory, particularly those in voluntary isolation, (ii) protect the park, its biodiversity, and protected areas in the region, (iii) promote a transition to a ­sustainable economy based on renewable energy, as well as a viable means to improve social development and diversify domestic energy production; and (iv) combat climate change through an innovative option that kept approximately 410 M metric tons of CO 2 out of the atmosphere.71 Contributions to the international fund would derive from two main ­sources: (i) voluntary contributions and (ii) referential transactions linked to the carbon market. Within these two categories, several possible contributions were envisioned, such as contributions from governments, international multilateral organizations, civil society organizations, companies from Ecuador and other countries; auctions of emission permits or carbon taxes; general donations; debt swaps for conservation; as well as specific projects in renewable energy sources, avoided deforestation, conservation and social development.72 ­Market contributions would come from the sale of carbon credits for avoided emissions by keeping fossil fuels untapped. 66

Yasuní – itt, Ubicación Parque Nacional Yasuní – itt (Archive), available at https://web .archive.org/web/20120502105259/http://yasuni-itt.gob.ec/%C2%BFque-es-lainiciativa-yasuni-itt/ubicacion-yasuni-%E2%80%93-itt/. 67 Yasuní – itt, Qué es la Iniciative? (Archive), https://web.archive.org/web/20120502105937/ http://yasuni-itt.gob.ec/%C2%BFque-es-la-iniciativa-yasuni-itt/. 68 Carlos Larrea, Yasuni-itt Initiative: A Big Idea from a Small Country 17; 19, available at mptf.undp.org/document/download/4545. 69 Earth Economics, Yasuní (2007), available at http://www.eartheconomics.org/yasuni2007/index.html. 70 Carlos Larrea, supra note 68, at 27. 71 Matt Finer et al., Ecuador’s Yasuní Biosphere Reserve: a brief modern history and conservation challenges, 4 Environ. Res. Lett. 12 (2009), available at http://iopscience.iop.org/ article/10.1088/1748-9326/4/3/034005/pdf. 72 Carlos Larrea, supra note 68, at 20.

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Ecuador initially proposed a compensation package based on the 2007 oil prices. The Ecuadorian government issued Decrees 847 (Jan. 2008) and 882 (Jan. 2008) authorizing the establishment of a National Development Fund, and creating a Technical Secretariat.73 The fund was established to receive direct financial contributions or as credits against Ecuador’s foreign debt. The Fund would “help the country promote and develop renewable energy projects, transportation systems, programs to eliminate poverty, and equitable access to health care and education”.74 In 2008, the proposal was modified as a result of the global economic crisis and the difficulty of raising funds for the initiative. Ecuador shifted the strategy in favor of greater reliance on carbon markets. It would issue “Yasuní Guarantee Certificates” (cgy) for the CO 2 locked in the itt oil fields, with the objective of making them fungible commodities on the international carbon credits market.75 The ygc was a document issued by the State to the taxpayers of the Initiative. It represented a financial guarantee that the country would indefinitely maintain the oil reserves of the itt field underground, and followed a similar model as the European Trading System.76 These were emitted for the value of the compensations up to the amount of 407 million tons of CO 2 not emitted.77 It was a non-tradable document that did not pay interests or expire since the guarantee was in perpetuity and only effective in case the Ecuadorian State ordered the exploration and oil exploitation in the itt fields.78 The Ecuadorian government issued the ygcs in us dollars equivalent to the face value of each contribution equal to or above US$50,000. ygcs could be redeemed if the Ecuadorian government were to break the commitment upon which the Yasuní Initiative was based. Income from the sale of the certificates would go to a trust fund, and its interest would be used to fund sustainable development projects.79 The ­Yasuní-itt

73 74 75 76

77 78 79

Benjamin Sovacool, Energy and Ethics: Justice and the Global Energy Challenge 204 (2013). Id., at 204. Matt Finer et al., supra note 62, at 63–66. Remi Moncel, Ecuador Proposes Leaving Oil Untapped to Protect Forests and People (World Resources Institute, Jan. 29, 2009), http://www.wri.org/blog/2009/01/ecuadorproposes-leaving-oil-untapped-protect-forests-and-people. Yasuní – itt, La Estructure Financiera (Archive), https://web.archive.org/web/20120502 185725/http://yasuni-itt.gob.ec/preguntas-y-respuestas/la-estructura-financiera/. Id. Id.

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Trust Fund was formally established in 2010 and was administered by the Multi-Partner Trust Fund (mptf) Office of the United Nations Development Program (undp).80 In order to support the transition from an extractive economy based on oil exploitation to a sustainable development model, based on renewable energy, Ecuador would primarily invest in renewable energy projects with the capital from the funds.81 Additionally, funds would be devoted to the reduction of greenhouse gas emissions, the conservation of biodiversity and indigenous cultures, and reforestation.82 The money received would also be invested in social programs focused on education, health, and the creation of sustainable jobs in the surroundings of the projects and the improvement of the quality of life in the areas of influence of the projects of the initiative.83 The initiative promised to set a new standard for resource management and efforts to combat climate change, by pledging to leave the oil underground. However, after six-years, only $336 million had been pledged, less than 10 percent of the amount needed for the period, and of that only $13.3 million had actually been delivered.84 While the proposal generated interest, there were few takers, in part because Ecuador alone would decide how the donations would be spent.85 In July 2013, President Correa formed a commission to evaluate the Yasuníitt Initiative’s progress to date. The commission concluded that the economic results were not sufficient. On the following month, the president scrapped the plan citing poor follow through from the international community.86 Through an executive order, he liquidated the Yasuní-itt trust fund formally ending the initiative. The Yasuní itt Initiative ultimately succumbed to a lack of international support, despite the benefits it promised and during the six year period of its existence it faced challenges that included limited donors, internal political disagreement and a lack of trust between the Ecuadorian government and contractual partners that ultimately proved insurmountable.

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Tammy Vallejo and Martin Calisto Friant, Ecuador’s Yasuni-itt Initiative for mitigating the impact of climate change, 32(3) Environmental and Planning Law Journal 278–293 (2015). See also Matt Finer et al., supra note 71. 81 Carlos Larrea and Lavinia Warnars, Ecuador’s Yasuni-itt Initiative: Avoiding emissions by keeping petroleum underground, 13(3) Energy for Sustainable Development 221 (2009). 82 Yasuní – itt, La Estructure Financiera, supra note 77. 83 Yasuní – itt, Los Beneficios (Archive), https://web.archive.org/web/20120502185547/ http://yasuni-itt.gob.ec/preguntas-y-respuestas/los-beneficios/. 84 Reuters, supra note 61. 85 Alexandra Valencia, supra note 61. 86 Reuters, supra note 61.

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Despite the Yasuní Initiative being widely endorsed as a positive step toward curbing climate change, political and economic reservations persisted in what amounted to a lack of trust between Ecuador and contributing states. In addition, criticisms of the Yasuní Initiative included the perception that donations would be at risk because the ygcs would decline in value due to a lack of trading value in the international carbon markets and not gaining interest. Oil prices would ultimately increase and new demands would represent a significantly higher value on Ecuador’s oil reserve and political pressure to exploit it. Therefore, in a future scenario of relatively high oil prices, it could be more profitable for the state to exploit the Yasuní itt reserves than to preserve it, even if it had to compensate contributors for the value of their ygcs. An additional challenge facing the initiative is the fact that by acting as carbon offsets ygcs would have done little to address the potentially irreversible impacts of climate change. A country or corporation wishing to emit a ton of carbon dioxide could still do so as long as it offset that ton by purchasing a carbon credit or conducting an activity somewhere else to reduce greenhouse gas emissions, such as buying ygcs. Thus, the Initiative allowed for every ton of greenhouse gas avoided or offset by the Yasuní Initiative to be emitted somewhere else across the globe. Environmental groups started a campaign to maintain the ban on oil in Yasuní-itt through a national referendum required by 5% of the electorate, corresponding to just fewer than 600,000 people.87 While the group gathered the required signatures, over 400,000 were invalidated, and the Electoral Court rejected the request.88 Currently, there has been some drilling in the Yasuní area, which has caused deforestation, air and water pollution. 13.5

Ecuador’s Socio Bosque Program

After the innovative acknowledgment of nature rights included in the 2008 Constitution, it was important for Ecuador to implement the new approach in the legislation. Implementation was provided through Ecuador’s N ­ ational

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Eye on Latin America, Ecuador: Campaign to save Yasuní-itt making steady progress, but faces new threats (Jan. 30, 2014), https://eyeonlatinamerica.com/2014/01/30/ ecuador-yasuni-campaign-progress-threat/. Ecuador: Yasuní signatures rejected by Electoral Court, activists allege fraud and bias (May 9, 2014), https://eyeonlatinamerica.com/2014/05/09/yasuni-signatures-rejected-fraud/.

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­ evelopment Plan, also called the National Plan for Good Living (Buen Vivir).89 D The national policy framework had the specific mandate to reduce deforestation rates by 30 percent until 2013, decrease the ecological footprint, and reduce poverty in urban and rural areas, by 20–25 percent and 50 percent respectively. Other specific policies include protecting biodiversity and water sources, and promoting climate change adaptation and mitigation.90 Based on the guidelines of the Constitution, which ensures the right to the environment,91 and the right of nature,92 and on the Objective 7 of the National Plan of Buen Vivir,93 the Socio Bosque program was created by the Ministry of Environment in 2008.94 The program has three specific objectives: to (i) achieve conservation of native forest areas, moorlands and other native vegetation formations of Ecuador; (ii) reduce greenhouse gas emissions caused by the effect of deforestation; and (iii) contribute to the improvement of the living conditions of the inhabitants of rural populations settled in these areas.95 Specifically, the goals of the program as defined by mae are: to (i) protect over 3,600,000 ha of forest and other native ecosystems, thereby conserving globally important biodiversity, reducing greenhouse gas e­ missions from deforestation, protecting soils and water, and controlling natural disasters; and (ii) increase

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senplades, National Plan for Good Living 2007–2010 (2007), available at http://www​ .buenvivir.gob.ec/versiones-plan-nacional;jsessionid=224D956A368187C301241C8F6A346 E8B#tabs3 (last visited Feb. 12, 2017); senplades, National Plan for Good Living 2009– 2013 (2009), available at http://www.buenvivir.gob.ec/versiones-plan-nacional;jsessionid =224D956A368187C301241C8F6A346E8B#tabs2; and senplades, National Plan for Good Living 2013–2017 (2013), available at http://www.buenvivir.gob.ec/versiones-plan-naciona l;jsessionid=224D956A368187C301241C8F6A346E8B#tabs1/. senplades, National Plan for Good Living 2009–2013 (2009). Constitución de la República del Ecuador, art. 14: “It is recognized the right of the population to live in a healthy and ecologically balanced environment that ensures sustainability and well being, sumak kawsay. It is declared of public interest the preservation of the environment, the conservation of ecosystems, the biodiversity and the integrity of the genetic heritage, the prevention of environmental damage and the recovery of degraded natural areas.” Constitución de la República del Ecuador, art. 71(3): “The State shall encourage natural and legal persons to protect nature, and promote respect for all the elements that form an ecosystem.” “Objetive 7: Ensure the rights of nature and promote territorial and global environmental sustainability”. Ecuador, Ministry of Environment, Ministerial Accord No. 169 (Nov. 14, 2008), available at http://sociobosque.ambiente.gob.ec/files/images/articulos/archivos/am169.pdf. Id., art. 1.

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income and protect human capital in the poorest r­ural ­communities of the country, with a target group of between 500,000 and 1,500,000 people.96 In order to fulfill the objectives, the Socio Bosque program provides an incentive, through the Ministry of Environment, to the owners of lands covered by native forest, moorlands and other native vegetal formations across the country. These include individuals and communities, and specifically exclude property owners of forest plantations.97 The incentive is conditioned to the conservation and protection of those areas.98 Socio Bosque is a national conservation agreement scheme.99 It provides economic incentives to individual landowners and indigenous communities who voluntarily commit to conservation and protection of their native forests, moors or other native vegetation.100 The incentive consists of direct financial transfer per hectare of native forest, through the signature of a voluntary conservation agreement with the Ministry of Environment, monitored on a regular basis for compliance.101 Conservation agreements are defined as “a ­transparent, voluntary, and participatory alliance, in which the owners or administrators of a resource agree to protect the natural value of an area in exchange for direct, ­ongoing, and structured economic incentives to offset the costs of conservation.”102 In particular, the agreements “specify a mutually agreed set of conservation actions, benefits, and criteria for monitoring to ­ensure transparent provision and fair distribution of benefits based on conservation performance”.103 In 2013, following the guidelines provided by the National Plan Buen Vivir 2013–2017, the Government of Ecuador enacted the National Policy of Governance of the Natural Heritage for the Society of Well-Being. The purpose of this policy is guiding the actions and strategies that allow an institutional management of the natural heritage that enables the proper insertion in the economic dynamic of the country.104

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97 98 99 100 101 102 103 104

Free de Koning et al., Bridging the gap between forest conservation and poverty alleviation: the Ecuadorian Socio Bosque program, 14 Env. Science & Policy, 531–542, at 533 (2011), available at http://sociobosque.ambiente.gob.ec/files/ArticuloSocioBosquerevista.pdf. Ecuador, Ministry of Environment, Ministerial Accord No. 169, art. 4. Id., art. 3. Free de Koning et al., supra note 96, at 531. Id. Id. Id., at 532. Id. (citing Gjertsen and Niesten, 2010; Niesten et al., 2010; Mora et al., 2010). Ministry of Environment. Acuerdo Ministerial No. 114 (2013), art. 2.

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In order to fulfill strategic objectives such as the development of public ­ olicies to ensure the exercise of rights, the promotion of research on natup ral heritage and citizen action,105 the Government of Ecuador defined five strategic axes, namely (i) sustainable management of natural sceneries, (ii) ­incentives for conservation and sustainable use of the natural heritage, (iii) integral management of forest and wildlife, (iv) management of ­biosecurity and genetic heritage, and (v) research and monitoring of natural heritage.106 In the same year, the Government of Ecuador established the National Program of Incentives to Conservation and Sustainable Use of Natural Heritage “Socio Bosque” with the purpose of integrating the initiatives of incentives in the national program procuring an integral intervention of the territory and promoting the improvement in the living conditions of the inhabitants.107 The agreement strengthened Socio Bosque by bringing seven strategic objectives for the Government of Ecuador: (i) encourage afforestation, reforestation and revegetation activities with native species in areas affected by deforestation, degradation, fragmentation, erosion, desertification, forest fires and other human effects; (ii) encourage the conservation and protection of native vegetation and forest ecosystems, shrubs and primary and / or fragile hybrids; (iii) encourage the production and sustainable trade of biodiversity and non-timber forest products; (iv) encourage forest management focused on the four main links of the value chain of wood (procurement, production, process and commercialization); (v) facilitate the adjudication of lands of the State’s forest heritage and forests and protected vegetation to ensure their conservation and/or sustainable use; (vi) facilitate and promote the acknowledgment and assessment of environmental services; and (vii) promote the application and articulation of tax incentives in force in the law.108 In addition, the agreement defined five components for the program, namely (i) incentives to the conservation of native vegetation and forest ecosystems, shrubs and primary and/or fragile hybrids such as moorlands and mangroves; (ii) incentives to active (reforestation with protection purposes) and passive restoration of degraded ecosystems; (iii) incentives for sustainable forest management with purposes of reducing transactions and production costs and facilitating the link between the producer and the market; (iv) incentives for the production and sustainable commercialization of biodiversity and non-timber forest products; and (v) financial sustainability of the Program through the 105 106 107 108

Id., art. 3. Id., art. 4. Ministry of Environment. Acuerdo Ministerial No. 131 (2013), art. 1. Id., art. 2.

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acknowledgment and assessment of environmental services, tax incentives, compensations and other actions of international and national cooperation.109 Socio Bosque quickly grew since its creation in 2008, generating nation-wide participation. At the end of 2016, the program had signed 2,763 agreements. These promoted conservation in 1,488,372.63 hectares of land.110 Between 2008 and 2015 the rate of deforestation had decreased from 77 thousand hectares a year to 47 thousand hectares a year. Indeed, the Socio Bosque Project has prevented the loss of environmental services and the loss of livelihoods for thousands of people living in the forest.111 Investments since the launch of the program total US$55.6 million. External cooperation is not refundable; the 23 percent of annual contributions came from the Ecuadorian private sector. Other contributors include the governments of Germany and Norway, as well as Conservation International.112 The characteristics of Socio Bosque make it a good example of a national conservation agreement scheme from which important lessons can be drawn: it is part of a clear government policy, combines ecosystem conservation with poverty alleviation, incentivizes and monitors local socio-economic investment, is transparent and straightforward, and has generated nation-wide participation of local and indigenous communities and farmer households. Socio Bosque furthermore sheds light on how benefit-sharing mechanisms for national REDD+ strategies could work in practice.113 13.6 Conclusion We shall not be naïve: the Amazon is a very rich region, and there shall be no doubt that Amazon governments will continue to foster hydroelectric, petroleum, highways, and mining projects to generate wealth and alleviate poverty and improve living conditions in the Amazon region. The major goal is, after all, integration of the Amazon region within their national territories as to increase social and economic wealth. The world’s markets are unified under 109 Id., art. 3. 110 Socio Bosque, Nuestros Resultados, http://sociobosque.ambiente.gob.ec/node/44 (last visited Feb. 27, 2017). 111 Ministerio de Ambiente. Programa Socio Bosque (2016), available at http://sociobosque​ .ambiente.gob.ec/files/Resumen%20programa%20socio%20bosque%20enero%202016​ .pdf. 112 Id. 113 Free de Koning et al., supra note 96, at 531.

