The Forum September 2020

A Great and Beautiful Cathedral: The Brazilian Amazon Through the Lens of the Paris Climate Agreement

Kyle Markwardt J.D. Candidate, SMU Dedman School of Law, 2021; Staff Editor for the International Law Review Association

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Kyle Markwardt, A Great and Beautiful Cathedral: The Brazilian Amazon Through the Lens of the Paris Climate Agreement (2020) https://smulawjournals.org/ilra/forum/.

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A Great and Beautiful Cathedral: The Brazilian Amazon Through the Lens of the Paris Climate Agreement1 By: Kyle Markwardt2 March 6, 2020 The Paris Agreement on climate change represents perhaps the most inclusive and most liberal international agreement on preserving the earth’s environment. Brazil, which historically has attempted to conserve its natural ecosystems, continues to adhere to the requirements of the Paris Agreement, at least facially. Nevertheless, the election of the far-right Jair Bolsonaro to the presidency in 2019 set Brazil on a potential path toward overturning these prior commitments, specifically in the realm of deforestation in the Brazilian Amazon. Should the level of deforestation in Brazil reach even more concerning levels, the international community would need to consider various remedial measures, namely: international dispute resolution or suit before the International Court of Justice, domestic suits against the Brazilian government, the exercise of various amounts of hard and soft power, and the potential for UN action. As such, the international community must weigh various economic and political factors to craft a solution to this complex problem. I. Introduction Imagine you live in a heavily politically divided nation where the leaders of major political parties face scandalous accusations of corruption. Imagine further that a leader in a presidential race has vowed to undue countless progressive policies established by the prior administration while at the same time disparaging women and minorities. While observers in the United States might swear this is a reference to the daunting, and still contested, results of their own 2016 presidential election which saw the likes of Donald Trump win the White House, many Americans would likely be surprised to find out that their own situation has been eerily mirrored through the 2019 election of Jair Bolsonaro (“Bolsonaro”) as Brazil’s latest president. Bolsonaro, a former Brazilian congressman, strikes a divisive figure.3 He has been credited with many denigrating and audacious comments, such as declaring that a female congresswoman “did not deserve to be raped because she was ‘very ugly’” and stating his preference for his son’s death over finding out that a member of his family was homosexual.4 However, in a country rocked by recession and rising crime rates, the election of such of figure, for some, was not made lightly.5 Indeed, many Brazilian voters supported Bolsonaro as a form of protest against the prior Workers’ Party administrations.6 Luiz Inacio Lula da Silva (“Lula”), member of the Worker’s Party and president of Brazil between 2003 and 2011, was the initial front runner in this election, but Lula, and other members of the party, faced a wide reaching corruption

1 See Theodore Roosevelt Quotes, NAT’L PARK SERV., https://www.nps.gov/thro/learn/historyculture/theodore- roosevelt-quotes.htm (quoting Theodore Roosevelt, “[a] grove of giant redwood or sequoias should be kept just as we keep a great and beautiful cathedral”) (last visited Feb. 2, 2020). 2 J.D. Candidate, SMU Dedman School of Law, 2021; Staff Editor for the International Law Review Association. 3 Flora Charner & Marcia Reverdosa, Far-right candidate Jair Bolsonaro wins presidential election in Brazil, CNN (Oct. 29, 2018, 4:26 AM), https://www.cnn.com/2018/10/28/americas/brazil-election/index.html. 4 Id. at 4. 5 Id. at 1. 6 See id. at 5. 1 probe which ultimately presented enough evidence to sentence the former president to 12-years for corruption and money laundering.7 Despite the polarizing aspects of candidate Bolsonaro, President Bolsonaro, perhaps in homage to his far-right counterpart President Trump,8 began dismantling previous Brazilian policy. Crucially, Bolsonaro has taken steps to end the numerous protections over the Amazon which have existed for the past two decades and opened it up for commercial exploitation.9 He has accomplished this by “pull[ing] back on enforcement measures like fines, warnings[,] and the seizure or destruction of illegal equipment in protected areas” which has resulted in a decrease in twenty percent (20%) of such enforcement methods nationally.10 Additionally, the new administration cut the budget of Brazil’s environmental agency by twenty-four percent (24%).11 Importantly, even if a fine is assessed for an environmental infraction, nearly ninety-five percent (95%) of environmental fines are contested in court.12 Even now, Bolsonaro champions a governmental process which would allow a panel to “lower or suspend environmental penalties.”13 However, are the deregulatory efforts of the Bolsonaro administration justified? With the rise of globalization, many developing nations are attempting to find ways to grow competitively without resorting to the pollution-heavy practices previously utilized and now stigmatized by the so called “developed nations.”14 However, such efforts are difficult, especially when developing countries face potential retaliation for using the same methods developed countries used on their way toward industrialization.15 Indeed, the major developing nations (the BRICS) “assert the industrialized world should shoulder more responsibility for their historical emissions.”16 In this same vein, Bolsonaro argues that the usage and development of the Brazilian Amazon rests solely in the hands of the Brazilian government rather than foreign countries or international organizations.17 He believes international efforts to conserve the Amazon “are part of a global plot to hamper [Brazil’s] development.”18 In his own words, “Brazil is like a virgin that every pervert from the outside lusts

7 Id. 8 See generally David Roberts, The “Trump effect” threatens the future of the Paris climate agreement, VOX (Dec. 12, 2018, 3:28 PM), https://www.vox.com/energy-and-environment/2018/12/3/18123310/cop24-trump-paris- climate-agreement (opining that the so called “Trump effect” could embolden other leaders to pull out of the Paris Climate Agreement, which Bolsonaro has stated he would do). 9 Letícia Casado & Ernesto Londoño, Under Brazil’s Far-Right Leader, Amazon Protections Slashed and Forests Fall, N.Y. TIMES (July 28, 2019), https://www.nytimes.com/2019/07/28/world/americas/brazil-deforestation- amazon-bolsonaro.html. 10 Id. 11 Id. 12 Id. (stating Bolsonaro himself refused to pay an environmental fine which he received in 2012. The fine was rescinded after his swearing in as President in 2019.). 13 Id. 14 See generally Chloe Farand, UN chief’s climate asks fall flat in emerging economies, CLIMATE CHANGE NEWS (Aug. 14, 2019, 5:06 PM), https://www.climatechangenews.com/2019/08/14/un-chiefs-climate-asks-fall-flat- emerging-economies/. 15 Id. (showing an international push to pressure a diminution in coal usage despite coal forming a large part of developing countries energy mix). 16 Id. 17 See Casado & Londoño, supra note 8 (quoting Bolsonaro, “The Amazon is ours, not yours.”). 18 Id. 2 for.”19 Such international efforts, as argued by Onyx Lorenzoni (Bolsonaro’s chief of staff), “relativize[] Brazil’s sovereignty of the Amazon.”20 This Comment examines the role of current government-supported deforestation in Brazil with regards to the international Paris Climate Agreement. Part I discusses Brazil’s historical approach to climate change, specifically its efforts to decrease deforestation. Part II provides background on relative international efforts to address climate change before providing an overview of the Paris Climate Agreement and Brazil’s efforts thus far within the agreement. Part III proposes options for enforcing any Brazilian deforestation efforts by examining international case law, economic factors, and powers of international organizations. Ultimately, this issue presents a complex web of domestic and international policies with varying levels of enforceability such that any aggrieved party would need to balance various economic and political considerations before pursuing a theory of relief. II. Brazil’s Historic Effort at Containing Deforestation A. Factual and Legal Background While the actions of the Bolsonaro administration may come as a shock to some, especially those in the international community, historically, as will be shown in this section, Brazil has gone through various patterns of both deforestation and conservation. Further, it should come as no surprise, given the motives of the Bolsonaro administration discussed above, that the historical reasons for Amazonian development are greatly influenced by the tug-of-war between Brazilian identity and the fear of an overexerted international influence. Nevertheless, this section examines the attempts of the Brazilian government in recent years to establish, even if somewhat loosely, an innate protection mechanism for the Amazon. As some commentators note, there are wildly varying estimates at the total deforestation of the Brazilian Amazon, but some reports show that average deforestation in the 1980s was greater than two million hectares per year and a total of nearly eleven-and-one-half million hectares lost between 1966 and 1975.21 With the rise of satellite imaging, these estimates became more accurate but only slightly less daunting. For example, one NASA scientist concluded that six million acres of forest in the Brazilian state of Rodonia were destroyed over a four-year period in the 1980s.22 Similarly, another observer noted that “eight million hectares of forest were burned in the Brazilian Amazon in 1987 alone.”23 At the time, the Brazilian government estimated that over five percent (5%) of the forest was destroyed, but critics believe this number was deflated in order to benefit the government itself, with a true valuation of deforestation pegged closer to twelve percent (12%).24 While the world has not seen the total destruction of the Amazon as predicted by some watchdogs, the staggering rate of deforestation in the mid-twentieth century is relevant to conceptualize the potential resumption of deforestation efforts in our modern time.25

19 Id. 20 Id. 21 Henry McGee & Kurt Zimmerman, The Deforestation of the Brazilian Amazon: Law, Politics, and International Cooperation, 21 U. MIAMI INTER-AM. L. REV. 513, 521 (1990). 22 Id. 23 Id. at 522. 24 Id. 25 See id. at 521-22. 3