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the increasing control of financial markets, and Amazonia is increasingly important both in an economic and geopolitical perspective.114 The economic relevance derives from the natural resources that can be found in the region. Biodiversity, water, minerals, timber, food production and biofuels, in addition to the ecosystem services it provides, become more and more relevant as their availability is reduced elsewhere in the world.115 These activities, however, can be done sustainably, preserving the unique parts of Amazonia. In order to do so, funding is key. Conservation has to be shaped within the economic and social framework of the region, and the paradigm of an untouchable Amazon is unrealistic.116 Nonetheless, instead of conducting progress by inducing destruction, the goal of economic integration of the Amazon region into the national territories of Amazon countries can be strategically reached to induce sustainability. The cooperation between Amazon countries is a path that can bring joint efforts to generate wealth and reassure sovereignty over its rich resources while also inducing sustainability to a more efficient use of resources. Amazon countries, and the acto, in particular, have traditionally relied on financial or other forms of assistance by multilateral institutions such as the World Bank or the Global Environmental Facility, or states such as Germany, Norway, and the Netherlands. Indeed, the vast majority of acto projects were developed solely based on the financial support from other organizations. Technical and financial assistance provided by the international community were crucial not only to the organization as a whole, but also to helping individual Amazon states achieve certain environmental objectives, such as establishing protected areas.117 Despite this assistance, however, the patterns of deforestation and environmental degradation still persist. Since the income from the member countries’ quotas can only fund the basic functioning of the organization, each project requires specific external funding. The model, however, is flawed and time-consuming. As seen throughout this book, the organization has time and again discussed new sources of funding, trying to find alternatives to the international assistance provided in the form of official development assistance (oda). Nonetheless, international assistance is insufficient, and will not deliver the scale of finance required.118

114 115 116 117 118

Bertha K. Becker, supra note 22, at 1. Id., at 2. Michael Goudling et al., The Smithsonian Atlas of the Amazon 11 (2010). Beatriz Garcia, supra note 3, at 320. Id., at 320.

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Considering the limits observed with “traditional” forms of international assistance, it is essential to find alternatives. Member countries, have, however, been successful in creating new mechanisms that provide the necessary funds to invest in conservation. These range from developing national funds, to requiring compensation from abstaining from exploiting natural resources, inducing the national application of market-based mechanisms such as REDD+, and helping communities invest in sustainable practices. Indeed, Amazon countries have found several innovative ways to improve forest governance, addressing the challenges in curbing deforestation and ­climate change. These achievements largely relied on partnerships with international organizations, ngos, and developed countries, mostly Germany, Norway, and the Netherlands. These stakeholders have provided the financial tools for countries to promote conservation, complying with the meas already applied to the region, as well as other voluntary goals exteriorized over the years. Some of those initiatives were highlighted in this section, providing some alternatives that could be used as examples for the acto. In each of those cases, the organization could play a different role, from a more active one, such as creating a fund itself, which could then more easily fund projects and activities without the need to reapply for funding each time, to a more passive one, promoting technology transfer and helping countries achieve similar results by replicating models, and everything in between, such as regulating a marketbased approach at the regional level. Through the investment on some of these alternatives, the acto could achieve more practical results.

chapter 14

Stakeholders in Amazonia The global profile assumed by the Amazonian rainforest debates about climate change is evidence of how some of the most pressing environmental challenges of our era transcend the traditional structures of governance by which relations between states have been organized. It confirms that environmental change can test traditional concepts of sovereignty, and hence the very notion of the nation state, something already placed on notice by economic globalization and the emergence of a comprehensive network of multilateral bodies developing forms of global “governance” that individual states find impossible to ignore.1

∵ Throughout centuries of degradation in Amazon countries, a series of different responses to environmental problems have been generated. These were developed by specific stakeholders that relate to environmental and related issues in Amazonia. Each country provides responses for dealing with the regional challenges according to their national environmental institutional structure.2 Different government bodies have different priorities, which direct how the policies are implemented. It is therefore essential to analyze the environmental institutions that make up the Amazon countries. There is no single environmental institution, or a single common authority dealing with Amazonia. However, countries are constantly charged with navigating the wide range of government bureaucracies to promote environmental preservation at the national and regional level. The purpose of this chapter is to summarize some of the relevant government agencies across the eight Amazon countries. One of the main challenges faced in forest protection throughout the regionis poor governance. Indeed, the protection of forests is often d­ ecentralized, with several government bodies simultaneously in charge, each ­addressing it from a ­different perspective. These often don’t coordinate. In a­ ddition, there is 1 2

1 Gavin O’Toole, Environmental Politics in Latin America and the Caribbean, Institutions, Policy and Actors, 84 (2014). 2 unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 223 (2009). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004313507_015

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a ­disconnect between the policies at the international, regional, and national levels. To add to the confusion, policies are also advanced at the state and municipal levels. The first step in improving policies for forest protection is to identify the relevant players. This chapter contributes to this step, and summarizes some of the structures and challenges in the hopes to reduce the long path to the solutions. This chapter analyzes the relevant stakeholders in Amazonia. Section 13.1 briefly discusses the relevance of stakeholders in shaping environmental policies in Latin America. Section 13.2 summarizes the structure of environmental organizations in each country, in particular as it pertains to forests. Each of the eight Amazon countries has its own environmental institutional structure. The environmental institutional framework starts with the ministry in charge of environmental policies. Several government bodies fall under its auspices, including some that deal specifically with forests. For the purposes of this chapter, the following government bodies were identified in each country: the environment management agency, the forestry agency, as well as the protected areas agency. The goal of this section is not to provide a comprehensive analysis of the environmental governance system of Amazon countries, but rather highlight some of the relevant agencies in charge of forest policies, and of the Amazon rainforest specifically. While there are several other government bodies relevant for environmental protection at the state and municipal levels, this chapter was limited to the national level. Section  13.3 analyzes the national governance structure for cooperation within the Amazon Cooperation Treaty’s (ACT) framework. At the regional level, the Ministry of Foreign Affairs in each country is in charge of d­ ecisions about the Amazon rainforest. In addition, each Amazon country has a Permanent National Commission (pnc), the national agency in charge of ­coordinating with the Amazon Cooperation Treaty Organization (acto). After a brief overview of the pncs mandate and a summary of its structure within each country, a ­country by country analysis is provided. The main goal of analyzing the pncs right after the analysis of the environmental institutional structure in each country is to show the (dis)­connection between them. Finally, Section 11.4 provides a brief overview of some of the other non-governmental parties that represent important Amazonian stakeholders in cooperation for forest ­protection. These include nonprofit organizations, multilateral ­institutions, and others. 14.1

Relevance of Stakeholders

After analyzing the laws that shape forests in the region, it is necessary to look at the institutions that manage them. Policies are designed to improve the

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management of assets. However, in practice, many socially worthwhile policies are not adopted or implemented. Institutions are at the core of implementation. When these are weak or unjust, it creates mistrust and uncertainty, and fails to promote general well-being.3 This chapter analyzes the key institutions that are involved with forest policies in Amazonia, and the roles they perform, or fails to perform, in the region. Amazonian environmental institutions are managed independently in each country. While some efforts are carried out jointly in terms of programs and projects, there is still no common vision for Amazonia.4 However, Amazon countries face similar challenges. While the legal framework of forests and protected areas is generally well developed, deforestation rates have largely failed to decrease. The reason is mostly the same: poor enforcement, uncertainty in land use, property rights and use of forests, lack of information about forest resources, and an increased demand for forest products.5 Poor governance is at the core of problems. Since the issues are similar, and countries share an ecosystem that is best preserved through common efforts, it is essential to ­provide a collective answer to the problems. There are three main barriers to the emergence of a successful institutional environment. Democracy favors policies for concentrated interests, giving less weight to the dispersed issues spread across a larger number of people, such as benefits from e­ nvironmental assets. While societies may prohibit a negative behavior, such as polluting ­water, governments often fail to deliver on commitments to punish polluters. Finally, institutions are often not sufficiently inclusive, failing to promote broad participation. Overcoming those barriers is one of the biggest challenges of environmental protection, and forest protection specifically.6 Public policy, a government’s response to public problems, is essential to the study of the politics of the environment. It determines, among other things, the distribution of public goods, such as those in the Amazon rainforest. As seen throughout this book, environmental change, and forests in particular, tests the traditional concepts of sovereignty, and hence the very notion of the n ­ ation state. As a result, national and foreign relations are key 3 4 5 6

3 World Bank, World Development Report 2003: Sustainable Development in a Dynamic World – Transforming Institutions, Growth, and Quality of Life 37 (2003), available at https://openknowledge.worldbank.org/bitstream/handle/10986/5985/WDR%202003%20-%20English​ .pdf?sequence=1&isAllowed=y. 4 unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 56 (2009). 5 World Bank, La observancia de la legislación forestal y la gobernanza de los bosques en los países tropicales 8 (2008), available at http://www.fao.org/docrep/012/al044s/al044s00.pdf. 6 World Bank, supra note 3, at 37–38, 46, 50–51.

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to ­policymaking.7 Latin America often faces similar environmental problems. However, there are considerable differences as to how the environment is dealt with in each country.8 As the environmental agenda rose nationally, new stakeholders began to participate more actively in environmental governance, challenging traditional  state-centric approaches. Environmental management developed ­rapidly in Latin America through public policies that shaped laws and regulations, but also promoted institutionalization as ministries and agencies were created.9 Environmental activism brought the active role of civil society. More recently, indigenous people throughout the region have emerged as an essential voice, particularly in the Amazon rainforest. The role of institutions has been widely discussed. Essential in managing the relationship between national and international bodies, environmental institutions have been at the forefront of raising awareness about environmental issues. Environmental ministries were often tied to agricultural, fisheries, mining and energy ministries which goal was to safeguard the economic contribution of natural resources. While environmental management has developed greatly over the last two decades, there is still plenty room for improvement. Agencies often evolved out of the creation of protected areas established to conserve forest resources. However, bureaucracy often hinders the ability to influence policy. Institutional capacity is therefore crucial to promote strong, stable, representative institutions for a healthy democracy.10 The number of protected areas has significantly increased over the past decades. However, Amazon countries still face many challenges with its ­management, along with the enforcement of the rules that regulate them. The implementation gap is often the result of capacity constraints at different levels, from individuals to organizations, regarding cooperation patterns and framework conditions, and lack of resources.11 Along with traditional state-run protected areas, the world has seen a rise of new models of management, such as protected areas established and ­managed by indigenous peoples, local communities, ecotourism ­organizations, ­non-profit 7 8 9 10 11

7

Gavin O’Toole, Environmental Politics in Latin America and the Caribbean, Introduction, 95 (2014). 8 Id., at 96. 9 O’Toole, supra note 1, at 5–6. 10 O’Toole, supra note 7, at 97–98. 11 iucn, Governance of Protected Areas: From understanding to action, Best Practice ­Protected Area Guidelines Series No. 20, v (2013).

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trusts, private individuals, commercial companies and religious institutions.12 Indeed, iucn identifies four categories of governance types for management of protected areas.13 Governance by government has a federal or national ministry or agency, or a sub-national ministry or agency, in charge, or a government-delegated management, such as an ngo. Shared governance refers to a ­collaborative management, with various degrees of influence, a joint management, with a pluralist management board, or transboundary management, with various levels across international borders. Private governance entails an authority and responsibility for the protected area by an individual owner, a non-profit organization, either an ngo, university or cooperative, or by a forprofit organization, such as individuals or corporations. Finally, governance by indigenous peoples and local communities exist in indigenous peoples’ conserved areas and territories, or community conserved areas declared and run by local communities.14 Scientific institutions also play a key-role in environmental institution building in the region, influencing economic policies and providing an early source of environmentalism. As new stakeholders are invited to actively participate in this process, it becomes increasingly clear that governance is a key component of the success of protected areas.15 In order for protected areas to achieve the goal for which they are created, they need to be embedded within a supportive environment. “Supportive” refers not only to the “ecology of conservation zones and their connecting corridors but also to the knowledge, efforts and broad agreement of the people living in and around such protected areas, and of the institutions affecting and being affected by them”.16 The emerging forest policy regimes have significantly shaped who has access to the forest, how the forest resources are used and the benefits that are utilized. While forest reforms over the last two decades in Amazonia have embraced policy regimes founded on the principles of sustainable forest management, there are still many gaps in the policy frameworks adopted. Some recent changes to forest policy frameworks emphasize approaches towards additional integrated forest management, simplification of regulations and incentives for improved forest management. Critics argue that forest rights of indigenous people and smallholders are still fragile, leading to challenges in the adoption of sustainable forest management and the emergence of a system to assure a 12 13 14 15 16

12 Id. 13 See iucn, Guidelines for applying protected area management categories (2008). 14 Id. 15 iucn, supra note 12, at v. 16 Id.

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legal timber supply. As a result of the constraints, informal timber extraction persists.17 Developing countries often had a complex relationship with society, and the institutions that manage resource use in environmental policy in Latin America have not developed organically. Countries are often vast, providing difficulties for the government to govern the rural hinterland and border regions adequately. In addition, states have been constrained by powerful sectors of society.18 Weak institutions often represent a regional problem, with states giving the illusion of strength but failing to carry out basic tasks. With environmental matters, and forests in particular, the state has been the main axis of competition between rival interests, a reality that has remained since colonialism.19 As a result, understanding the institutions that shape the norms and attitudes that characterize the prevailing culture in a country is complex. According to the World Bank, effective environmental institutions should play three key roles: (i) pick up signals about needs and problems, including generating information, giving citizens a voice, responding to feedback, and fostering learning; (ii) balance interests by negotiating change and forging agreements, and by avoiding stalemate and conflicts; and (iii) execute and implement solutions by creating follow through on agreements.20 The first role involves understanding the problems faced by the country through scientific measurements, voice and feedback.21 In addition to having government agencies that produce information, therefore analyzing the current state of the environment, it is essential to have mechanisms in place so that people can be heard. Decentralization allows for a broader range of voices, especially in vast countries such as Brazil. The balancing of interests takes place at many levels. Transparency is at the core of better governance as it improves information provision that catalyzes shifts in political balances and real world decisions. Greater availability of information is often associated with better environmental performance.22 An effective management regime for the conservation and sustainable use of forest resources requires a variety of stakeholders involved, with diverse 17 18 19 20 21 22

17

Pablo Pacheco et al., Smallholder Forestry in the Western Amazon: Outcomes from Forest Reforms and Emerging Policy Perspectives, 7(9), 193 Forests 1 (2016), available at http:// www.cifor.org/publications/pdf_files/articles/APacheco1601.pdf. 18 O’Toole, supra note 1, at 6. 19 Id., at 7. 20 World Bank, supra note 3, at 37. 21 Id., at 44. 22 Id., at 44.

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­interests and values.23 As there are often divergent positions and interests, sustainable forest management requires broad participation by a wide range of actors from different sectors of society. This chapter analyzes the governance model at the national level, and touches briefly on the other non-traditional actors whose participation is on the rise. Improving forest governance, which is defined as “the legal and institutional framework within which decisions are made in society”, is the main challenge currently faced by Amazon countries. The stakeholders involved are the final piece of the puzzle. 14.2

Environmental Institutions in Amazon Countries

Environmental management in Latin America has developed considerably over the last 20 years, following two different approaches. The first one treated the environment as a sector in its own right, in which an environmental body eventually gained ministerial status. The second approach treated it as a crosscutting issue, by which a collegiate body brought together the areas of public administration whose decisions impinged upon the environment. In the second scenario, environmental management was usually tied to ministries of specific industries, such as mining, energy, fisheries, or agricultural. In most cases, these strategies were consecutive, with the environmental regulatory frameworks and ministerial departments of agencies establishing and implementing policies created during the 1970s.24 Until 1995, only Brazil and Colombia had a cabinet-level ministry dedicated exclusively to the environment. In other countries, environmental affairs were incorporated in ministries with responsibilities only partially related to the environment, such as natural resource management. However, environmental management increasingly became a separate ministerial portfolio, end ministries were created with specific powers and status.25 Embedding environmental functions in existing agencies with different missions and competing values often causes bureaucratic impediments to policy progress.26 Currently, most Amazon countries have a ministry in charge of environmental policies. Suriname and Venezuela are the exception. Venezuela recently ­extinguished the ministry of environment, transferring the environmental mandate to a new ministry with multiple purposes, which focuses on socialism 23 24 25 26

23

Geraldo Mery et al., Making Latin American Forests Work for People and Nature: Essential forest policies for Latin America 15 (catie; wfse, 2009). 24 O’Toole, supra note 1, at 11. 25 Id., at 18. 26 Id., at 17–18.

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Stakeholders in Amazonia

as the answer to environmental problems.27 Suriname’s environmental policies are under the umbrella of the Ministry of Labor, Technological Development and Environment (atm). Brazil, Ecuador, Guyana, and Peru have ministries of environment with a specific and unique focus on environmental protection. Bolivia’s ministry has a double focus on environment and water. Colombia’s ministry focuses on environment and sustainable development. At the federal level, forests are usually under the umbrella of the Ministry of Environment, or equivalent. However, other ministries might also be involved, depending on the issue at hand. In general, Amazon countries have a government agency in charge of the forest sector, either under the auspices of the ministry of environment, or natural resources. Environmental agencies have often evolved out of the creation of protected areas established to conserve forestry resources.28 In addition, there is an agency in charge of environmental management at the federal level, which is responsible for issuing environmental permits, as well as approving environmental impact assessments. Finally, Amazon countries have a government agency in charge of protected areas. These institutional bodies are highlighted by country in Table 39. The table summarizes the main agencies that encompass the governance structure for environmental matters and forest protection at the national level. It should be noted that this is not a comprehensive structure of forest management at the national level, but rather highlights some of the agencies that are relevant for this discussion. Table 39

Environmental institutions of the Amazon countries

Country

Environmental ministry

Forest agency

Management of protected areas

Bolivia

Ministry of Environment and Water

Brazil

Environmental Ministry (mma)

Unit for Management and Conservation of Forests Brazilian Forest Service (sfb)

National Service of Protected Areas (sernap) Instituto Chico Mendes de Conservação da Biodiversidade (ICMBio)

27 28

27 See below. 28 O’Toole, supra note 1, at 11.

524 Table 39

Country

chapter 14 Environmental institutions of the Amazon countries (cont.)