In the face of such large-scale efforts of deforestation, it is worth considering the variable motives which drive such decisions. In effect, both economic and social factors lie at the root of deforestation within Brazil.26 Initially, the rubber boom drove people to the Amazon in the late nineteenth century.27 Now, specifically, promotion of agribusinesses like ranching and soybean production as well as the desire to relocate Brazil’s largely costal population to the country’s interior have been the main drivers of deforestation.28 In the intervening years between the 1960s and 1990s, the Brazilian government instituted various programs which sought to develop the interior while encouraging emigration.29 But, at least in regards to deforestation, such efforts exacted a huge toll on the forests of Brazil with the main driver being the construction of roads to connect the newly formed outposts.30 Between two major projects, the POLONOROESTE and the PIN, more than 16,000 kilometers (nearly 10,000 miles) of highway road were constructed in the Amazon all the while promoting the development of the area surrounding the highways.31 Indeed, in 1980, estimates showed that road construction contributed to twenty-six percent (26%) of the nation’s deforestation figures, while small farming and interior development contributed another thirty-one percent (31%) together.32 The Brazilians were so dedicated to this ambitious developmental scheme that they even moved their capital and the entire functions of their government from the long established Rio de Janeiro to the entirely newly designed and constructed city of Brasilia.33 No doubt this massive construction project was undertaken, in part, to draw attention to the country’s interior.34 Despite the concerted effort of the Brazilian government to develop the country’s interior during the mid-twentieth century, it began to feel pressure from the Brazilian press and environmentalists to curb their destruction of the Amazon.35 Similarly, non-profit organizations began to work toward preservation of the Amazon with variable success.36 These conservation efforts, at least in part, led to the development of Brazilian law driven at protecting Brazilian forests.37 i. The Brazilian Constitution The Brazilian constitution, at least in part, represents a more liberal document when compared to its counterpart in the United States and includes an entire title dedicated to the preservation of social welfare.38 This version of the constitution which was adopted in 1988 (it can be assumed adoption was a response to the growing concern over deforestation in part) is “aimed at social well-being and justice”39 and designed to ensure the rights to “health, social security, and

26 See generally id. at 523; See also The Founding of Brasilia, Brazil, UMASS BOSTON BLOGS, http://blogs.umb.edu/buildingtheworld/founding-of-new-cities/the-founding-of-brasilia-brazil/ (last visited Jan. 20, 2020). 27 Id. 28 See id. 29 Id. at 524-27. 30 See id. at 525-27. 31 See id. 32 See id. at 527. 33 See The Founding of Brasilia, Brazil, supra note 25 (discussing how the ground up construction of the new capital began in 1956 to be finished four years later in 1960 when the government began to transition to the interior city). 34 See id. 35 See McGee & Zimmerman, supra note 20 at 528. 36 Id. at 529. 37 Id. at 530, 533. 38 See generally Constituição Federal [C.F.] [Constitution] tit. VIII, ch. VI, art. 225 (Braz.). 39 Id. at ch. I, art. 193. 4 assistance.”40 This title is extensive and incorporates various governmental guarantees from culture to sport to science and invariably includes a provision on the environment.41 Importantly, Chapter VI of the constitution guarantees the right to an ecologically-balanced environment where the Brazilian government has a duty to “defend and preserve [the environment] for present and future generations.”42 Duties ascribed to the Brazilian government include preservation of ecological processes, definition of territorial spaces which shall be ascribed special protection, the requirement of environmental impact studies for development projects, promotion of environmental education, and protection of flora and fauna at risk of extinction.43 The provision considers any activities which are harmful to the environment to be penal in nature and can subject violators to a duty to repair the damage they caused.44 Finally, and perhaps most importantly, the constitution specifically lists the Brazilian Amazon Forest as part of the “national patrimony” which guarantees that it will be used lawfully and in such a way as to “ensure the preservation of the environment.”45 ii. Brazilian Legislation However, as any American can attest, the lofty goals of a constitution are not always achieved without some statutory authority to expound on it. Consequently, Brazil has taken steps in the last two decades to elaborate on its environmental protections through the passage of various laws. The first of these environmental supplements was passed in 1998 and criminalizes various actions which might endanger or harm the environment (known as the Environmental Crimes Act).46 Specifically, the act criminalizes actions which destroy or damage forests within a permanent preservation like cutting trees within a permanent preservation without permission, receiving products like charcoal or timber from unlicensed purveyors, and hindering any natural regrowth of the forest.47 Importantly, the act makes specific prohibitions against the economic exploitation of the forest without proper authorization.48 The seriousness of the act, at least on paper, is only amplified in consideration of the targeted audience. Effectively, not only is the person who commits the crime liable, but the act includes language that extends liability to managers of the offender and people who know of the offender’s criminal intent but fail to prevent his action.49 Nevertheless, the act does offer some remediation in that low levels of intelligence or attempts to alleviate the damage may mitigate the potential penalty an offender faces.50 Still, the act itself imposes stiff penalties, many of which a company likely would hate to shoulder. These include: fines; restriction of operating rights which may include suspension of the work or prohibition from contracting with the government; or obligatorily rendering services to the community which may include funding environmental projects, maintaining public spaces, working to restore the affected areas, and paying toward