Environmental ministry

Forest agency

Management of protected areas

Colombia Ministry of the Directorship ­Environment and of ­Forests, ­Sustainable Development ­Biodiversity and Ecosystem Services

National System of Protected Areas (sinap)

Ecuador

Ministry of Environment

Guyana

Ministry of the Forestry ­ residency / Department Commission P of Environment

Directorship of National Biodiversity / Unity of Protected Areas and Fragile Ecosystems Protected Areas Commission/ National Parks Commission National Service of Protected ­Areas (Sernanp)

Peru

Ministry of ­Environment (minam) / Vice-Ministry of Strategic Development of Natural Resources Suriname Ministry of ­Labor, ­Technological ­Development and ­Environment (atm) Venezuela Ministry for Popular ­Power for Eco-Socialism and ­Waters (minea) / ­ Directorate for Environment

Directorship of National Forest

National ­Environmental Council Suriname Forest Service

Nature ­Conservation Division

National Forest Company

National I­ nstitute of Parks (inparques)

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Bolivia At the national level in Bolivia, the Ministry of Environment and Water is in charge of environmental matters.29 It replaced the Ministry of Sustainable ­Development and Environment in 2009.30 The Ministry promotes development in harmony with Mother Earth.31 Within its structure, the Vice-Ministry of Environment, Biodiversity, Climate Change, Management and Development of Forests32 formulates and implements policies, norms and programs regarding the sustainable use of biodiversity, environmental protection and conservation, wildlife and protected areas.33 Two structures within the Vice-Ministry deal with forest issues: the General Directorship of Biodiversity and Protected Areas (dgbap), and the Directorship of Management and Forest Development (dggdf). The dgbap is in charge of protected areas and the general management of biodiversity.34 It has a unit for Wildlife and Protected Areas,35 which carries out the work of the ­National Service of Protected Areas (sernap).36 The dggdf is in charge of forests that are not considered protected areas.37 Its role is to articulate and manage programs, policies and projects for the strategic use of forest resources. It has a unit for management and conservation of forests,38 and a unit for productive forest development.39 The unit for the management of forest 29 30 31 32 33 34 35 36 37 38 39

29 30 31

32 33 34

35 36 37

38 39

See Ministerio de Medio Ambiente y Agua, available at http://www.mmaya.gob.bo (last visited Dec. 12, 2016). Bolivia, Supreme Decree No. 29894 (Feb. 7, 2009), art. 13(q); 94; modified by Supreme ­Decree No. 0429 (Feb. 10, 2010). Ministerio de Medio Ambiente y Agua, Misión Institucional, available at http://www​ .mmaya.gob.bo/index.php/informacion_institucional/content,1384.html (last visited Dec. 12, 2016). In the original: Viceministerio de Medio Ambiente, Biodiversidad y Cambios Climáticos. Bolivia, Supreme Decree No. 29894 (Feb. 7, 2009), art. 13, q, 94; modified by Supreme ­Decree No. 0429 (Feb. 10, 2010). In the original: Dirección General de Biodiversidade y Áreas Protegidas. For the full structure of the dgbap, see Ministerio de Medio Ambiente y Agua, dbbap, available at http://www .mmaya.gob.bo/index.php/informacion_institucional/DGBAP,1470.html# last visited (Dec. 12, 2016). In the original: Unidad Vida Silvestre y Áreas Protegidas. In the original: Servicio Nacional de Áreas Protegidas (sernap). In the original: Dirección de Gestión y Desarrollo Forestal. For the full structure of the dgbap, see Ministerio de Medio Ambiente y Agua, dggdf, available at http://www​.mmaya.gob .bo/index.php/informacion_institucional/DGGDF,1474.html last visited (Dec. 12, 2016). In the original: Unidad Manejo y Conservación de Bosques. In the original: Unidad Desarrollo Productivo Forestal. For more information on the hierarchy and attributions within the Ministry of Environment, see Ministério de Medio Ambiente y Água, Resolución Ministerial No. 368 (Dec. 19, 2011).

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Min. of Environment and Water

Figure 7

Vice-Min. of Environment, Biodiversity, Climate Change, Management and Development of Forests

General Directorship of Biodiversity and Protected Areas

Wildlife and Protected Areas

sernap

Directorship of Management and Forest Development

Hierarchy of selected forest management government institutions in Bolivia.40

conservation is in charge of the development of sustainable use of forest resources, which creates a market to be regulated by the unit of forest ­resources.41 A graphic depiction of highlighted agencies is included in Figure 7. In addition to the structure within the ministry in charge of environmental policies, some government bodies under the auspices of the Ministry of Development Planning are worth mentioning.42 The System of Renewable Natural Resources Regulation (sirenare) was created to regulate, control and o­ versee the sustainable use of natural resources.43 The Superintendence of Forestry is an independent body, part of Regulation sirenare, dedicated to the regulation and control of forests.44 It supervises the enforcement of the forest ­regime, gives concessions and authorizations for forest use, among other attributions.45 The National Fund for Forest Development (fonabosque)46 is a financial decentralized body responsible for providing for sustainable forest projects.47 40 41 42 43 44 45 46 47

40

41

42 43 44 45 46 47

Please note this is not a complete overview of the structure of the Ministry of Environment and Water, but rather depicts the agencies that are relevant for the purpose of this book. Ministerio de Planificación del Desarrollo, available at http://www.planificacion.gob.bo/ http://www.mmaya.gob.bo/index.php/informacion_institucional/content,1384.html (last visited Dec. 12, 2016). For more information see Ministerio de Medio Ambiente y Agua, supra note 31. In the original: Sistema de Regulación de Recursos Naturales Renovables (sirenare). Regulated by Supreme Decree No. 26389 (Nov. 8, 2001). In the original: Superintendencia Florestal. Bolivia, Law No. 1700 (Jul 12, 1996), art. 19; 21(iii). Bolivia, Law No. 1700 (Jul 12, 1996), art. 22. In the original: Fondo Nacional de Desarrollo Forestal (fonabosque). Bolivia, Law No. 1700 (Jul 12, 1996), art. 19, 23.

Stakeholders in Amazonia

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Brazil In Brazil, the National System of the Environment (sisnama) regulates environmental governance, encompassing federal, state and municipal bodies of environmental administration.48 At the federal level, there is a superior body, a consultative and deliberative body (conama), a central body (the Ministry of Environment – mma), and an executive body (ibama). The mma is responsible for all environmental matters, including forestry.49 It was created in 1992 and, among its functions, promotes environmental policies and programs for the Amazon region.50 There are four departments within the Secretariat of Biodiversity and Forests51 of the mma: the Department of Forests, the Department for Biodiversity Conservation, the Department for Protected Areas, and the Department for Genetic Heritage.52 In addition, two collegiate bodies have specific forest mandates: the Commission for Management of Public Forests, and the Commission of National Forests (conaflor).53 conaflor is a consulting body, which proposes principles and policies for forests.54 Among other things, conaflor implements the forest management program.55 It is composed of members of several ministries, and representatives of the civil society, as well as industries related to forests, among others, in order to promote a diverse overview of the inter-related issues.56 The Brazilian Forest Services (sfb)57 was created for the management of public forests for sustainable production through the creation of forests, designation of management for local communities, and forest concession.58 It is ­responsible for concessions, such as timber harvesting and extractions in public forests. The designation of forests for the local communities is made through the creation of extractive reserves or sustainable development r­eserves, or 48 49 50 51 52 53 54 55 56 57 58

48 49 50 51 52 53 54 55 56 57

58

Brazil, Federal Law No. 6,938 (Aug. 31, 1981). Ministério do Meio Ambiente, Apresentação, available at http://www.mma.gov.br/o -ministerio/apresentacao (last visited Dec. 16, 2016). Brazil, Federal Law No. 10,683 (May 28, 2003), which organized the Presidency and its Ministries, and constituted the authority of the Environmental Ministry. Id., art. 18. Id., art. 2, ii, b. Id., art. 2, iii, f, g. Brazil, Federal Decree No. 3,420 (Apr. 20, 2000), art. 4-A. Id., art. 4-A, i. Id., art. 4-C. Id., art. 2, iv. See also Brazil, Federal Law No. 11,284 (Mar. 2, 2006), which instituted the Brazilian Forest Service, among others, art. 54. Serviço Florestal Brasileiro, available at http://www.florestal.gov.br/ (last visited Dec. 16, 2016). Id., art. 4.

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chapter 14 Secretary of Biodiversity and Forests

Ministry of Environment (mma)

Brazilian Forest Service (sfb)

ibama

ICMBio

Figure 8 Hierarchy of selected forest ­management government institutions in Brazil.59

through a concession of use through sustainable development projects, extractive projects, or others.60 The sfb is also responsible for managing the National Fund for the Development of Forests (fndf),61 which fosters the development of forest-based sustainable activities and promotes innovation in the sector, and the National Register of Public Forests, which sets up a database of georeferenced data for the ­identification of public forests. It is, in this sense, the commercial body, dealing exclusively with the forestry business itself. The Instituto Chico Mendes de Conservação da Biodiversidade (ICMBio) is responsible for creating, implementing, managing, protecting, overseeing and monitoring the federal protected areas, called ­conservation units.62 At the federal level, the ibama has the general mission to protect the environment, ensure the sustainability of natural resources, and promote ­environmental quality.63 Among other things, it implements and coordinates the National Forest Program. Figure 8 presents a graphic overview of highlighted government agencies that regulate Brazilian forests. 59 60 61 62 63

59 60 61 62 63

Id., art. 6. In the original: Fundo Nacional de Desenvolvimento de Florestas. Brazil, Federal Decree No. 6,101 (Apr. 26, 2007), art. 2, v, a, 3. See Federal Law No. 11,516 (Aug. 28, 2007). Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis, Federal ­Decree No. 6,101 (Apr. 26, 2007), art. 2, v, a, 2.

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Within the structure of the Ministry of Environment, three specific bodies directly promote policies related to the Amazon rainforest. There is a specific collegiate body to articulate policies for the Amazon (CONAMAZ),64 a secretariat of climate change and forests,65 and a department of forests and combating deforestation.66 The department of forests and fighting deforestation provides technical support to the Amazon Fund. The Amazon Fund aims to attract donations for non-refundable investments in deforestation prevention, monitoring and combat, and to promote the conservation and sustainable use of forests in the Amazon Biome.67 It is managed by the Brazilian Development Bank (bndes) and the funds come from donations and net return from cash investments. The Amazon Fund is used to support management of public forests and protected areas; environmental control, monitoring and inspection; sustainable forest management; economic activities created with sustainable use of forests; ecological and economic zoning, territorial arrangement and agricultural regulation; preservation and sustainable use of biodiversity; and recovery of deforested areas. In addition, it can support the development of systems to monitor and control ­deforestation in the Amazon Biome, in Brazil and other tropical countries.68 The National Colonization and Agrarian Reform Institute (incra)69 and the Indian National Foundation (funai)70 also have responsibilities related to forest resources. funai is the federal body that coordinates and executes indigenous policies in Brazil. As such, it identifies, establishes, monitors and oversees indigenous lands.71 incra, on the other hand, oversees the agrarian reform, maintains the registry of rural lands, and administers public federal lands.72 64 65 66 67 68 69 70 71 72

64

65 66 67 68 69 70 71 72

Brazil, Federal Decree No. 8,975 (Jan. 24, 2017), which approved the internal regiment of the Environmental Ministry, Appendix, art. 2, II, e, 3. See also Federal Decree No. 1,541 (Jun. 27, 1995). In the original: Conselho Nacional da Amazônia Legal. Brazil, Federal Decree No. 8,975 (Jan. 24, 2017), Annex, art. 13. Brazil, Decree No. 8,975 (Jan. 24, 2017), Annex, art. 15. Brazil, Federal Decree No. 6,527 (Aug. 1, 2008). Amazon Fund, Purposes and Management, available at http://www.amazonfund.gov.br/ FundoAmazonia/fam/site_en/Esquerdo/Fundo/ (last visited Apr. 15, 2014). In the original: Instituto Nacional de Colonização e Reforma Agrária (incra). In the original: Fundação Nacional do Índio (funai). Brazil, Federal Law No. 5,371 (Dec. 5, 1967). Brazil, Federal Decree No. 1,110 (Jul. 9, 1970).

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Colombia The Ministry of the Environment and Sustainable Development73 is in charge of the management of the environment and renewable natural resources.74 It is responsible for guiding and regulating the environmental planning of Colombia’s territory, and defining policies and regulations to which the recovery, conservation, protection, organization, management, exploitation and ­sustainable use of renewable natural resources and the e­ nvironment shall be subject to. Its main purpose is to ensure sustainable development, w ­ ithout jeopardizing functions assigned to other government sectors.75 As such, they formulate the national policy for the environment and natural resources, ensuring the fulfillment of the constitutional right to the environment. The Ministry oversees the National Environmental System (sina), which adopts and executes policies, programs and projects with respect to the ­environment.76 In addition, the Ministry is responsible for establishing the areas that make up the National Parks System.77 The Directorship of Forests, ­Biodiversity and Ecosystem Services is responsible for proposing policies and strategies for the creation of forest reserves, and buffer zones, and protecting fauna and flora.78

Ministry of the Environment and Sustainable Development

Figure 9

Office of the Vice Minister

Directorship of Forests, Biodiversity and Ecosystem Services

National Natural Parks of Colombia (pnn)

National System of Protected Areas (sinap)

Hierarchy of selected forest management government institutions in Colombia.79

73 74 75 76 77 78 79

73

74 75 76 77 78 79

Ministerio de Ambiente y Desarrollo Sostenible, Organograma, available at http://www​ .minambiente.gov.co/contenido/contenido.aspx?catID=463&conID=1077 (last visited Mar. 15, 2014). See Ministerio de Ambiente y Desarrollo Sostenible, available at https://www .minambiente.gov.co/# (last visited Apr. 24, 2016). Colombia, Decree No. 3570 (2011), art. 1. Colombia, Law No. 99 (1993), Sistema Nacional Ambiental (SINA). Colombia, Law No. 99 (1993), art. 31. Colombia, Law No. 5856 (1962). See Parques Nacionales Naturales de Colombia, available at http://www.parquesnacionales.gov.co/portal/en/ (last visited Apr. 4, 2016).

Stakeholders in Amazonia

531

The Special Administrative Unit of the Network of National Natural Parks of Colombia (pnn)80 is the national agency that manages parks and protected areas.81 Within the structure of the Ministry of Environment, the entity is in charge of the administration and management of the National System of ­Protected Areas (sinap). It is a department responsible for the conservation and sustainable use of biological diversity. Figure 9 presents a graphic overview of highlighted government agencies that regulate Colombian forests. In addition to the agencies previously mentioned, other decentralized ­bodies are worth mentioning. Within the structure of the Ministry of ­Environment, five agencies were created to provide for technical and scientific support. Among them, the Amazonian Institute for Scientific Investigation (Sinchi).82 Ecuador In Ecuador, the Ministry of Environment regulates environmental management.83 As head of the environmental regulatory system, the ministry has three primary responsibilities: assume the role of national authority in ­environmental policy; coordinate, unify, execute and supervise policies, programs  and  projects; and unify the current laws.84 The Ministry has four sub-­secretariats, including the Sub-Secretariat of Natural Heritage, which includes the Directorship of National Forest and the Directorship of National Biodiversity. The management of forest policies and heritage are incumbent upon the Ministry of Environment.85 A centralized structure was established, in which the Ministry creates and administers forest and wildlife areas, ensures conservation and rational use of forest resources, promotes policies and plans regarding forests, administers renewable natural resources, establishes forest bodies within the state, and promotes a coordinated action with other governmental entities, among other attributions.86 80 81 82 83 84 85 86

80 81

Colombia, Law No. 489 (1998), art. 67. Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. 82 Instituto SINCHI, http://www.sinchi.isometri.co. 83 Ministério del Medio Ambiente, www.ambiente.gob.ec (last visited Jan. 7, 2017). 84 Ecuador, Executive Decree no. 195-A (Oct. 4, 1996), art. 2. 85 Ecuador, Law No. 74 (Ley Forestal y de Conservación de Áreas Naturales y de Vida Silvestre) (Aug. 24, 1981), art. 4. 86 Ecuador, Law No. 74 (Aug. 24, 1981), art. 5.

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chapter 14 Sub-Secretariat of Natural Heritage Ministry of Environment

Directorship of National Forest Directorship of National Biodiversity

Unity of Protected Areas and Fragile Ecosystems

Figure 10 Hierarchy of selected forest management government institutions in Ecuador.87

The management of protected areas falls under the mandate of the Directorship of National Biodiversity, and specifically within the Unit of Protected Areas and Fragile Ecosystems.88 The Sub-Secretariat of Natural Heritage is responsible for the management of preservation and the maintenance of biodiversity, protected areas, wildlife, biosecurity and access to genetic and forest resources.89 The Directorship of National Biodiversity oversees and coordinates the Strategic Plan for the System of Protected Areas, called snap.90 The Unity of Protected Areas and Fragile Ecosystems is directly responsible for the management of protected areas.91 Figure 10 presents a graphic overview of highlighted government agencies that regulate Ecuadorian forests. Guyana In Guyana, environmental protection and environmental management was traditionally under the auspices of the Ministry of Natural Resources and the Environment.92 Established in 2012, the Ministry was responsible for the development and implementation of policies in mining, forestry, land 87 88 89 90 91 92

87

88 89 90 91 92

Karin Columba Zárate, Manual para la Gestión Operativa de las Áreas Protegidas de Ecuador, Ministerio del Ambiente at 61, (2013), available at http://www.ambiente.gob.ec/ wp-content/uploads/downloads/2014/02/04-Manual-para-la-Gesti%C3%B3n-Operativade-las-%C3%81reas-Protegidas-de-Ecuador.pdf. Ecuador, Ministerial Accord No. 025 (Mar. 15, 2012), at 13. Ecuador, Ministerial Accord No. 025 (Mar. 15, 2012), at 14. Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. Ecuador, Ministerial Accord No. 025 (Mar. 15, 2012) at 16. Ministry of Natural Resources (Guyana), available at http://www.nre.gov.gy. ­

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­administration and environmental sectors. However, due to a need to separate biodiversity protection and management from the extractive industries, a new environmental government agency was announced at the end of 2016.93 The ­Department of Environment (DoE), which falls under the Ministry of the Presidency, will oversee the activities of environmental compliance and ­management, protected areas development and management, national parks management and wildlife conservation and protection. It will be directly responsible for oversight to the Environmental Protection Agency (epa), ­Protected Areas Commission/National Parks Commission, agencies that previously fell under the aegis of the Ministry of Natural Resources. Guyana is in the process of merging the Protected Areas Commission (pac), created in 2011, and the National Parks Commission (npc). The npc, created in 1977, was responsible for the maintenance of public parks, including the Kaieteur National Park.94 However, the 2011 Protected Areas Act repealed much of the provisions of npc, transferring several competencies to the pac.95 Guyana’s epa96 oversees the effective management, conservation, protection and improvement of the environment. It is responsible for taking all necessary measures to ensure the prevention and control of pollution, assessment of the impact of economic development on the environment and the sustainable use of natural resources. The epa reviews plans and programs, and formulates recommendations for the Cabinet about the management of renewable natural resources with the objective of avoiding further resource degradation. Such plans and programs include, but are not limited to forestry policies for sustainable harvesting of timber and programs for designating and managing protected areas and habitats.97 93 94 95 96 97

93

94 95

96

97

Guyana, Government Information Agency, New Department of Environment to push Guyana’s ‘Green Agenda’ (Sep. 30, 2016), available at http://gina.gov.gy/new-department -of-environment-to-push-guyanas-green-agenda/. Guyana, National Parks Commission Act 1977. Terms of Reference, Merging Protected Areas Commission (pac) & National Parks Commission (npc), Available at http://nre.gov.gy/wp-content/uploads/2016/05/ToR-MergingPAC-NPC.pdf. Environment Protection Agency, Ministry of Natural Resources (Guyana), available at http://nre.gov.gy/category/environment-protection-agency/. See also About Us, Environmental Protection Agency Guyana, available at http://www.epaguyana.org/index.php/ aboutus. Chapter 18: Environmental Policy, National Development Strategy, Ministry of Finance, (draft April 18, 1996), available at http://www.guyana.org/NDS/chap18.htm.

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chapter 14 Environmental Protection Agency Department of Environment

Ministry of Environment and Natural Resources

Protected Areas Commission/National Parks Commission

Forestry Commission

Figure 11 Hierarchy of selected forest management government institutions in Guyana.98

The Guyana Natural Resources Agency (gnra), which is charged with d­ eveloping natural resources, remains under the auspices of the Ministry of Environment. It has supervisory jurisdiction over the Guyana Forestry Commission (gfc), along with other natural resource agencies. The GFC99 is ­responsible for advising the Minister on issues relating to forest policy, forestry laws and regulations. The Commission is also responsible for the administration and management of all State Forest land. The work of the Commission is guided by a Draft National Forest Plan. The Commission develops and m ­ onitors standards for forest sector operations, develops and implements forest ­protection and conservation strategies, oversees forest research and provides support and guidance to forest education and training. The gfc is governed by a board of directors appointed by the President. The board is r­ esponsible for the performance of the functions conferred on the C ­ ommission by the Act. Figure 11 presents a graphic overview of highlighted government agencies that regulate forests in Guyana. Peru In Peru, the Ministry of Environment (minam) promotes environmental sustainability, protecting, recovering, and ensuring environmental conditions, the ecosystems and natural resources.100 Under the Vice-Ministry of Strategic 98 99 100

98 99

About Us, Guyana Forestry Commission, available at http://www.forestry.gov.gy. Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. 100 Misión y Visión, Ministerio del Ambiente (Peru), available at http://www.minam.gob .pe/?el-ministerio=mision-y-vision.

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Vice-Ministry of Strategic Development of Natural Resources Ministry of Environment

sernanp

Directorate General of Biological Diversity General Directorate of Climate Change, Desertification and Water Resources

iiap

Figure 12 Hierarchy of selected forest management government institutions in Peru.101

­ evelopment of Natural Resources, several agencies deal with forests, such D as the General Directorate of Biological D ­ iversity, the General D ­ irectorate of ­Climate Change, Desertification and Water Resources, and the National ­Program for the Conservation of Forests for Climate Change Mitigation. ­Finally, the National Service of Protected Areas (Sernanp) creates, manages and oversees protected areas in Peru.102 New projects used to be approved through an environmental impact assessment by the ministries of the respective industries, such as the Ministry of Energy and Mines (mem).103 The approval now falls under the auspices of the MINAM. The change of responsibility was due to complaints of conflicts of interests, since the ministry of the sector was responsible for promoting the economic activities and, at the same time, granting the environmental ­certification. As of December 28, 2015, the senace shall be the entity in charge of assessing the EIA-d.104 Figure 12 presents a graphic overview of highlighted government agencies that regulate Peruvian forests. 101 102 103 104

101 Organigrama y Funcionarios, Ministerio del Ambiente (Peru), available at http://www .minam.gob.pe/?el-ministerio=organigrama-equipo-funcionarios. 102 Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. 103 Peru, Act No. 29968. 104 Peru, Ministerial Resolution 328-2015-minam.

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Suriname Institutional responsibilities for environmental management and nature resource conservation are shared by a number of governmental organizations in Suriname. Generally, environmental protection falls under the purview of the Ministry of Labor, Technological Development and Environment (atm). The Directorate for Environment within the atm is responsible for the development of an overall environmental policy and the coordination and monitoring of all activities regarding these policies, including the implementation of the major environmental conventions. This is done in collaboration with government and non-government bodies and institutions. The institutional framework for the management of Suriname’s environment is based on three operational entities utilizing cross-sectoral c­ oordinating mechanisms: the Nationale Milieuraad (National Council for the Environment, or nmr); the Nationaal Instituut voor Milieu en Ontwikkeling in Suriname (nimos); and other ministries dealing with environment and development, through the Inter-Ministerial Advisory Commission (imac). The nmr105 is a policy advisory body in Suriname at the highest possible level, the Office of the President of Suriname. The nmr has the mandate to support Suriname by means of advises concerning the preparation of ­environmental policy at the national level and serves as an advisory body for the Ministry of atm. In addition, the nmr assists in the implementation of policies. The nimos is the executive and research arm of the Council. As the implementation and research institute, it functions as the technical arm of the Ministry of atm. The mission of nimos is to initiate the development of a national legal and institutional framework for environment policy and management in the interest of sustainable development. As the executing agency of the nmr, nimos has the specific goals to realize national environmental legislation; prepare and realize regulations with regard to protection of the environment; coordinate and supervise the observance of those regulations.106 Responsibility for natural resource exploitation and management rests with the Ministry of Natural Resources (Ministerie van Natuurlijke Hulpbronnen – nh). Within the nh, the Suriname Forest Service (Dienst’s Lands Bosbeheer) 105 106

105 Suriname, Presidential Order on June 9th 1997. 106 Nationaal Instituut Voor Milieu & Ontwikkeling in Suriname National Institute for Environment and Development in Suriname, available at pdba.georgetown.edu/Misc/ Groups/Suriname/NIMOS.doc.

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and specifically the Nature Conservation Division (Afdeling Natuurbeheer) of the Forest Service, is the agency responsible for managing natural reserves and parks, except for the Brownsberg Nature Park, which is held in leasehold and managed by the Foundation for Nature Conservation in Suriname (Stichting Natuurbehoud Suriname – stinasu). To further strengthen forest monitoring, capacity building is promoted by the Foundation for Forest Management and Production Control (sbb). sbb is the institution in Suriname responsible for the sustainable utilization of the production forest.107 In addition, a number of agencies and departments in sectoral ministries hold responsibilities in environmental protection, such as enforcing existing environmental regulations and contributing to the Ministry of atm’s environmental planning activities.108 Other governmental institutions have specific environmental management mandates. For example, the Ministry of Physical Planning, Land and Forest Management (rogb) is responsible for formulating the national policy on land use planning, sustainable forest use and nature conservation, and has several sub-divisions responsible for the regulation, implementation, monitoring and

Ministry of Labor, Technological Development and Environment

Ministry of Natural Resources

Directorate for Environment

National Council for the Environment

National Institute for Environment and Development in Suriname

Suriname Forest Service

Nature Conservation Division

Figure 13 Hierarchy of selected forest management government institutions in Suriname.109

107 108 109

107 Global Forest Resources Assessment 2015 – Country Report at 5, available at (fao):http:// www.fao.org/documents/card/en/c/8e0be622-d512-4da7-8e6e-fdc235f70899/. 108 Country Environmental Assessment, Final Report, August 2005, aidb. 109 Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book.

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control. The Ministry of Natural Resources (nh) provides control of the exploitation and management of minerals, water and energy and regulates domestic, public and commercial energy use. Figure 13 presents a graphic overview of highlighted government agencies that regulate forests in Suriname Venezuela In 2014, Venezuela extinguished the Ministry of Environment.110 The Ministry for Popular Power for Eco-Socialism and Waters (minea), created in 2015 as a substitute, is in charge of environmental protection, forest resources, natural resources and biological diversity, among others matters. The new ministry embodies the ideals of eco-socialism advanced by Venezuela’s leader Hugo Chávez. The rhetoric links social and environmental concerns, and places L­ atin America as a pioneer of a revived global socialism with ecological themes. Chávez has often articulated a vision of “eco-socialism of the t­wenty-first

National Company for Reforestation (conare)

Ministry for Popular Power for EcoSocialism and Waters (minea)

National Institute of Parks (inparques)

Latinamerican Forest Institute

National Forest Company

Figure 14 Hierarchy of selected forest management government institutions in Venezuela.111

110 111

110 Oscar Hernández Bernalette, Sin Ministerio del Ambiente in El Nacional (Nov. 8, 2014), available at http://www.el-nacional.com/oscar_hernandez_bernalette/Ministerio-­Ambiente_ 0_514748743.html. 111 O’Toole, supra note 1, at 219–220.

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c­ entury”, ­simplifying the country’s environmental crisis by blaming ­capitalism exclusively.112 Several institutions are under the auspices of the Ministry, including the National Company for Reforestation (conare), the National Institute of Parks (inparques), and the Latinamerican Forest Institute, and National Forest Company.113 14.3

Amazonian Research Institutions

In addition to the government agencies highlighted in the previous section, a few Amazon countries have created specific scientific and technological research institutions for Amazonia.114 Indeed, scientific institutions have played a key role in environmental institution-building.115 The National Institute of Amazonian Research (inpa) was created in 1952 with the goal to undertake scientific studies of the physical medium and the living conditions and human well-being in Brazil’s Legal Amazonia. It is an autonomous research institution under the auspices of the Ministry of Science and Technology. The Amazonian Institute of Scientific Research (sinchi) was created in 1993 as a scientific entity linked to the Colombian Ministry of the Environment, with administrative independence, legal status, its own patrimony. It carries out and disseminates the results of studies and scientific research on the social and ecological biological reality of Colombian Amazonia. The Peruvian Amazon Research Institute (iiap) was created in 1979 as a technical and independent institution to carry out research, evaluate and control the natural resources in Peruvian Amazonia.116 It has legal public right capacity, economic, and administrative autonomy, and is connected to the Executive Branch though the Ministry of Production.

112 113 114 115 116

112 Please note this is not a complete overview of the structure of the Ministry of Environment, but rather depicts the agencies that are relevant for the purpose of this book. 113 Decreto Presidencial 1.701, Gaceta Oficial N° 40.634 del 7 de abril de 2015, available at http://historico.tsj.gob.ve/gaceta/abril/742015/742015-4255.pdf. 114 unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 99 (2009). 115 O’Toole, supra note 1, at 11. 116 art. 120 Constitution of Peru.

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National Institutions Participating in Regional Cooperation

The act stipulates that in order to enforce the treaty at the national level, member parties shall create Permanent National Commissions (pncs).117 These shall apply the treaty in their territories, and execute decisions adopted by other bodies of the acto. While pncs were required since the treaty’s inception, member countries were slow to establish them. Often, these remained inactive. During the fourth and fifth phase of development of the act, pncs were reestablished. At the x mmfa, member countries reactivated pncs, and assigned the Permanent Secretariat with the role of managing international cooperation through them.118 One of the primary suggestions was for countries  to  strengthen pncs, especially by having a staff exclusively dedicated to complying with its agenda. Indeed, one of the main problems in continuity was the constant rotation of staff members, as well as the combined roles they had. pncs have an essential role of providing a platform for sustainable development of the Amazon region. Through the pncs, countries can provide a crosssector conversation between government institutions, and more effectively incorporate the Amazon region in their national territories. In addition, pncs have a strategic role to approximate the acto with the civil societies of each Amazon country.119 In 2014, the acto published a compilation of the national laws that established pncs in each member state, along with a summary of the government institutions that composed it. These are summarized in Table 40, and will be analyzed by country in the following section. Bolivia The Bolivian pnc, entitled Comisión Nacional Permanente de la Amazonía, was created in 1981,120 and adapted in 2004 to comply with the creation of the acto.121 The Commission is presided by the Minister of Foreign Affairs, and,  alternatively, by the Vice-Minister of Economic Relations and Foreign 117 118 119 120 121

117 Treaty for Amazonian Cooperation (Amazon Cooperation Treaty, hereinafter act), 17 ilm, 1045 (July 3, 1978). Brazil, Federal Decree No. 85050 (Aug. 18, 1980), art. xxiii. 118 act, RES/X MRE-OTCA/6. 119 acto, Comisiones Nacionales Permanentes del Tratado de Cooperación Amazónica 7–8 (2014), available at http://otca.info/portal/admin/_upload/publicacoes/405-Comisiones. Nacionales. Permanentes.pdf. 120 Bolivia, Supreme Decree No. 17996 (Feb. 5, 1981). 121 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004).

2002

2005 1989 / 2011

Brazil

Colombia Ecuador

1992

Venezuela

Missive No. 326/RvM (Apr. 10, 2013) Supreme Decree No. 011-80-RE Supreme Decree No. 097-2010-RE Ministerial Resolution No. 0156/RE (Feb. 21, 2011) (internal regiment) Official Gazette No. 34934 (Mar. 31, 1992)

122 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 5. 123 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 3 altered by Supreme Decree No. 1587 (May 22, 2013).

122 123

1980 / 2010

Suriname Peru

Guyana

1981 / 2004

Bolivia

Supreme Decree No. 27904 (Dec. 13, 2004), Altered by Supreme Decree No. 1587 (May 22, 2013). Federal Decree (Not numbered, Nov. 8, 2002), published in Diário Oficial da União, Section i, 10 (Nov. 11, 2002) Decree No. 3479 (Sep. 30, 2005). Executive Decree No. 730 (Apr. 11, 2011) Ministerial Agreement No. 0000121 (2011) (internal regiment) No Information

Date created Current law

Summary of pncs122

Country

Table 40

Yes123

Yes (Environmental Protection Agency) No (Min. Natural Resources) Yes

Yes Yes

Yes

Yes

Ministry of environment?

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Trade.124 It is composed by the Vice-Ministries from the Ministries of Foreign Relations; Presidency; National Defense; Planning of Development; Environment and Water.125 The members of the Commission are chosen by the holder of each of the Ministries, and can have technical support of directors and other staff members.126 Representatives of other administrative bodies, academic community, non-governmental organizations, private sector companies or members of the civil society can be invited to attend meetings or to integrate thematic groups.127 The main goal of the Commission is to coordinate and articulate the policies, programs and projects for the sustainable development of the Bolivian Amazon.128 It is incumbent upon the Commission to ensure the national application of the decisions adopted within the acto’s framework, articulate policies within the several governmental bodies, establish mechanisms to interrelate the Amazon Basin and the regional integration process of South America, globally analyze the Bolivian Amazon Basin and the relation with other basins, as well as other attributions necessary to fulfill its institutional mission.129 An executive secretariat was created as a permanent and executive body to the Commission, following the suggestion by the mmfa to embody the pncs with permanent staff members.130 The executive secretariat also had the specific mandate to develop the international rules of the Commission.131 124 125 126 127 128 129 130 131

124 For a compilation of the national laws related to the pncs, please see acto, Comisiones Nacionales Permanentes del Tratado de Cooperación Amazónica (2014), available at http://otca.info/portal/admin/_upload/publicacoes/405-Comisiones.Nacionales.Permanentes.pdf. Please note that the composition of the PNCs is defined by the laws that created them, and have not necessarily been updated to reflect current ministries and cabinets. 125 Please note that the Ministry of Environment was extinguished in 2015, with consequences for the composition of the pnc in Venezuela. However, the country is still in the transition period, and not all legislation has been properly updated. 126 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 6. 127 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 13. 128 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 2, i. 129 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 4. 130 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 2, ii; 8; 9; 10. 131 Bolivia, Supreme Decree No. 27904 (Dec. 13, 2004), art. 2, iii (with changes from the ­Supreme Decree No. 1587 (May 22, 2013)). While the mandate was established in 2013, no information could be found on the approval of the internal rules.