40 Id. at ch. II, art. 194. 41 See generally id. 42 Id. at ch. VI, art. 225. 43 See id. at ¶ 1. 44 See id. at ¶3. 45 See id. at ¶4. 46 See generally Lei No. 9.605, de 12 de Fevereiro de 1998, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 12.02.1998 (Braz.). 47 See id. at art. 38-39, 45-46, 48. 48 Id. at art. 50-A. 49 Id. at art. 2. 50 Id. at art. 14. 5 public environmental works.51 Finally, and perhaps more harshly, any legal entity which is used primarily to facilitate or conceal one of the crimes in the act faces a forced liquidation with the proceeds rendered to the government.52 While the goals and severity of the Environmental Crimes Act appear crystalline at first blush, the administrative enforcement procedures received some teeth in 2008 when President Lula da Silva promulgated a decree which expounded on Chapter VI of the 1998 act.53 Initially, the decree tracks the language of the Environmental Crimes Act by listing the possible infractions a violator could face.54 However, specifically applied to infractions against flora, the decree provides a concrete list of violations as well as their administrative penalties.55 The fines range from three hundred Brazilian reais to fifty-thousand Brazilian reais per hectare and seek to punish many of the criminal actions outlined in the 1998 act.56 So in conjunction, the Environmental Crimes Act and the 2008 decree provide steep criminal penalties as well as administrative fines which seek to protect the nation’s forests. Next, in response to the international Kyoto Protocol which is discussed later in this paper, Brazil passed its National Policy on Climate Change (“PNMC”) in 2009.57 While the law itself does not explicitly mention deforestation, it is important because it lays the ground work for Brazil’s actions under the Paris Agreement.58 Importantly, the PNMC presumes that the government should support sustainable development as well as recognize precautionary principles in consideration of combating climate change.59 These principles include the premise that everyone should take action to protect the environment for current and future generations while accounting for different socio- economic backgrounds.60 The weighing of individual responsibility based on ability and socio- economic factors becomes important in consideration of the Paris Agreement as well as Brazil’s protestations against international influence in the Amazon which have already been discussed.61 Regardless, the law commits Brazil to the “preservation, conservation, recovery, and rehabilitation of environmental resources, with particular attention to the large natural biomes. . . .” which includes incentivizing reforestation.62 And, in an effort to put the money where the Brazilian government’s mouth is, the law requires that “official financial institutions” extend lines of credit to induce private parties to further implement the PNMC.63 Similarly, when compared to the 2008 presidential decree and its substantial addition to the Environmental Crimes Act, the PNMC was also supplemented by a subsequent law. This

51 Id. at art. 21-23. 52 Id. at art. 24. 53 See generally Decreto No. 6.514, de 22 de Julho de 2008, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 22.7.2008 (Braz.). 54 Compare Lei No. 9.605, supra note 46 at art. 72 with, Id. at art. 3. 55 See generally Decreto No. 6.514, supra note 53 at art. 43-60. 56 Id. (For example, damaging forests can carry a fine of 5,000 to 50,000 reais per affected hectare (art. 43), while receiving products of vegetable origin without confirming the vendor is licensed carries a fine of 300 reais per unit received (art.47).). 57 See generally Lei No. 12.187, de 29 de Dezembro de 2009, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 29.12.2009 (Braz.). 58 See generally id. 59 Id. at art. 3. 60 See id. 61 See id.; see Casado & Londoño, supra note 8. 62 Lei No. 12.187, supra note 57 at art. 4, VI-VII. 63 Id. at art. 8. 6 supplementary law, in large part, seeks to promote cooperation between the various levels of Brazilian government in order to reach the goals of the PNMC.64 As such, the law tasks the national government with executing the PNMC while promoting integration of PNMC specific programs between the national government, states, and municipalities.65 Additionally, the state governments must enforce the PNMC, as dictated by the national government, within their own borders and also strive toward integration with national efforts from their side.66 While the law itself limits enforcement to actions taken after its effective date, it seems to be a positive step toward developing a type of cooperative federalism with which to combat climate change.67 Perhaps the last major statutory implementation for the Brazilian government, prior to signing the Paris Agreement, came from the application of the so-called Forest Code in 2012.68 The Forest Code “establish[ed] general rules on vegetation protection, Permanent Preservation areas, and Legal Reserve areas.”69 Through its enactment, Brazil reaffirmed its “commitment to the preservation of its forests” through sustainability.70 Interestingly, the Forest Code recognizes that “useful” forests are common assets to every Brazilian citizen, and it further notes that any uses of vegetation that go against the Code may be criminal or subject to administrative penalties.71 In outlining its protection measures, the Code focuses initially on Permanent Preservation areas which effectively are those lands traditionally recognized as riparian.72 The Code further allows for the president to list certain lands as Permanent Preservation areas should he decide that the lands in question fit within a statutorily defined list.73 The Code forces owners of lands within a Permanent Preservation area to take responsibility for its conservation and regrowth.74 Similarly, the designation of land as a Legal Reserve requires that the land owner fall within compliance of the Code.75 The Forest Code requires that a certain percentage of a property retains native vegetation cover as a Legal Reserve.76 Importantly, the Code requires that any property within the Legal Amazon retain native vegetation on eighty percent (80%) of the property if it is within a forested area.77 Implicitly, that means the government will allow for the development of twenty percent (20%) of the forested Amazon. In this way, the Brazilian government extended its efforts at codifying conservation. iii. Private Contractual Efforts Despite the efforts of the Brazilian government to curb deforestation, private groups, including landowners and companies, have formed extra-legislative agreements targeted at reducing two