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Brazil The Brazilian pnc, entitled Comissão Nacional Permanente do Tratado de Cooperação Amazônica, was created in 2002.132 The Commission is presided by the Minister of Foreign Affairs or another diplomat indicated by him.133 It is composed by representatives from the Ministries of Foreign Relations; Environment; Planning, Budget and Management; Science & Technology; Justice; Health; Development, Industry and Foreign Trade; Education; Tourism; Transport; Communications; Defense; and the Chief of Staff of the Presidency. The members of the Commission and their substitutes are chosen by the Minister of Foreign Relations, indicated by the holder of each of the Ministries.134 Representatives of other administrative bodies, academic community, non-­ governmental organizations or private sector companies can be invited to attend meetings or to integrate thematic groups.135 The Commission is structured within the Ministry of Development, Industry and Foreign Trade.136 The Commission’s goals are to coordinate the activities regarding the national application of the treaty, execute decisions adopted by its bodies, aid the Minister of Foreign Relations to undertake decisions regarding Brazil’s position in the meetings, offer subsidies for the Brazilian participation in the technical meetings and special commissions, and establish a dialogue with the institutions and national entities that can contribute to it.137 The Commission had the specific mandate of establishing its internal regulation, as well as to publish regular reports of its activities.138 Colombia The Colombian pnc, entitled Comisión Nacional Permanente, was created in 2005.139 The Commission is presided by the Minister of Foreign Affairs. It is composed by the Minister of Interior and Justice; the Minister of National ­Defense; the Minister of Social Protection; the Minister of Commerce, ­Industry 132 133 134 135 136 137 138 139

132 Brazil, Federal Decree (Not numbered, Nov. 8, 2002), published in Diário Oficial da União, Section i, 10 (Nov. 11, 2002). 133 Id., art. 3. 134 Id., art. 3, §1. 135 Id., art. 3, §2. 136 See mdic, Comissão Permanente do Tratado de Cooperação Amazônica, available at http://www.mdic.gov.br/sitio/interna/interna.php?area=1&menu=797&refr=482 (last visited Apr. 4, 2014). 137 Id., art. 2. 138 Id., art. 4; art. 5. No internal regulation or regular reports of activities could be found. 139 Colombia, Decree No. 3479 (Sep. 30, 2005).

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and Tourism; the Minister of National Education; the Minister of Environment, Housing and Territorial Development; and the Minister of Transport. In addition to specific ministries, Colombia’s pnc also includes the Director of the ­National Planning Department, and the Director of the Colombian Institute for the Development of Science and Technology (Colciencias).140 Members of the Commission may act directly or through delegates, who shall represent the highest level within the respective entities.141 Indigenous communities based within Amazonia are permanent invitees of the Commission’s meetings.142 The Commission’s goal is to coordinate activities relevant to the application of the Treaty, coordinate the implementation of decisions adopted by the acto, identify a thematic agenda for the region, propose policies to guide different sectors in the region, especially in terms of investments, assist the national government in decisions related to the treaty, establish links with institutions and entities relevant to its scope, and invite relevant stakeholders to participate in meetings or integrate thematic groups.143 Ecuador Ecuador created the Comisión Ecuatoriana Permanente de Cooperación Amazónica (cepca) in 1982.144 A new regulation was passed in 2011,145 determining the composition of cepca: the Ministry of Foreign Affairs, Trade and Integration, who presides the Committee, the Ministry of National D ­ efense, the Ministry of National Planning, the Ministry of Environment, the Secretary of Planning and Development (senplades), the Executive Secretary for EcoDevelopment, and the Institute for the Ecodevelopment of the E ­ cuadorian Amazon Region (ecorae), which acts as Secretariat of the ­c epca. Ecuador is the only country with a specific institutional body for Amazonia as a ­participating entity of the pncs. The Commission can create subcommissions, either permanent or temporary, as needed.146 Ecuador published the internal rules of the Commission in 2011. It established specific roles of the secretariat and the presidency of the cepca, as well as the frequency of sessions, and the necessary quorum of decisions.147 The Commission’s goals are to promote interagency c­ oordination 140 141 142 143 144 145 146 147

140 141 142 143 144 145 146 147

Colombia, Decree No. 3479 (Sep. 30, 2005), art. 3. Colombia, Decree No. 3479 (Sep. 30, 2005), art. 4. Colombia, Decree No. 3479 (Sep. 30, 2005), art. 2. Colombia, Decree No. 3479 (Sep. 30, 2005), art. 2. Ecuador, Executive Decree No. 539 (Jan. 12, 1982). Ecuador, Executive Decree No. 730 (Apr. 11, 2011). Ecuador, Executive Decree No. 539 (Jan. 12, 1982), art. 3. Ecuador, Ministerial Agreement No. 0000121 (Dec. 30, 2011), art. 7; 8; 9; 10.

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for the development of the Amazon Cooperation Policy; to consider the plans, programs and projects to be presented to the acto for the respective management; to follow up on acto’s progress of programs and projects; to propose policies for better integration in the process of Amazon cooperation; to ­implement the acc’s decisions and resolutions; to adopt decisions to the conclusion of agreements and operational understandings between Member Countries; and to promote interagency coordination to implement policies Amazonian Cooperation.148 Guyana A wide range of ministries and government agencies compose Guyana’s Permanent National Commission of the acto. In addition to the Office of the President, several ministries are involved, namely the Ministry of Health, the Ministry of Agriculture, the Ministry of Foreign Affairs, the Ministry of Amerindian Affairs, the Ministry of Tourism, Industry and Commerce, the Ministry of Education, the Ministry of Public Works, the Ministry of Culture, Youth & Sport, the Ministry of Local Government and Regional Development, and the Ministry of Housing and Water. Guyana is the only Amazon country that specifically determines the participation of environmental government agencies. Other specific government agencies involved with the pnc include the Guyana Defense Force, the Guyana Energy Agency, the Environmental Protection Agency, the Guyana Forestry Commission, the Guyana Geology and Mines Commission, and the Guyana Lands and Surveys Commission. Finally, Guyana specifically included the country’s main environmental ngo for rainforest protection, as well as academic institutions as relevant stakeholders in the cooperation process. Indeed, the Iwokrama International Centre for Rainforest Conservation and Development (iic),149 the Institute of Applied Science and Technology and the University of Guyana are also participating members of the commission.150 However, it should be noted that there is no specific law or regulation for Guyana’s pnc.151 In this sense, it is unclear whether the list of participating 148 149 150 151

148 Ecuador, Ministerial Agreement No. 0000121 (2011), art. 6. 149 Welcome to the Iwokrama International Centre for Rainforest Conservation and Development (iic), Iwokrama the Green Heart of Guyana, available at http://iwokrama.org/. 150 acto (2014), supra note 123, at 35. 151 The compilation provided by the acto only includes the list of participating entities, without any reference to the laws and regulations established by the country.

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stakeholders establishes a mandatory or suggested participation, or which role these have within the commission. Peru Peru’s pnc is entitled the Comisión Nacional Permanente Peruana de la Organización del Tratado de Cooperación Amazónica (cnpp/otca). It was created in 1980,152 1997,153 and reestablished in 2010. The cnpp/otca is the highest national body to promote counseling and coordination of policies and programs aimed at achieving the sustainable development of the Amazon Peruvian within the act/acto’s framework.154 It is a platform for dialogue and coordination of policies to promote the sustainable development of the Peruvian Amazon, and implement the policies mandated by the acto.155 The cnpp/otca had a specific mandate to approve its internal regulation in a 90day period.156 While the 90-day period wasn’t complied with, Peru approved the internal regulation in 2011.157 The cnpp/otca is presided by the Ministry of Foreign Affairs, and functions within its structure. It is comprised by 30 ministries and institutions. It includes participation by the Ministry of Defense, the Ministry of Economy and Finance, the Ministry of Education, the Ministry of Health, the Ministry of Agriculture, the Ministry of Production, the Ministry of Foreign Trade and Tourism, the Ministry of Transport and Communications, the Ministry of Housing, Construction and Sanitation, the Ministry of Women and Social Development, and the Ministry of the Environment. Peru also invited participation by several government agencies, namely the Agency for the Promotion of Private Investment in Peru (proinversion), the Promotion Commission of Peru (promperu), the Peruvian Agency for International Cooperation (apci), the National Council of Science, Technology and Technological Innovation (concytec), the National Water Authority (ana), the National Service of Protected Natural Areas (sernanp), the Environmental Assessment and Control Agency (oefa).158 Peru is the only Amazon 152 153 154 155 156 157 158

152 Peru, Supreme Decree No. 011-80-RE (Sep. 19, 1997). 153 Peru, Supreme Decree No. 028-97-RE (Sep. 19, 1997). 154 Peru, Reglamento de la Comisión Nacional Permanente Peruana de la Organización del Tratado de Cooperación Amazónica (cnpp/otca), art. 2 (approved by the Peru, Resolución Ministerial No. 0156/RE (Feb. 21, 2011)) (hereinafter Peru, Internal Regulation cnpp/otca). 155 Id., art. 4. 156 Peru, Supreme Decree No. 097-2010-RE, art. 4. 157 Peru, Resolución Ministerial No. 0156/RE (Feb. 21, 2011). 158 Peru, Supreme Decree No. 097-2010-RE (Jul. 7, 2010), art. 2.

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country to specifically include a government body in charge of protected areas among the participating members of the pnc. In addition, the Research Institute of the Peruvian Amazon (iiap), the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (indepa), the National Institute of Health, the Center for Strategic Planning (ceplan) are participating agencies. The iiap acts as the technical secretariat of the cnpp/otca.159 Peru also innovated by including representatives from state and municipal levels namely the Amazon Interregional Council (ciam), representing the Regional Governments of Amazonas, Loreto, San Martín, Ucayali and Madre de Dios, and the Association of Municipalities of Peru (ampe). ­Finally, the Peruvian Amazonian Universities, whose representation will fall in the one that exercises the national representation before the Network of Amazonian Universities (unamaz), was also invited to participate.160 Each member has the specific role of representing their respective sectors and/or institutions within the cnpp/otca, and coordinate within their sectors and/or institutions the work mandated within the commission. They shall ­participate in sessions, vote accordingly, and collaborate in establishing opinions and national positions of the commission.161 Ordinary sessions shall be held at least three times a year, and extraordinary sessions can be r­ equested by the participating members.162 Working groups can be created to conduct specific tasks, as determined by the presidency of the commission.163 Suriname Suriname established a new pnc in 2013.164 It is comprised by the Ministry of Foreign Affairs, with one representative as chair and another as member and secretary. In addition, representatives of the Ministry of Labor, Technological Development and Environment, the Ministry of Natural Resources, the Ministry of Transport, Communication and Tourism, the Ministry of Education and Community Development, the Ministry of Regional Development, the  Ministry of Health, the Ministry of Justice and Police, the Ministry of Finance, the Ministry of Social Affairs and Public Housing, the Ministry of 159 160 161 162 163 164

159 160 161 162 163 164

Peru, Supreme Decree No. 097-2010-RE, art. 3. Peru, Supreme Decree No. 097-2010-RE, art. 2. Peru, Internal Regulation cnpp/otca, art. 8. Peru, Internal Regulation cnpp/otca, arts. 14; 15. Peru, Internal Regulation cnpp/otca, art. 11. Suriname, The Council of Ministers, Missive No. 326/RvM (Apr. 10, 2013).

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­ griculture, Animal Husbandry and Fisheries were included as members of A the pnc. Venezuela Venezuela’s pnc, entitled the Comisión Nacional Permanente del Tratado de Cooperación Amazónica (conaper), was created in 1992.165 It is structured within the Office of Multilateral Issues and Integration of the Ministry of Power for External Relations. It is composed by the Ministries of Popular Power for the Environment; Science, Technology and Innovation; Commerce; Defense; Higher Education; Oil and Mining; Planning and Development; Indigenous Groups; External Relations; Internal Relations, Justice and Peace; Health, Tourism; Housing and Habitat. In addition, the Secretariat of Defense of the Nation participates as a member of conaper.166 14.5

Participation of Third Parties and the Role of Multiple Stakeholders

When implementing projects, the acto invites the participation of multiple stakeholders from both international institutions and local civil society, especially as project partners and sponsors. In addition, the Permanent Secretariat encourages the active participation of regional and local players, especially indigenous people, in developing Amazon cooperation initiatives.167 The acto hence actively seeks lasting ties with multinational organizations, such as the World Health Organization, United Nations Educational, Scientific and Cultural Organization, the World Bank, the Inter-American D ­ evelopment Bank, the European Union, the International Union Conservation of Nature (iucn) and the national cooperation agencies of many countries. The acto has also worked with international non-governmental organizations, such as the World Wildlife Fund (wwf). Since the establishment of the Permanent Secretariat, the acto has worked to reinvigorate the treaty’s structure and strengthen its relationships with un organizations and other specialized agencies. Since the Member States each have their own national policies on international cooperation in the Amazon region, the Permanent Secretariat has made a push for increased coordination with national governments on this 165 166 167

165 Venezuela, Gaceta Oficial No. 34.934 (Mar. 31, 1992). 166 acto (2014), supra note 123, at 55. 167 See 2004–2012 Strategic Plan, Chapter 8.

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Regional Organization

Amazon Countries Involved

oas

Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname, Venezuela Bolivia, Colombia, Ecuador, and Peru Associate countries: Brazil Guyana, Suriname Full members: Brazil, Venezuela (membership suspended on December 1, 2016) Associate countries: Bolivia, Peru, Colombia, Ecuador, Suriname

can CARICOM MERCOSUR

front in order to avoid conflicts and duplicate efforts. As a consequence, new guidelines for international cooperation were established for agreements with third parties.168 Regional and Subregional Organizations In addition to the act, some Amazon States are members of other regional or subregional organizations. These include the Organization of American States (oas),169 the Andean Community (can), the Caribbean Community (Caricom),170 and the Common Market of the South (MERCOSUR). These organizations developed normative and institutional frameworks, laws on different aspects of environmental protection, including climate change and forests. While these do not necessarily involve all Amazon countries, they are part of the legal system of the Amazon.171 The Inter-American Development Bank (idb)172 is the main source of multilateral financing for socioeconomic development projects in Latin America and the Caribbean. Investments are broad, and include initiatives in the environment. Issues such as sustainable energy and climate change, and water management are among the idb’s priority areas. idb lends money and provides grants. The loans cover part of the total cost of the projects, and the borrowing countries supply the majority of the balance. 168 169 170 171 172

168 RES/X MRE-OTCA/7, approved in the x mmfa, held in Peru, Lima, on Nov. 30, 2010. 169 119 unts 3, entered into force on December 13, 1951. http://www.oas.org/en/. 170 Caricom Caribbean Community, available at http://www.caricom.org/. 171 Beatriz Garcia, The Amazon from an international law perspective 127 (2011). 172 Agreement Establishing the Inter-American Development Bank, Sec. 1, 426 unts 1986.

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The Andean Development Cooperation (caf) is a multilateral financial institution that enhances subregional integration by allocating investments in favor of less developed countries in the subregion, providing technical and financial assistance for the implementation of multilateral projects, and granting loans. It comprises several Latin American countries as well as private banks, and is a major source of multilateral financing in the Andean region.173 Finally, national stakeholders such as nongovernmental organizations (ngos), and indigenous communities play a prominent role in Amazonia. While beyond the scope of this book, indigenous communities hold ancestral knowledge about the environment, a powerful tool towards promoting protective policies. Indigenous lands often act as a barrier to deforestation in the Brazilian Amazon.174 Indigenous communities in Amazonia have gathered under a regional institution, the Coordinator of Indigenous Organizations of the Amazon Basin. However, participation of ngos and indigenous communities at the act/acto is still restricted. While ngos can be granted observer status, the same cannot be said to indigenous communities.175 14.6 Conclusion Institutions are essential for managing the relationship between national and international bodies working towards environmental sustainability. Indeed, the role of governments is critical to protecting the environment by setting out policy and regulatory frameworks, and providing the planning and monitoring of compliance with standards and norms.176 Institutions help shape the norms and attitudes that characterize the prevailing cultural in a country. Indeed, effective environmental policies depend on sound environmental institutions. One of the main roles of institutions is balancing interests. Effective institutions should balance interests fairly and efficiently as policies are formulated, providing mechanisms to ensure that perspectives and incentives from different stakeholders are taken into account, and coordinating views across sectors and tiers of government.177 However, most Amazon countries have a variety 173 174 175 176 177

173 Beatriz Garcia, supra note 175, at 148. 174 Id., at 128. 175 See article 6, mmfa Regulation, and Article 8, acc Regulation. The list does not include indigenous communities. 176 O’Toole, supra note 1, at 5. 177 Id., at 8.

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of government institutions in charge of forests, each with their own agenda in place. The vast variety of government agencies often hinders proper coordination of policies. Indeed, their mandates are not always clear, and often overlap. Amazonian environmental institutions are managed independently in each country. While some efforts are carried out jointly in terms of programs and projects, there is still no common vision for Amazonia.178 The balance between environmental protection and economic development is a constant challenge. Sustainable development means that democratic institutions need to change their traditional focus on economic growth, replacing the traditional notion of economic security with a notion of the common good.179 The Amazon rainforest embodies this need for change. In addition, the development of environmental governance defies the traditional notions of a top-down or bottom-up process. Solutions to environmental problems derive both from international pressures external to national states, and from civil society below them. Indeed, ngos have often ignited change, or taken over when there is a regional gap, as was observed in the recent development of the regional agenda on protected areas. Finally, initiatives at the regional and sub-regional levels are pushing forward regional integration initiatives. Some have established their own environmental institutions, such as the acto. However, it is essential that these are given legitimate power to induce real change. Government structures often change, and rely on the political climate to effectively promote a specific agenda. Through a multitude of partners, however, there is a greater assurance that the environmental agenda is properly advanced, and that incentives are in place to guarantee conservation of the ecosystem in Amazonia. Only through a broad range of actors and policies can Amazonia be truly protected.

178 179

178 unep, acto and ciup, Geo Amazonia: Environmental Outlook in Amazonia 56 (2009). 179 O’Toole, supra note 1, at 9.

“Realmente, a Amazônia é a última página, ainda a escrever-se, do Genesis.” (Truly, Amazonia is the final page, still being written, of the Genesis.) —Euclides da Cunha, Preambulo (10)

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Appendices

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appendix 1

Amazon Cooperation Treaty The Republics of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela, CONSCIOUS of the importance to each one of the Parties of their respective Amazonian regions as an integral part of their respective territories, INSPIRED by common aim of pooling the efforts being made, both within their respective territories as well as among themselves, to promote the harmonious development of the Amazonian region, to among the Contracting Parties so as to raise the standard of living of their peoples and so as to achieve total incorporation of their Amazonian territories into their respective national economies, CONSCIOUS of the usefulness of sharing national experiences in matters pertaining to the promotion of regional development, CONSIDERING that, so as to achieve overall development of their respective Amazonian territories, it is necessary to maintain a balance between economic growth and conservation of the environment, CONCIOUS that both socio-economic development as well as conservation of the environment are responsibilities inherent in the sovereignty of each State, and that cooperation among the Contracting Parties shall facilitate fulfillment of these responsibilities, by continuing and expanding the joint efforts being made for ecological conservation of the Amazon region, CONFIDENT that cooperation among the Latin American nations on specific matters which they have in common shall contribute to progress on the road towards the integration and solidarity of all Latin America, CONVICED that this Treaty represents the beginning of a process of cooperation which shall benefit their respective countries and the Amazon region as a whole, RESOLVE to sign the following Treaty: ARTICLE i. The Contracting Parties agree to undertake joint actions and efforts to promote the harmonious development of their respective Amazonian territories in such a way that these joint actions produce equitable and mutually beneficial results and achieve also so preservation of environment, and the conservation and rational utilization of the natural resources of those territories. PARAGRAPH: to this end, they would exchange information and prepare operational agreement and understandings as well as the pertinent legal instruments which permit the aims of the present Treaty to be attained. ARTICLE ii. This Treaty shall be in force in the territories of the Contracting Parties in the Amazonian Basin as well as in any territory of a Contracting Party which, by

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virtue of its geographical, ecological or economic characteristics is considered closely connected with that Basin. ARTICLE iii. In accordance with and without prejudice to the rights granted by unilateral acts, to the provisions of bilateral treaties among the Parties and to the principles and rules of International Law, the Contracting Parties mutually guarantee o a reciprocal basis that there shall be complete freedom of commercial navigation on the Amazon and other international Amazonian rivers, observing the fiscal and police regulations in force now or in the future within the territory of each. Such regulations should, insofar as possible, be uniform and favors said navigation and trade. PARAGRAPH: This article shall not apply to cabotage. ARTICLE iv. The Contracting Parties declare that the exclusive use and utilization of natural resources within their respective territories is a right inherent in the sovereignty of each state and that the exercise of this right shall not be subject to any restrictions other than those arising from International Law. ARTICLE v. Taking account of the importance and multiplicity of the functions which the Amazonian rivers have in the process of economic and social development of the region, the Contracting Parties shall make efforts aimed at achieving rational utilization of the hydro resources. ARTICLE vi. In order to enable the Amazonian rivers become an effective communication link among the Contracting Parties and with the Atlantic Ocean, the riparian states interested in any specific problem affecting free and unimpeded navigation shall, as circumstances may warrant, undertake national, bilateral or multilateral measures aimed at improving and making the said rivers navigable. PARAGRAPH: For this purpose, they shall carry out studies into the means for eliminating physical obstacles to the said navigation as well as the economic and financial implications so as to put into effect the most appropriate operational measures. ARTICLE vii. Taking into account the need for the exploitation of the flora and fauna of the Amazon region to berationally planned so as to maintain the ecological balance within the region and preserve the species, the Contracting Parties decide to:

• Promote scientific research and exchange information and technical personnel among the competent agencies within the respective countries so as to increase their knowledge of the flora and fauna of their Amazon territories and prevent and control diseases in said territories. • Establish a regular system for the proper exchange of information on the conservationist measures adopted or to be adopted by each State in its Amazonian territories; these shall be the subject of an annual report to be presented by each country.

ARTICLE viii. The Contracting Parties decide to promote coordination of the present health services in their respective Amazonian territories and to take other appropriate

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measures to improve the sanitary conditions in the region and perfect methods for preventing and combating epidemics. ARTICLE ix. The Contracting Parties agree to establish close cooperation in the fields of scientific and technological research, for the purpose of the creating more suitable conditions for the acceleration of the economic and social development of the region. PARAGRAPH ONE: For purposes of this Treaty, the technical and scientific cooperation among the Contracting Parties may be as follows: a. b. c.

Joint or coordinated implementation of research and development programmers; Creation and operation of research institutions or centers for improvement and experimental productions; Organization of seminars and conferences, exchange of information and documentation and organization of means for their dissemination.

PARAGRAPH TWO: The Contracting Parties may, whomsoever they deem it necessary and convenient, request the participation of international agencies in the execution of studies, programmers and projects resulting from the forms of technical and scientific cooperation defined in Paragraph One of this Article. ARTICLE x. The Contracting Parties agree on the advisability of creating as suitable physical infrastructure among their respective countries, especially in relation to transportation and communications. They therefore undertake to study the most harmonious ways of establishing or improving road, river, air and telecommunication links bearing in mind the plans and programmers of each country aimed at attaining the priority goal of fully incorporating those respective Amazonian territories into their respective national economics. ARTICLE xi. In order to increase the rational utilization of the human and natural resources of their respective Amazonian territories, the Contracting Parties agree to encourage joint studies and measures aimed at promoting the economic and social development of said territories and generating complementary methods for reinforcing the actions envisaged in the national plans of their respective territories. ARTICLE xii. The Contracting Parties recognize the benefit to be derived by developing, under equitable and mutually beneficial conditions, retail trade of products for local consumption among the respective Amazonian border populations, by means of suitable bilateral or multilateral agreements. ARTICLE xiv. The Contracting Parties shall cooperate in ensuring that measures adopted for the conservation of ethnological, and archeological wealth of the Amazon region are effective. ARTICLE xv. The Contracting Parties shall seek to maintain a permanent exchange of information and cooperation among themselves and with the agencies for Latin American cooperation in the areas pertaining to matters covered by this Treaty.

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ARTICLE xvi. The decisions and commitments adopted by the Contracting Parties under this Treaty shall not be to the detriment of projects and undertakings executed within their respective territories, according to International Law fair practice between neighboring and friendly countries. ARTICLE xvii. The Contracting Parties shall present initiatives for undertaking studies for elaboration of programmers of common interest for developing their Amazonian territories and general terms provide for the fulfillment of the actions contemplated in the present Treaty. PARAGRAPH: The Contracting Parties agree to give special attention to the consideration of initiatives presented by the least developed countries which require joint action and efforts by the Contracting Parties. ARTICLE xviii. Nothing contained in this Treaty shall in any way limit the rights of the Contracting Parties to conclude bilateral or multilateral agreements on specific or generic matters, provided that these are not contrary to the achievement of the common aims for cooperation in the Amazonian region stated in this instrument. ARTICLE xix. Neither the signing of this Treaty nor its execution shall have any effect on any other international treaties in force between the Parties nor on any differences with regard to limits or territorial rights which may exist between the Parties nor shall the signing or implementation of this Treaty be interpreted or invoked to imply acceptance or renunciation, affirmation or modification, direct or indirect, express or tacit, of the position or interpretation that each Contracting Party may hold on these matters. ARTICLE xx. Notwithstanding the fact that more adequate frequency for meetings can be established at a later date, the Ministers of Foreign Affairs of the Contracting Parties shall convene meetings when deemed opportune or advisable, in order to establish the basic guidelines for common policies, for assessing and evaluating the general development or the process of Amazonian cooperation and for taking decisions designed to carry out the aims set in this document. PARAGRAPH ONE: Meetings of Foreign Affairs Ministers shall be convened at the request of any of the Contracting Parties, provided that the request has the support of no fewer than four Members States. PARAGRAPH TWO: The first meeting of Foreign Affairs Ministers shall be held within a period of two years following the date of entry into force of this Treaty. The venue and date of the first meeting shall be established by agreement among the Ministries of Foreign Affairs of the Contracting Parties. PARAGRAPH THREE: Designation of the host country for the meetings shall be by rotation and in alphabetical order. ARTICLE xxi. The Amazonian Cooperation Council comprising of top level diplomatic representatives shall meet once a year. Its duties shall be as follows:

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• To ensure that the aims and objectives of the Treaty are complied with. • To be responsible for carrying out the decisions taken at meetings of Foreign Affairs Ministers. • To recommend to the Parties the advisability and the appropriateness of convening meetings of Foreign Affairs Ministers and of drawing-up the corresponding Agenda. • To take under consideration initiatives and plans present by the Parties as well as to adopt decisions for undertaking bilateral or multilateral studies and plans, the execution of which as the case may be, shall be the duty of the Permanent National Commissions. • To evaluate the implementation of plans of bilateral or multilateral interest. • To draw – up the Rules and Regulations for its proper functioning. PARAGRAPH ONE: The council shall hold special meetings trough the initiative of any of the Contracting Parties with the support of the majority of the rest. PARAGRAPH TWO: The venue of regular meetings shall be rotated in alphabetical order among the Contracting Parties. ARTICLE xxii. The functions of the Secretariat shall be performed pro-tempore by the Contracting Party in whose territory the next regular meeting of the Amazonian Cooperation Council is scheduled to be held. PARAGRAPH: The Pro-Tempore Secretariat shall send the pertinent documentation to the Parties. ARTICLE xxiii. The Contracting Parties shall create Permanent National Commissions charged with enforcing in their respective territories the provisions set out in this Treaty, as well as carrying out the decisions taken at meetings of Foreign Affairs Ministers and by the Amazonian Cooperation Council, without jeopardizing other tasks assigned them by the State. ARTICLE xxiv. Whenever necessary, the Contracting Parties may set up special Commissions to study specific problems or matters related to the aims of this Treaty ARTICLE xxv. Decisions at meetings held in accordance with Articles xx and xxi shall always require the unanimous vote of the Member Countries of this Treaty. Decisions made at meetings held in accordance with Article xxiv shall always require the unanimous vote of the participating countries. ARTICLE xxvi. The Contracting Parties agree that the present Treaty shall not be susceptible to interpretative reservation or statements. ARTICLE xxvii. This Treaty shall remain in force for an unlimited period of time, and shall not be open to adherence. ARTICLE xxviii. This Treaty shall be ratified by all the Contracting Parties and the instruments of ratification shall be deposited with the Government of the Federative Republic of Brazil.

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PARAGRAPH ONE: This Treaty shall become effective thirty days after the last instrument of ratification has been deposited by the Contracting Parties. PARAGRAPH TWO: The intention to denounce this Treaty shall be communicated by a Contracting Party to the remaining Contracting Parties at least ninety days prior to formal delivery of the instrument of denunciation to the Government of the Federative Republic of Brazil. This Treaty shall cease to have effect for the Contracting Party denouncing it one year after the denunciation has been formalized. PARAGRAPH THREE: This Treaty shall be draw up in English, Dutch, Portuguese and Spanish, all having equal validity. IN WITNESS WHEREOF the undersigned Ministers of Foreign Affairs have signed the present Treaty. EXECUTED in the city of Brasília, on July 3, 1978, to be deposited in the archives of the Ministry of Foreign Affairs of Brazil which shall provide the other signatory countries with true copies.

APPENDIX 2

Protocol of Amendment of the Amazon Cooperation Treaty The Republics of Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela, Reasserting the principles and objectives of the Amazon Cooperation Treaty. Taking into account the advisability of institutionally improving and strengthening the cooperation process developed under the auspices of the aforementioned instrument, do hereby agree to: i) Create the Amazon Cooperation Treaty Organization (acto), with corporate body status, and empowered to enter into agreements with Contracting Parties, nonmember States and other international organizations. ii) Modify Article xxii of the text of the Treaty as follows: The Amazon Cooperation Treaty Organization will have a Permanent Secretariat based in Brasilia, which will be responsible for implementing the objectives established in the Treaty in conformity with the decisions taken at the meetings of Ministers of Foreign Affairs and the Amazon Cooperation Council. Paragraph one: The powers and functions of the Permanent Secretariat and of its head will be established in the regulations, which will be approved by the Ministers of Foreign Affairs of the Contracting Parties. Paragraph two: The Permanent Secretariat will prepare – in coordination with the Contracting Parties – its work plans and program of activities, as well as its budgetprogram, which will need to be approved by the Amazon Cooperation Council. Paragraph three: The Permanent Secretariat will be headed by a Secretary General, who will be empowered to enter into agreements, on behalf of the Amazon Cooperation Treaty Organization, whenever the Contracting Parties unanimously authorize him/her to do so. iii) This amendment will be subject to compliance with the internal constitutional requirements of all Contracting Parties and will enter into force on the date of the receipt, by the Government of the Federative Republic of Brazil, of the last note by means of which the compliance with such requirements is advised. Undersigned in Caracas, this fourteenth day of the month of December of nineteen ninety-eight, in eight (8) original copies, in the languages of Spanish, English, Portuguese and Dutch, all equally authentic.

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appendix 3

Declarations of Presidents of Amazon Countries

Manaus Declaration of the 1st Meeting of Heads of State of Amazon Countries (1989)

The Heads of State of the Member Countries of the Amazon Cooperation Treaty, gathered in Manaus on May 6, 1989 with a view towards jointly rethinking their common interests in the Amazonian region and, particularly, on the future of the cooperation for the development and protection of the wealthy heritage in their corresponding Amazonian territories, adopt the following:



Amazon Declaration

1. IN THE SPIRIT of friendship and understanding that drives our fraternal dialogue, we affirm the readiness to drive the political agreement effort started by our governments under the framework of the Amazon Cooperation Treaty, subscribed on July 3, 1978, and also within the framework of their bilateral relations, with a view towards promoting the cooperation among our countries in every area of common interest for the sustainable development of the Amazon region. To such ends, we undertake to foster compliance with all the decisions contained in the Declaration of San Francisco de Quito, adopted by our Ministers of Foreign Affairs on March 7, 1989. 2. AWARE of the significance of protecting the cultural, economic, and ecological heritage of our Amazon regions, and of the need to drive such potential for the benefit of the economic and social development of our people, we insist that the Amazon heritage must be kept by the rational use of the resources in the region so that present and future generations may benefit from this legacy of nature. 3. WE EXPRESS our support to the newly created Special Commissions on the Environment and on Indigenous Affairs, targeted at driving development, keeping natural resources, the environment, and the relevant Amazon populations, and we reaffirm full respect of the right of indigenous populations in Amazon territories to have all the measures taken, aimed at keeping and preserving the integrity of these human groups, their cultures, and their ecological “habitat”, exercising the right inherent in each State’s sovereignty. WE REITERATE, likewise, our support to any actions purporting to strengthen the institutional structure of the Amazon Cooperation Treaty, pursuant to the approach advocated by the Declaration of San Francisco de Quito.

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4. WE REAFFIRM the sovereign right of each country to freely manage its natural resources, taking into account the need to promote the economic and social development of its people, and the appropriate conservation of the environment. In the exercise of the sovereign responsibility of denying the best ways of leveraging and preserving such riches complementing our national efforts and the cooperation among our countries, we affirm our readiness to welcome the cooperation from countries in other regions of the world, as well as of international organizations that may contribute to the implementation of any national and regional projects and programs we might freely decide to adopt, not subject to any external pressures, in accordance with our governments’ priorities. 5. WE RECOGNIZE that the defense of our environment requires examining bilateral and regional measures in order to prevent pollution accidents and to react to their consequences. 6. WE HIGHLIGHT the fact that the protection and conservation of the environment in the region – one of the key goals in the Amazon Cooperation Treaty to which each of our countries is firmly dedicated – cannot be realized if we do not improve the desperate social and economic conditions affecting our people, which are aggravated by an increasingly untoward international situation. 7. WE DENOUNCE the severe characteristics of the sovereign debt and the service thereof, making us net exporters of capital towards creditor countries, at the expense of sacrifices that are unbearable for our people. We insist that the debt cannot be paid, given current conditions and circumstances and that its handling should be based on the principle of shared responsibility, in such terms as enabling the reactivation of the economic growth and development process within our countries, a prerequisite to the protection, conservation, leveraging, and rational use of our natural heritage. 8. WE STRESS the need for the concerns expressed by highly developed countries relating to the conservation of the Amazon environment translates into cooperation measures at the financial and technological levels. We advocate for establishing new resource flows in additional and concessional terms, for projects aimed at protecting the environment in our countries, including pure and applied scientific research, and we challenge the attempts at imposing conditions on the allocation of international funds for development. We hope we will witness the creation of conditions enabling free access to scientific knowledge and nonpolluting technologies or technologies aimed at preserving the environment, and we reject any attempts made at obtaining any business profits by claiming lawful environmental concerns. This approach is mostly based on the fact that the main reasons for environmental decay at the world level are industrialization and consumption models, as well as waste in developed countries.