64 See generally, Lei Complementar No. 140 de 8 de Dezembro de 2011, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 08.12.2011 (Braz.). 65 See id. at art 7. 66 Id. at art. 8. 67 Id. at art 18 (showing that licenses are still valid if they were obtained prior to the passing of this law). 68 See generally Lei No. 12.651, de 25 de Maio de 2012, DIÁRIO OFICIAL DA UNIÃO [D.O.U.] de 25.05.2012 (Braz.). 69 Id. at art. 1a. 70 Id. at art. 1a, I-II. 71 Id. at art. 2. 72 See id. at art. 4 (describing, for example, how land within one hundred meters from a watercourse that is fifty to two hundred meters wide is a Permanent Preservation Area and therefore protected under the Code). 73 Id. at art. 6 (listing, for example, sites of “exceptional beauty or of scientific, cultural, or historic value” as lands which the president can declare as a Permanent Preservation area). 74 Id. at art. 7. 75 Id. at art. 17. 76 See id. at art. 12. 77 Id. (the Legal Amazon is defined in art. 3 of the Forest Code). 7 main drivers of deforestation: namely, soy production and cattle raising. In order to combat deforestation attributed to soy production, industry leaders, producers, and the government created the Soy Moratorium which prohibits selling soy that was produced through deforestation in the Brazilian Amazon.78 As ABIOVE, the Brazilian Association of Vegetable Oils Industry, outlines in their 2018 report regarding the Soy Moratorium, “[t]he Soy Moratorium is a commitment undertaken by the productive sector to produce deforestation-free soy in the Amazon Biome, promoting the environmental sustainability of the Soy Chain on the domestic and international markets.”79 By some reports, newly deforested areas within the Amazon have increased by only 0.8 percent (0.8%) despite committing more than two million more hectares toward soy production within the last decade.80 Similarly, cattle producers, meatpackers, and the federal government created agreements called Terms of Adjusted Conduct (“TAC”) by which animals could not be sold for slaughter if they were raised on Amazonian land that was unlawfully cleared.81 However, these agreements are not blanket prohibitions across the entire industry.82 Instead, the agreements represent individual commitments from a group of actors and outline the specifications of their own conservation efforts.83 Regardless of the effort, either statutorily or through private contract, it is apparent that Brazil, at least on its face, has committed itself to the preservation of one of the most important natural landscapes on our planet. The last couple of decades saw the introduction of ever-expanding legislation designed to protect the Amazon while private enterprise, perhaps due to international pressure, similarly has implemented its own regulations to combat deforestation. Still many commentators are concerned that these efforts are merely facial constraints in an effort to console the outside world.84 B. Brazil’s Current State of Deforestation Given the threat of administrative penalties, criminal classification, and potential industry ostracism, you might wonder why deforestation within Brazil is still such a pressing matter. Well, commentators generally agree that a combination of economic factors as well as an impotent bureaucracy largely contribute to a diversion of both the statutory prohibitions and the extra- legislative agreements.85 Consequently, the remedies of these diversions likely are not apparent and would probably require the efforts of many groups to generate effective enforcement. At least

78 See Rodrigo Estrada, Brazilian Soy Moratorium Renewed Indefinitely, GREENPEACE (May 9, 2016), https://www.greenpeace.org/usa/news/brazilian-soy-moratorium-renewed-indefinitely/. 79 The Soy Moratorium Report 2018, ABIOVE, http://abiove.org.br/wp-content/uploads/2019/01/Soy-Moratorium- Report-2018.pdf (last visited Jan. 25, 2020). 80 Estrada, supra note 78. 81 See William D. Carvalho, Vivianne Eilers, Philip M. Fearnside, Renato R. Hilario, Karen Mustin & Ivan M. Vasconcelos, Deforestation control in the Brazilian Amazon: A conservation struggle being lost as agreements and regulations are subverted and bypassed, 17 PERSPECTIVES IN ECOLOGY AND CONSERVATION 122 (2019). 82 See e.g., NF 1.18.001.000721/2019-38, de 17 de Dezembro de 2019, Termo de Ajustamento de Conduta, 17.12.2019 (Braz.). 83 See generally id. 84 See generally Carvalho et al., supra note 81. 85 See generally Dana Miller, Lessons from Brazil on how to turn companies’ zero-deforestation commitments into action, ENV’T DEF. FUND BLOG (Sept. 14, 2016), http://blogs.edf.org/climatetalks/2016/09/14/lessons-from-brazil- on-how-to-turn-companies-zero-deforestation-commitments-into-action/. 8 for now, it is worth considering the manner in which deforestation occurs in Brazil in spite of the lengthy efforts to curb such activity. Generally, it is agreed that deforestation within the Amazon “declined dramatically between 2004 and 2012. . . .”86 Indeed, one estimate shows that Brazil reduced Amazon deforestation by seventy- five percent (5%) in those years.87 However, seventy percent (70%) of that decrease occurred between 2004 and 2007, and at least one group of commentators firmly attributes the cause of the decrease during this time to unfavorable exchange rate fluctuations.88 Their hypothesis acknowledges that a depreciating Brazilian Real fell sharply against the U.S. dollar which caused soy and beef profits to decrease proportionately.89 In essence, the decreased profits resulted in less deforestation as fewer people sought to clear forests for soy or beef production. Nevertheless, since 2012, deforestation rates in Brazil have fluctuated wildly.90 Even so, the Brazilian Amazon seems to fair better than other forested biomes within the country which typically cause the general deforestation rate to rise.91 i. Efforts to Avoid Regulation Effectively, within the last few years, the soy, beef, and lumber industries in Brazil have found ways to circumvent the regulations placed upon them.92 Under the Soy Moratorium, producers both launder their soy product and generate so called “leakage.”93 Laundering involves obscuring the origin of the soy from the purchaser by either selling the soy as if it was grown in an lawful area or using the documentation of “regularized” land owners as a front.94 Conversely, leakage involves growing soy on a lawful piece of property and then deforesting an adjacent plot for other, potentially unregulated, uses.95 Innately, leakage also succumbs to market forces. As soy becomes a more profitable enterprise, ranchers sell their property to soy producers and then buy new plots elsewhere which they then clear for pasture.96 Despite these adverse effects of the Soy Moratorium, the Amazon itself seems to have benefited from a decreased deforestation rate, but as discussed, the surrounding regions tend to suffer as no such regulation is in place to protect them.97 Similarly, the TAC scheme also faces a problem of laundering which is directly related to that of the Soy Moratorium.98 Ranchers raise cattle on plots that contribute to deforestation and then shift them to lawful plots before sale.99 The beef purchaser, like the soy purchaser, only tracks the final

86 Carvalho et al., supra note 81. 87 See Miller, supra note 85. 88 Carvalho et al., supra note 81. 89 Id. 90 See id. (citing a sixteen percent decrease in forest loss between 2016-2017 but a twenty-nine increase in clearing rates between 2015-2016). 91 See id. (citing a forty-seven percent higher deforestation rate in the neighboring Cerrado biome in 2015). 92 See generally id.; Karla Mendes & Elisângela Mendonça, Enforce Brazilian laws to curb criminal Amazon deforestation: study, MONGABAY (Nov. 4, 2019), https://news.mongabay.com/2019/11/enforce-brazilian-laws-to- curb-criminal-amazon-deforestation-study/. 93 Id. 94 Id.; Mendes & Mendonça, supra note 92. 95 Id. (noting that this process generally involves using pasture land that was cleared before 2008 for soy production and then clearing other land for new pastures). 96 Id. 97 See id. 98 See Mendes & Mendonça, supra note 92. 99 Id. 9 sale and therefore fails to catch that he has purchased beef raised as a product of deforestation.100 Ranchers also seek out beef purchasers who have not signed a TAC, which therefore do not fall under the obligation to avoid cattle raised on deforested land.101 In this way, non-signatories avoid the costs of regulation which is an implicit incentive not to sign a TAC at all.102 Additionally, international markets, like that of China, do not concern themselves with the specific origin of cattle thus disincentivizing signing a TAC entirely.103 Finally, ranchers may also only register the non-deforested parts of their land with the regulating authority and in that way both falsify and circumvent regulation.104 Consequently, the lumber industry also subjects itself to fraud.105 As commentators note, this fraud occurs in two ways.106 First, like the laundering within the Soy Moratorium, loggers, acting illegally, purchase the valid credentials of locals within a government designated extraction zone and use those credentials to sell lumber that was cut elsewhere.107 Second, loggers overestimate the amount of desired trees within any given area and then tag trees that were cut outside of the area as if they were cut legally within the extraction zone.108 As noted, the current Brazilian system of enforcing efforts to curb deforestation are riddled with fraud and bureaucratic subversion. Driven by the relative lax oversight and the value of producing these materials, fraudsters have helped reignite the push toward deforestation within Brazil. ii. Potential Domestic Solutions Regardless of the issues highlighted above, some commentators believe that Brazil can mitigate the situation by implementing domestic changes to curb the fraudulent production of materials that lend to deforestation while also reducing the impact of the bureaucracy.109 These changes rely mainly on promoting greater integration between Brazilian governmental systems and enhancing transparency regarding the production of materials.110 The main argument regarding integration involves connecting various regulatory devices in an effort to generate greater efficiency and also establishing relevant authorities who are empowered with necessary oversight.111 First, as an example of facilitating greater connectivity, Carvalho argues that the CAR, the system by which rural land is registered with the federal government, should be integrated with the GTA, which is a permit which obligates certain hygiene checks on animals in transit.112 This would allow producers and transporters to track cattle from their source and thus avoid the cattle laundering which is subverting the TAC scheme.113 Secondly, as an example of creating greater oversight,