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9. CONSCIENT of the global risks that the existence of nuclear weapons and other massive destruction weapons entails for life and environmental quality and intent on preserving our region free from these dangers, we restate the commitments of our countries with the use of nuclear power solely to peaceful ends, and we urge countries in possession of nuclear weapons to immediately stop experimenting with them and to promote the phasing out of their arsenals. Likewise, we condemn the deposit of radioactive waste and other toxic waste endangering the ecosystems in the Amazon region. We represent the need to adopt adequate measures aimed at reducing the hazard of environmental pollution in the peaceful use of nuclear power. Also, we state our support to the ends and purposes of the Treaty for the Prohibition of Nuclear Weapons in Latin America. 10. CONVINCED about the need to strengthen the process of consultation and dialogue among our countries on every issue concerning the development of the region, even those provided for by the Amazon Cooperation Treaty, and certain of the fact that our cooperation strengthens the integration and solidarity in Latin America, we state our decision of joining efforts in a sound and pioneer joint venture, purporting to ensure a peaceful future of cooperation and prosperity for the countries in the Amazon region. Therefore, we have decided to meet on an annual basis. On behalf of the Government of Brazil, On behalf of the Government of Ecuador, José Sarney Rodrigo Borja On behalf of the Government of Peru, On behalf of the Government of Venezuela, Alan García Pérez Carlos Andrés Pérez On behalf of the Government of Colombia, On behalf of the Government of Guyana, Virgílio Barco Hugh Desmond Hoyte On behalf of the Government of Suriname, On behalf of the Government of Bolivia, Ramsewak Shankar Valentín Abecia Baldivieso



Manaus Declaration of the 2nd Meeting of Heads of State of Amazon Countries (1992)

The Presidents of Amazon Countries, gathered in Manaus on February 10 and 11, 1992, with a view to examining the issues in the United Nations Conference on Environment and Development, adopt the following:



Manaus Declaration on the United Nations Conference on Environment and Development

1. We are convinced that an environmentally healthy planet must be in line with a socially and economically fair world. In order to achieve this goal, changing nonsustainable behaviors, development models, and consumption patterns is paramount.

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2. Within our countries, the imperative of economic and social development must be matched with the conservation and protection of the environment, through the promotion of strategies for the sustainable use of natural resources, and the respect of the right of citizens to a better quality of living. Thus, we affirm the right of our countries to use their own natural resources to ensure their wellbeing and progress. 3. We reaffirm the significance of education and public awareness, wherefore we undertake to completely support any efforts geared at increasing knowledge and public adherence to suitable environmental procedures. Additionally, we agree to strengthen environmental education and to urge the international community to support this action. 4. We reaffirm our conviction that the patterns of international production, consumption, and distribution are at the roots of environmental problems in developing countries, especially the impairment of ecosystems and poverty to which most human beings have been pushed. 5. The greater responsibility of developed countries is admitted in the increasing environmental decay, a strong enough reason whereby no environmental controls or conditions may be imposed on developing countries. 6. In turn, underdevelopment is the main cause and a severe consequence of the environmental decay. Consequently, the solution to environmental problems is closely linked to a new attitude vis-à-vis international cooperation, which translates into the expansion of financial resources, a greater access to technologies, the boosting of business flows and into measures aimed at solving the sovereign debt problem. 7. Emergency domestic measures shall be insufficient to combat poverty, unless supported by international cooperation, based on new principles. 8. Overcoming current environmental problems calls for a conscious and determined effort by the States and individuals that shall transcend the simple logics of market forces. 9. From the signing of the Amazon Cooperation Treaty, on July 3, 1978, our countries have undertaken a deep and wide commitment in terms of joining actions purporting to achieve the symmetric development of the region, the features of which are clearly conceived and denied in the Treaty. This unique engagement has allowed our countries to enjoy presently a wide range of policies and strategies through which it will possible to achieve sustainable development goals in the region. 10. We recognize the rights of indigenous populations and their contribution to the conservation of the environment. We think that a greater involvement on their part will be positive. In this sense, we are adopting meaningful measures, among which we should stress the efforts made to respect the rights of indigenous people on their lands, according to national laws. This is why consistent with the mandate arising from the i Meeting of the Ibero-American Summit held in Guadalajara, we have assessed the advances made, and we have reaffirmed

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our support to the creation of the Fund for the Development of Indigenous People of Latin America and the Caribbean. 11. We are determined to continue furthering all our efforts with a view toward the conservation of the largest native forest in the planet and its sustainable development, allocating to this task all resources available to us. 12. In this sense, we reaffirm the principles and purposes of the Manaus Declaration of May 6, 1989, wherein our countries established their common interests in the Amazon region, particularly on the future of the cooperation for the development and conservation of this heritage. 13. We also reaffirm that this effort will not suffice unless we can count on international cooperation to support the efforts made by our States in discharging their responsibilities and in the exercise of their sovereignty. 14. We stress again our readiness to strengthen bilateral and subregional cooperation in order to prevent environmental damage and tending to their consequences. 15. The United Nations Conference on Environment and Development shall be a historical landmark to start a new global relation that translates into financial and technological cooperation programs, which enable the strengthening by developing countries of their efforts at maintaining and fostering the sustainable development of their natural resources. Therefore, we commit our efforts to contributing to its success, together with all other countries in Latin America and the Caribbean, with which we adopted, in March 1991, the Tlatelolco Platform on Environment and Development. 16. We agree upon a joint understanding on the main issues of the conference. It is our belief that this agreement will meet the expectations of the international community. Such a joint understanding is embodied in the following position paper that shall guide the delegations from our countries in the negotiations prior to the Conference.



Joint Position Document of Amazon Countries with a View to the United Nations Conference on Environment and Development

i

Climate Changes

1. Current trends in world climate change will result in deep implications for the environment and the development of our countries, even islands, and low coastal areas. We urge developed countries – largely responsible for the cumulated concentration of greenhouse gases – to adopt specific measures in order to reverse said trends. 2. The negotiations of a framework convention on climate change are a unique opportunity for the international community to reach commitments aimed at reverting the trend toward the increase in greenhouse gases concentrations.

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Said commitments are necessarily distinct in developed countries and in developing countries and should not affect economic and commercial interests of the latter. Developing countries can only be fully integrated into international efforts aimed at protecting the climate if the required financial and technological resources are guaranteed for the adoption of a new sustainable development model. 3. Each country should be able to reach the energy model that best suits its needs and global needs. Required adoptions result in the replacement of unsustainable lifestyles and consumption models regarding future generations.

ii

Biodiversity and Biotechnology

1. Biological resources are unquestionably natural resources of each country, which therefore exercise its sovereignty on them. Immediate action is required to promote the conservation and sustainable use of biodiversity. These activities must be so conducted by countries with the support of the international cooperation, based on intergovernmental agreements. 2. Acknowledging the rights of the countries where biodiversity originates is paramount, especially including genetic resources; to that end, appropriate systems of records, regulations and control must be adopted and observed. 3. Cooperation is required among developed countries and those countries rich in biological resources, especially in terms of strengthening local institutions qualified for conducting research. National research efforts, information gathering and monitoring must be supported by the international community. 4. The sustainable use and development of such resources should be even more stressed than their conservation, in order to maximize and communicate their benefits. 5. The conservation of biodiversity must be comprehensive, prioritizing protected areas and those areas establishing economic and environmental zoning. To such ends, regional cooperation is significant, and one major example is the environmental and economic zoning program conceived and developed within the scope of the Amazon Cooperation Treaty. 6. Onsite and offsite research in source countries must be particularly supported and promoted. Also, international cooperation is required for the maintenance of gene banks. 7. Biodiversity and biotechnology are closely related, posing one of the clearest opportunities for sustainable development. Biotechnology highly depends on the conservation of genetic and biological resources, especially in developing countries, wealthy in biodiversity. 8. Traditional methods and knowledge of indigenous peoples and local communities need to be valued and protected. Their share in economic and commercial benefits arising from the usage of biodiversity is required in order to ensure their economic and social development.

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9. We have a clear interest in the success of negotiations toward a Convention on Biological Diversity; this should mirror the required relation between access to biodiversity resources and access, particularly to biotechnology resulting there from, as well as the technology required for its conservation. 10. Access to biodiversity resources must necessarily include those resulting from biotechnology, as well as wild and cultivated resources. International cooperation is required for the endogenous development of biotechnology research in the countries where biological resources originate.

iii

Forests

1. International discussions on forests should take into account the fact that these ecosystems are part of territories under the jurisdiction of the States, wherein the latter fully exercise their sovereignty. The states are charged with the passing of legislation over such spaces and their usage, in the light of national priorities. 2. Any global consideration on forest resources must necessarily include, without any discrimination, all types of forests. 3. Besides the purely environmental aspects, the relevance of the forest as an economic, cultural, and social space must absolutely be acknowledged. Interaction among these elements creates an integral whole that is complex and wide. Forest policies are a major part in development strategies in our countries. 4. The economic dimension of the forest comprises the natural forest heritage, including mineral reserves, energy sources, tourist potential, and human occupation opportunities for production activities. Social and cultural dimension consists in its “habitat” status as human populations, whether native or not, that depend on the forest for their livelihoods and cultural development. 5. National efforts aimed at developing models for the sustainable use of forests must be completely supported by the international community. 6. The promotion of an economic use of the standing forest should be stressed, given its environmental, social, and positive economic effects, but in order to do that it is absolutely necessary to have a timely and sufficient access to the market of the various forest products. 7. Forest management must match the imperative of its economic valuation for the benefit of national societies – in such a way as to ensure proper levels of social welfare for the communities directly dependent on them – with the right environmental protection. In this sense, developing countries evidence specific needs that must be taken into account for the decisions made by the United Nations Conference on Environment and Development. 8. Economic activities in forest areas can be interfaced with the conservation and protection of natural and environmental resources. To such ends, countries should develop sustainable forest use strategies, and have access to markets for their products, that enable a sustainable development.

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9. These strategies should aim at matching short-term actions with a longer-term perspective, echoing future opportunities. The concept of balance of costs and benefits should be extended, in order to include social equity, a greater technological efficiency of production processes, the conservation of natural resources, the respect for cultural values of local populations, and their knowledge of forest traditional uses.

iv

Soil Degradation

v

Water Resources

1. The relevance of the reversion of the increasingly deeper process of soil degradation, erosion, and desertification is stressed, as well as its prevention. Nonsustainable processes for rural development, the use of inadequate technologies, as well as uncontrolled processes of land occupation have been severely impacting the environment, damaging the agricultural production in a way that threatens food security in developing countries. 2. Combating droughts and keeping watersheds via a comprehensive usage of land and water resources is key, as well as maintaining the forest cover. 3. It is essential to further promote land occupation according to its environmental layout and its development potential, both dynamically conditioned by scientific and technical advances. The importance of preventive and corrective actions should be stressed in areas having conservation as a goal. Nevertheless, it is essential to equally implement such measures in areas having a productive problem.

1. Environmentally suitable management of water resources is a key element in the conservation of ecosystems, health protection, and the promotion of wellbeing. 2. The close connection between an integrated management of water resources and the protection of marine and terrestrial ecosystems, biodiversity and a rational land use must be acknowledged. Thus, programs should be identified for the sustainable development of water resources at the local, national, regional, and global levels, as well the means for implementing them. 3. In this sense, the measures taken at the national and regional levels specially stand out, aimed at managing, conserving, and providing a comprehensive management of watersheds. Such measures stand out as key for the right harnessing of water resources as a source of production activities such as irrigation, fishing energy production and transportation; also for the control of polluting agents, the adoption of measures for the prevention and control of environmental hazards, and the protection of populations’ health. 4. The populations’ life quality is tightly linked to the supply of treated freshwater in such a quantity and quality that meets their needs. In connection with this, specific supply goals should be established for the next decade, within a set term framework. 5. Institutional capacity, society information and awareness, education and availability of financial resources are prerequisites for the comprehensive management of

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water resources. National efforts for the comprehensive management of watersheds should be acknowledged and supported by the cooperation of the international community.

vi

Toxic and Hazardous Wastes

vii

Strengthening of Institutions

1. Toxic waste should be disposed of or removed at the production site. Countries shall have the right technologies for managing them in an environmentally safe way. 2. In order to address the problem correctly, the negotiation of a protocol to the Basel Convention should be completed as soon as possible to establish the appropriate procedures in terms of accountability and compensation for the damages resulting from the transboundary movement and handling of hazardous waste. 3. An assessment is equally required, in the light of the Basel Convention, of the existing rules, provisions, and practices concerning the damping at sea of hazardous waste in order to recommend any additional measures within the framework of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 29/12/72). 4. Additionally, implementing the mechanisms provided for by resolution 44/226 adopted by the United Nations General Assembly, on illicit traffic of toxic products and wastes, is a must for the international community in order to monitor and report such traffic.

1. A precondition to fostering sustainable development, the strengthening of institutions should be geared toward increasingly combining economic decisions with environmental protection strategies. Both the States and the international organizations must overcome the institutional dichotomy between these aspects. This should be one of the key innovation elements in the handling of environmental and development issues. 2. We state that strengthening national institutions is a priority to promote sustainable development. We equally stress the relevance of strengthening regional institutions. International cooperation is an unquestionable basis for the conservation and rational harnessing of the natural heritage. 3. Globally, we must develop creative solutions for the United Nations to have more efficient and stronger mechanisms available for implementing the decisions of the United Nations Conference on Environment and Development. The planning and implementation of its actions must be conducted with full involvement of developing countries, so that they match their priorities. Accordingly, these institutions should be able to support, as per the specific needs of each country, the measures and programs implemented by the latter with a view to sustainable development.

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Human Settlements

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Indigenous and Local Populations and Communities

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1. Problems affecting urban life quality also have a global dimension to the extent that their consequences exceed national frontiers. During the last twenty years, industrialized countries have in a broad sense achieved an apparent improvement in the conditions of their cities, by means of sound resources and new technologies. On the contrary, in developing countries, the issue is reaching critical levels that entail severe and unpredictable consequences. The United Nations Convention on Environment and Development should adopt a program of specific actions, within the scope of Agenda 21, in order to change the program in developing countries. 2. Agenda 21 programs relating to human settlements should include access to basic services such as health, household, drinking water, citizen safety, energy supply, transportation. In this context, both the urban periphery and rural settlements should equally be the target focus, as well as the supply of households for populations lacking revenue and the extremely poor ones. 3. Means should be developed that enable education, information and awareness of the society, as well as the professional training geared towards the adequate management of issues such as disadvantaged children, the disposal and handling of household and industrial waste, unemployment, violence, uncontrolled land occupation, and lack of basic health. 4. Implementing the required initiatives in developing countries calls for the contribution of additional resources sourced in international cooperation.

1. Within the context of life quality improvement of indigenous and local populations and communities, the value of traditional knowledge and its practices must be acknowledged for promoting sustainable development. To such intents, mechanisms should be developed for the protection of traditional knowledge and for compensating the appropriation and commercial use of this knowledge. Therefore, it is a must to ensure the conditions for self-development, support the development of own and sustainable means of alternative production, strengthen national institutional mechanisms aimed at fostering its development, and to protect and guarantee the “habitat” of such communities. 2. Likewise, ensuring the respect of indigenous populations and local communities’ rights is crucial for the preservation of their cultural identity. National efforts are essential for the promotion of sustainable development of those communities, supported by the mobilization of the international technical and financial cooperation, particularly within the context of the International Year of Indigenous People, which shall be celebrated in 1993.

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x

Financial Resources

xi

Technology Transfer

1. Reaching the goal of integrating the environment with development requires a new attitude toward international cooperation. This new attitude is rooted on the understanding that developed and developing countries are co-partners in the same cause and that economic and environmental bene ts resulting from this cooperation will be common. 2. Nevertheless, for the completion of this common goal, countries enjoy terribly unequal capacities and financial means. Consequently, developing countries have major limitations to engage in global efforts. 3. Industrialized countries come to play a historic responsibility in terms of the degradation of the environment at the global level, which is currently not sustainable. As a result of this and of the economic and financial capacity, they shall assume a proportionately larger responsibility in the sustainable development process. 4. Accordingly, new and additional laws of financial resources are required that are supplied subject to the right conditions for developing countries in order for the latter to comply with the duty to protect the environment and to promote development. 5. A solution should be found for the severe situation posed by the sovereign debt of developing countries, as it compromises their capacity to adopt the essential policies and measures required for implementing sustainable development strategies. 6. Likewise, protectionist barriers to international trade should be removed, whether they be the traditional barriers or environmentally sourced nontariff barriers. On the other hand, natural resources and their products should have to be assessed and the relevant price be allocated pursuant to their value. 7. New financial resources should be channeled by means of the right institutional mechanisms that adequately provide for means of concessional disbursement, not subject to any conditions, that operate in accordance with the priorities from the beneficiary and a smooth handling of environmental and development issues. Besides, said resources must take into account the environmentally sound socioeconomic development needs of developing countries populations. 8. Representation in these mechanisms and management thereof should follow the equity principle among developed and developing countries. For the above reasons, it should be understood that the financial mechanism called “Global Environmental Facility” is a clearly limited and insufficient instrument. The development of a mechanism is essential that enables countries to implement the guidelines and action plans in Agenda 21, thus promoting sustainable development. Likewise, multilateral legal instruments under negotiation shall include their own financial mechanisms containing the features stated before.