100 See id. 101 Carvalho et al., supra note 81. 102 See generally id. 103 See generally id. 104 See id. 105 See Mendes & Mendonça, supra note 92. 106 Id. 107 See id. 108 Id. 109 See Carvalho et al., supra note 81. 110 See id. 111 See generally id. 112 Id. 113 Id. 10

Carvalho argues that administrative authorities should step up to create processes by which they can effectively monitor factors which contribute to deforestation.114 The secondary, although some would argue more effective,115 argument involves generating more transparency regarding the origin of products so that consumers can make an informed decision about their purchases.116 This argument relies on the theory that a conscious consumer would oppose products that were produced in violation of the law and thus influence producer decisions to come into compliance, thereby reducing deforestation.117 Consequently, even if direct consumers do not adjust their behavior, the efforts of large corporations could take their place by insisting that the products they purchase through their supply chains meet regulatory requirements.118 While these corrective efforts may seem somewhat ineffective, especially in light of the current administration’s efforts to promote deforestation, there are some potential international solutions which are discussed later in this paper. III. Brazil’s Role Within International Efforts to Curb Climate Change A. Background Those in a younger generation who constantly hear about the escalating tensions of an ever- impending climate crisis can be forgiven for believing that the world’s interest in the environment started in 2006 with Al Gore’s noteworthy documentary An Inconvenient Truth.119 Indeed, for the religious reader, humanity’s charge with protecting the environment began from our first collective breath.120 Still, it is only in recent decades that independent governments, let alone the international community, began taking deliberate and purposeful steps toward meaningful environmental regulation.121 i. U.S. and International Law Leading to the Paris Agreement Keeping our frame of reference on the United States, it is generally agreed that “modern environmental law began in the [1960s].”122 Having survived the first two industrial revolutions and then two world wars, human development (and destruction) began visibly altering our environment for the worse.123 Not only was the air quality in certain cities notoriously poor, but