1. An efficient strengthening of new transfer mechanisms is required that ensure environmentally adequate technologies for developing countries. Given financial and

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institutional constraints of developing countries, access to said technologies shall be conducted on preferential terms rather than on solely business terms, considering the responsibility of developed countries in environmental degradation and the common interest that drives the international community toward the protection of the environment; the transfer of new environmentally adequate technologies to developing countries is a prerequisite for honoring commitments on the environment and development that will be undertaken within the context of the United Nations Conference on Environment and Development, as well of the Convention being negotiated on the Protection of Biological Diversity and Climate Change. 2. Increasing national and regional capacities is important not only in order to absorb environmentally suitable technologies but also for scientific research and for the development of own technologies. Developed countries must absolutely support such efforts bilaterally and multilaterally. Manaus, February 10, 1992. Republic of Bolivia Cooperative Republic of Guyana Federative Republic of Brazil Republic of Peru Republic of Colombia Republic of Suriname Republic of Ecuador Republic of Venezuela



Manaus Declaration of the 3rd Meeting of Heads of State of Amazon Countries (2009)

The Heads of State of the Member Countries of the Amazon Cooperation Treaty Organization, on occasion of the preparatory meeting for the United Nations Conference on Climate Change held in Manaus, Amazonas, on 26 November 2009: Affirming their determination to drive and consolidate cooperation between the Member States of acto in areas of common interest, thus contributing to strengthen South American unity while ensuring full respect to national sovereignty; Recognizing the proprietary need to foster the Amazon’s sustainable development through integral, participatory, shared and equitable management as an autonomous and sovereign response to current environmental challenges, taking into account the effects of the international financial crisis; DECIDE TO: 1. Endow acto with a new and modern role as a cooperation, exchange, knowledge, and joint visibility forum to face the new and complex international challenges that lie ahead. 2. Commission the Chancelleries to prepare a new short, middle, and longterm Strategic Agenda for acto that includes regional actions to support the national initiatives with a view to strengthening the cooperation process. This Agenda will be examined and approved in the Tenth Meeting of Ministers of External

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Relations of the Amazon Cooperation Treaty to be held in the second quarter of 2010 in Peru. 3. Guided by the principles of reducing regional asymmetries, adopting complementary and solidarity economic alternatives for the sustainable and rational use of Amazonian biodiversity and other resources, and improving the quality of life of the local populations, instruct the inclusion in the new Amazonian Strategic Cooperation Agenda of provisions inter alia to:

• Build an integral regional Amazonian cooperation vision that incorporates eco-

•

•

• • • • • •

•

nomics, environment, health, indigenous and tribal peoples, education, science and technology, water resources, infrastructure, commercial navigation and facilitation thereof, tourism and communications, with a view to promoting the harmonious and sustainable development of their respective Amazonian spaces. Identify actions to reduce and monitor deforestation, favor sustainable forest resources management and implement urgent measures to ensure biodiversity conservation and preservation, focusing on economic, rational and sustainable use, and including the search for mechanisms that support and create funding strategies to conserve and protect the forests. Strengthen the institutional and political mechanisms of the indigenous and tribal peoples of acto to further a diagnosis of their situation by designing indicators, or others, with a view to identifying joint actions that enable them to develop in harmony with nature, while protecting and conserving their traditional extractive products. Protect, manage, and preserve the region’s water resources to ensure the health of the survival ecosystem. Develop actions to promote food security and the eradication of hunger in the shortest delay possible. Coordinate environmental health surveillance, execute coordinated actions in frontier areas, and adopt coordinated prevention mechanisms. Foster ecotourism. Decisively drive a regional science and technology agenda for the Amazon that includes traditional knowledge. Instruct the acto Permanent Secretariat to accompany international negotiations on central issues for Amazonian cooperation such as climate change, biological diversity and forests. Any actions taken as a result thereof shall be previously approved by the member countries. Incorporate sectorial ministerial meetings as part of the process of implementing the Strategic Agenda.

4. Reaffirm the urgency and importance of the Organization’s ongoing relaunching process by strengthening the Permanent Secretariat, and instruct their Ministers of

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External Relations to adopt measures that lead to concrete actions to ensure its institutional strengthening so as to enable compliance with the mandates conferred to it by its member countries, including a definitive solution for its permanent headquarters. 5. Instruct the Permanent Secretariat to conduct a study in coordination with the member countries to assess possible sources of funding from the countries themselves in order to overcome acto’s dependence on foreign financing to develop its strategic projects. 6. Reaffirm the importance of establishing or reactivating the Permanent National Commissions as the spheres in charge of executing the decisions made during the Meetings of Ministers of External Relations, pursuant to Article 23 of the Amazon Cooperation Treaty. 7. Express their rm support to the new administration of the Amazon Cooperation Treaty Organization Permanent Secretariat.

Manaus

26 November 2009

Index acto Amazonian Cooperation Council (acc) 93, 114–117, 119–124, 126–127, 137,  155, 158–160, 162, 164–183, 188, 193, 215–217, 219, 221–223, 238–239, 258, 274, 277–278, 284, 286, 288, 304, 308, 310, 313, 348, 368, 394, 545 Coordination Committee of the Amazon Cooperation Council (ccacc or ccoor) 166, 177, 207–208, 216, 219,  239–242, 277, 286, 348, 368–369 headquarters 117, 137, 155, 165–167, 169–170, 173, 175, 208–210, 213–216, 218, 283, 306 Meeting of the Presidents 97, 114–115, 139, 141–147, 155–159, 174, 242, 272, 274–276, 282–284, 348, 394 mmfa 114–116, 118–121, 124–127, 137, 155, 162, 164–194, 208–211, 215–223, 231–232, 239–240, 245, 247–249, 258, 275–317, 324, 330–332, 334, 348, 363, 368–369, 372–373, 384–385, 394, 540, 542, 549, 550 Special Commission on Environment for the Amazon (scea) 126–127, 156, 160, 166, 180–182, 190, 192, 210, 314, 451–452 Strategic Agenda of Amazon Cooperation (aeca) 280, 289–330, 348–349 2004–2012 Strategic Plan 213–216, 218, 222–237, 244, 255 Amazon Cooperation Treaty 1978 dispute resolution 109, 373 duration of the treaty 108–109 duties 110–111, 366 enforcement 97, 370 environmental commitments 398 financial mechanism 217, 239–242, 287–288, 307–310, 372–373 framework agreement 96–97, 137, 359, 371–372 French Guyana 2, 15–16, 19, 36, 41, 52, 54, 58, 108, 116, 217, 232, 281, 366, 453, 466 negotiation of the Amazon Pact 87–93 1998 Protocol of Amendment 162–173, 207–208, 222, 353, 363, 390, 395, 431, 561

parties 95 Permanent National Commissions (pncs) 114, 116, 118, 119, 123, 137, 177–178,  209, 216–217, 219, 222, 230–231, 242, 278, 283, 287, 301, 517, 540–548 Permanent Secretariat 28, 122, 161–171, 174–176, 208, 218, 231, 241, 286, 301–302, 348, 364, 369, 372, 379–385, 490, 548 principles 98–106, 136, 142, 396 principle of conservation of natural resources 101–102 principle of cooperation 104–105 principle of equality 102–104 principle of regional integration 105–106 principle of sovereignty 98–101, 291, 396 priority goal 95–96 Pro Tempore Secretariat 114, 117–118, 120–123, 137, 155, 158–162, 164–172, 184–185, 188, 208 reservation 109 rights 110 Special Commissions 110, 121, 126–128, 138, 165, 175–176, 181, 209, 230–231, 240–242, 284, 543 territorial scope 106–108, 367 thematic coordinating bodies 175, 240–241 Amazonia Amazon States 2 area 1–2 biodiversity 1, 6–7 climate 2–3, 10–11 ecosystem services 10–11, 229 etymology 3–4 geography 1, 2–3, 4–12 history 1, 3–4 internationalization 76, 79, 99, 102, 148–149, 331, 357, 367 rainforest 2 river basin 8–9 special protection 428–431 species 6–7

577

Index Amazon Fund (Fundo Amazonia) 308–310, 317, 373, 384, 388, 391, 458, 491, 494, 497–500, 503, 529 Amazonian Institute of Scientific Research (sinchi) 318–319, 496, 531, 539 Amazon Research Institute (iiap) 232, 539, 547 Amazon River 3–4, 8–9, 14, 16, 39, 68, 89, 120, 386, 470 Amazon River Basin 12, 107, 112, 118, 136–137, 367 Amazon Sustainable Landscapes Program 349, 455–456, 488 arpa Program (Amazon Region Protected Areas Program) 260, 456–465,  488, 490 bndes 308–310, 312, 317, 373, 458, 460, 497–500, 529 Bolsa Floresta 388 Brazilian Institute for Amazonian Research (inpa, Instituto Nacional de Pesquisas da Amazonia) 87, 539 Brazilian Legal Amazon (Amazonia Legal) 387, 463, 498, 539 Brazilian National Institute for Space Research (inpe) 253, 311, 316–317, 387,  492, 500 Brundtland Report 28, 97, 101, 128, 130, 134–136, 138, 142, 409 Buen Vivir 23, 404, 427, 429, 510–511 Caribbean Community (Caricom) 231, 313, 376, 549 climate change 30–31, 144, 147, 160, 183, 212, 221, 240–241, 243, 257–261, 263, 265, 270, 273, 283, 285, 293–295, 299–300, 305, 311–313, 317, 324–344, 354, 359, 370, 377, 383, 385, 392, 424, 437, 453–456, 461–463, 488–493, 501–510, 515 adaptation 69, 259, 299–300, 324–329, 340, 341, 343, 354, 383–384, 391, 455, 461, 510 climate change causes and effects in Amazonia 48–49, 66–73 common but differentiated responsibilities (cbdr) 88, 145, 209, 250,  278–279, 320, 324, 330–332, 334, 493

mitigation 153, 160, 267, 299–300, 305, 324, 335, 340–341, 343–344, 424, 456, 510 unfccc 153, 206, 249, 259, 266–268, 277, 280–281, 295, 312, 320, 324, 330, 334, 343, 346–348, 350–351, 385, 392 Kyoto Protocol 163, 194–195, 201–202, 212, 266, 268, 344, 351 Paris Agreement 31, 275, 335–336, 344–346, 350–351, 357–360 common concern of humankind 148 Common Market of the South (Mercosur) 140, 218, 231, 281, 369, 371,  376, 548–549 Community of Andean Nations (can) 87, 90–91, 140, 220, 228, 231, 236, 275, 281, 369, 375, 453, 468, 549 constitutional environmental rights (cers) 401–427 collective rights 405–407 duties 408, 418–420 enforcement 413–418 future generations 142, 405, 407–410, 418, 420–422, 424, 427 indigenous groups 405, 419, 422 individual duty 418–421 individual right 405–407 nature rights 131, 305, 405–406, 409, 410–413, 420–421 participation 420 State’s duty 421–425 Convention on Biological Diversity (cbd) 30, 81, 133, 140, 147, 154, 159, 194,  197–199, 204–207, 212, 243, 249, 254–258, 263–264, 271, 297–298, 312, 322–323, 335, 348, 392, 385, 438–439, 452–453, 468 Aichi Biodiversity Targets 322–323, 346–347, 351, 438–439, 441, 476 Convention on International Trade in Endangered Species of Wild Fauna and Flora (cites) 30, 81, 194, 211, 249, 307, 312,  335, 385, 392 Declaration of the United Nations ­Conference on the Human Environment. See Stockholm Declaration

578 deforestation 220, 314, 386–388 Brazilian Action Plan for Prevention and Control of the Legal Amazon Deforestation (ppcdam) 463, 498 deforestation in protected areas 386, 446–449 deforestation in indigenous territories 386, 446–449 monitoring 253–254, 382–383, 386, 492–493 Earth Summit. See United Nations Conference on Environment and Development (unced) environmental and land defenders 386 environmental impact assessment 126, 129, 131, 269, 422, 523, 534–535 Food and Agriculture Organization (fao) 127, 133, 138, 178, 182, 184, 190–192,  196, 202–205, 211–212, 230, 234, 236, 247, 249, 269, 322, 336, 345, 351, 383, 451, 454 forest certification 58, 140, 154–155, 160 Forest Stewardship Council (fsc) 57, 154, 260 freedom of navigation 77–79, 85, 91, 110, 112, 121, 216, 227, 237, 276–279, 282, 289, 293, 363 gef Amazon Project (Integrated and Sustainable Management of ­Transboundary Water Resources in the Amazon River Basin Considering Climate Variability and Climate Change Project) 31, 33, 237, 243, 249, 258–259,  284, 311–312, 325–330, 349–350, 354, 361, 375, 378, 383, 392 Global Environment Facility (gef) 178, 182, 184, 234, 237, 310, 455–456, 458, 488, 494–497 governance 231–233 environmental governance 318, 516, 522 environmental ministries 522–524 forest governance 523–524 good governance 521 poor governance 429, 516, 518 protected areas governance 521 Greenpeace 154, 362, 388

Index indigenous communities 4, 10, 29, 34–43, 45–47, 62, 91, 93, 112, 124, 127–128, 142, 144, 147, 182, 186, 200, 207, 216–217, 225–226, 235, 237, 244–246, 256, 258, 262–263, 282–283, 288, 291–293, 299–300, 310–311, 320, 336–338, 351, 358, 360, 400, 405, 411, 422, 434, 437, 453–454, 470–476, 489, 495–496, 504–506, 508, 511, 513, 519–520, 544, 547–550 indigenous territories 33, 386, 388, 419–420, 438, 441–443, 445–449, 469, 487, 493–494, 500, 529 traditional knowledge 74, 150, 285, 313, 422–423 integrated water resources management (iwrm) 326, 329, 383 Integration of Amazon Biome Protected Areas (iapa) 454, 487 International Arrangement on Forests 203, 212, 265, 340–341, 351 International Institute of the Hylean Amazon 86, 94 International Tropical Timber Agreement (itta) 28, 132–133, 135, 138, 195–196, 211 International Tropical Timber Organization (itto) 128, 132–134, 138, 140, 152, 154,  160, 195–196, 211, 227, 235, 247, 249, 254, 310–311, 316–317, 383, 471–473 ipf/iff 29, 151, 194–201, 203–205, 207, 211–212 iucn 27, 80–82, 93, 129–130, 133, 196, 228–230, 233–234, 257, 261, 437–444, 453–454, 473, 476–477, 479, 481, 520, 548 La Plata River 11 1969 treaty 87, 91 megadiverse countries 7, 182, 285 National Institute of Amazonian Research (inpa) 87, 539 Nationally Determined Contributions (ndc) 344, 359–360 National Service of Natural Protected Areas (sernanp) 468, 524, 535, 546 National System of Protected Area (sinanpe) 465, 478

Index New York Declaration on Forests 31, 275, 335–339, 351, 360–361 Non-legally Binding Instruments on All Types of Forests 2007  149, 268–269, 337 Organization of American States (oas) 85, 87, 92, 116, 232, 234, 236–237, 258, 374–375, 548–549 payment by performance 495 precautionary principle 409, 412, 423 protected areas 127, 228–229, 243, 254–258, 261–264, 296, 320, 323–324, 424 area by country 443–445 deforestation in protected areas (see deforestation) iucn categories 438 national system of protected areas 127, 451, 465, 478, 484, 488, 523, 530 peace parks 470–475 private 476–487 regional approach 449–456 transboundary 127, 451, 465–475 Protected Areas, Natural Solutions to Climate Change (nascc) 454–455, 488 Reducing Emissions from Deforestation and Forest Degradation (redd)+ 202,  259, 266–268, 271, 277, 300, 346, 470, 480, 494–495, 500–504, 513, 515 Amazon Fund (Brazil) 308–310, 317, 373, 384, 388, 391, 458, 491, 497–500, 503, 529 Coalition for Rainforest Nations 266 gef – Heart of the Amazon project (Colombia) 33, 237, 494–495 Guyana redd+ Investment Fund (grif) 503–504 Low Carbon Development Strategy (lcds - Guyana) 501–502 Socio Bosque Program (Ecuador) 469, 494, 509–513 Redparques 33, 190, 243, 257–258, 320–323, 437, 441, 443–444, 451–455, 487–489 sinap (Colombia’s System of Protected Areas) 485–486, 523, 530 snuc (Brazil’s National System of Protected Areas) 456–457, 463, 488 Solimões River. See Amazon River

579 South-South cooperation (ssc) 197, 223, 229, 270, 307, 310, 314, 327, 330, 349, 382–383, 392, 456, 493 sovereignty 44, 46, 83, 85–90, 96–98, 100, 102, 104, 109–111, 125, 133–134, 136–137, 145, 148, 159–160, 194, 219, 223, 291, 301, 307, 330–331, 334, 355, 358–361, 366–371, 373–374, 380, 390–391, 398–399, 423, 429, 466, 501–502, 518 over natural resources 78, 92–94, 143, 149, 196, 211–212, 298, 393–394, 396–397, 419, 421, 427, 433, 514 Stockholm Conference 27, 76–77, 82–84, 88, 129, 147, 149–150, 397 Stockholm Declaration 94, 99–101, 113, 400–401, 407, 418 Sumak Kawsay. See Buen Vivir Sustainable Development Goals (sdgs) 31, 342–344, 39 sustainable forest management 57, 184, 195–198, 200–201, 204, 207, 226, 244–246, 253, 260–261, 263, 265–270, 273, 295–296, 300, 314, 336–337, 341–342, 350, 383, 392, 498, 512, 520–521, 529 Tarapoto Criteria and Sustainability Indicators 29–31, 183–188, 199, 210–211,  216–217, 226, 228–229, 234, 236, 253, 243–248, 250, 253, 270, 305, 312, 314, 354, 378, 383, 392 2020 Vision for Amazonia 453 undp 121–122, 184, 456, 508 un Economic and Social Council (ecosoc) 203–204, 265 unep 13, 31, 129, 154, 234–235, 258–259, 310, 315, 325, 375, 380, 383, 392, 450, 454 unfccc. See climate change un Forum on Forests (unff) 29–31, 200, 203–205, 207, 212, 237, 247–249, 265, 269, 271, 274, 295, 330, 333–337, 340–342, 344, 346, 350–351, 360, 383–385, 392 United Nations Conference on Environment and Development (unced) 140, 143,  147–154, 178, 180–181, 183, 193, 206, 212, 326, 331, 374 Universal Declaration on Human Rights 413

580 un Millennium Declaration Development Goals (mdgs) 264–265, 269, 271, 340 Agenda 21, 147, 149, 151–153, 180–181, 189, 194, 206, 210, 332, 492 1992 Forest Principles 133, 140–141, 147–151, 160 Rio Declaration on Environment and ­Development 100, 113, 140–141, 145, 147, 149–150, 159, 250, 330, 332, 400 Vienna Convention on the Law of the Treaties 95, 107–109, 113 Wildlife Conservation Society (wcs) 350, 474

Index World Bank 134, 178, 234, 239, 247, 349, 455, 503, 514, 521, 548 World Charter for Nature 130–131, 138 World Commission on Environment and Development 134, 409 World Conservation Strategy 97, 128–130, 135, 138 World Wide Fund for Nature (wwf) 129, 154, 234–235, 239, 254, 257, 321, 324, 453–455, 458, 468, 548 Yasuní itt-Initiative 191, 305, 494, 504–509