114 See id. (pointing to the National System for the Control of the Origin of Forest Products which was created and facilitated by the Brazilian Institute for the Environment and Renewable Natural Resources which is the administrative arm of the Brazilian Ministry of the Environment). 115 See Mendes & Mendonça, supra note 92. 116 Id.; see Carvalho et al., supra note 81. 117 See generally Carvalho et al., supra note 81. 118 Id.; Mendes & Mendonça, supra note 92. 119 See An Inconvenient Truth Then and Now: What’s Changed for Our Climate Since 2006?, THE CLIMATE REALITY PROJECT BLOG, (Jan. 17, 2017, 12:00 PM), https://www.climaterealityproject.org/blog/inconvenient-truth- then-and-now. 120 See Genesis 1:26, 28 (“Then God said, ‘Let Us make man in Our image, according to Our likeness; let them have dominion over the fish of the sea, over the birds of the air, and over the cattle, over all the earth and over every creeping thing that creeps on the earth.” . . . Then God blessed them, and God said to them, ‘Be fruitful and multiply; fill the earth and subdue it; have dominion over the fish of the sea, over the birds of the air, and over every living thing that moves on the earth.’”). 121 See generally 1 Treatise on Env’t L. § 1.01 (2019); Edith Brown Weiss, The Evolution of International Environmental Law, 54 JAPANESE Y.B. INTL. L. 1 (2011). 122 Id. 123 Id. 11 also various oil spills tainted the coastlines of several states.124 Consequently, the U.S. Congress passed the first permanent bill to target water pollution in 1956 and followed that up by passing the first permanent law to combat air pollution in 1963.125 Additionally, between 1970 and 1973, the number of national environmental organizations more than doubled.126 This new environmental movement was grounded in a confluence of both the desire to protect the public health and the desire to protect scenic and natural resources for future generations.127 And it is in this spirit of the early 1970s that international approaches toward protecting the environment begin to bloom.128 Prior to 1900, “[t]he prevailing rule of international law was that of national sovereignty over natural resources within a country's territory or jurisdiction” and focused mainly on resolving issues related to water boundaries and fishing rights.129 In the middle of the twentieth century, countries began brokering agreements to protect certain plants and animals in the Western Hemisphere before focusing more on the environmental impact of oil and nuclear pollution later. By 1972, environmental issues were ready to take center stage on the international agenda with the U.N. Conference on the Human Environment in Stockholm which represented “the first international intergovernmental conference to focus on environmental problems.”130 Interestingly, as already noted, the Conference attempted to address the concern among developing countries that any effort to protect the environment would negatively affect their own efforts toward industrialization.131 Importantly, the Conference set forth the idea that nations can utilize natural resources within their own borders and subject to their own environmental standards so long as they do not affect the environment of other nations.132 Twenty years after Stockholm, more than 1,100 international legal agreements spoke to regulating the environment.133 These new agreements became more complicated and started to focus more on conserving whole ecosystems, while also imposing greater restrictions within sovereign borders.134 Then, in 1992, the international community again gathered to reinvigorate the fight for conservation, this time to commemorate and reaffirm their commitment to the initial Stockholm Conference.135 Of special relevance to this paper, the Rio Conference created the U.N. Framework Convention on Climate Change (“FCCC”) which would go on to produce agreements that ultimately laid the groundwork for the Paris Agreement.136 Nevertheless, both conventions failed to establish quality enforcement mechanisms such that “international environmental law related to liability has still languished. . . .”137 As Weiss notes, the commitment to these so called “soft” laws may depend both on their ease and expediency while being able to circumvent any actual binding obligations.138

124 See id. 125 Id. 126 Id. 127 See id. 128 See Weiss, supra note 121. 129 Id. at 2. 130 Id. at 4. 131 See id. 132 See id. at 5. 133 Id. at 6. 134 Id. at 8. 135 See id. at 10. 136 See id. 137 Id. at 23. 138 See id. at 24. 12

The international community took its first solid steps toward the eventual Paris Agreement in 1998 with the adoption of the Kyoto Protocol which solidified and expanded on the FCCC.139 Effectively, the Kyoto Protocol set a goal to reduce the emission of greenhouse gases to five percent (5%) below levels recorded in 1990.140 Importantly, the treaty tasks countries with promoting “sustainable forest management practices. . . and reforestation,” promoting forms of sustainable agriculture, and ending fiscal incentives provided to greenhouse gas-emitting economic sectors.141 To this end, countries were expected to share information in the hope of “improving their comparability, transparency, and effectiveness.”142 Within a year from the start of the first commitment period, signatories had to create a national system that could estimate the emission levels of polluting sources as well as the potential removal levels of greenhouse sinks.143 Interestingly, the treaty seems to propose a type of carbon trading scheme by which countries could transfer “emission reduction units” for completing projects that either reduce greenhouse gases or improve sinks.144 Behind all of this rested the idea that developed countries should conduct themselves toward their goal “in such a way as to minimize adverse social, environmental, and economic impacts on developing countr[ies]. . . .”145 Finally, and perhaps of less consequence, the Kyoto Protocol allowed for countries to withdrawal from the treaty but only after three years had passed from its adoption by said countries.146 Next came the so-called “Cancun Agreements” which reaffirmed the international community’s dedication to the FCCC and the underlying Kyoto Protocol so as to extend its efforts beyond the year 2012.147 In contrast to the Kyoto Protocol, which, although unenforceable, provided certain tasks for signatory countries to follow, the Cancun Agreements read as a soft affirmation of previous efforts and provide no true sustenance beyond the occasional elaborative explanation.148 Of particular importance is the Agreements’ dedication to aiding developing countries and its explicit recognition of the developing world’s need to combat economic and social challenges before tackling the problem of climate change.149 The Agreements speak specifically to developed countries’ obligation to beef up their own emission reduction schemes while also providing technology and financial resources to developing countries so as to help them reach their own goals.150 In order to achieve such a lofty goal, the Agreements attempt to create an “adaption framework” and “invite” countries to take a variety of actions like conducting research regarding its implementation and increasing public education so as to better achieve the goals of the Agreements.151

139 See generally Kyoto Protocol to the United Nations Framework Convention on Climate Change, U.N. Doc. FCCC/CP/1997/7/Add.1 (1997) [hereinafter Kyoto Protocol]. 140 Id. at art. 3. 141 See id. at art. 2. 142 Id. at art. 2(1)(b). 143 Id. at art. 5. 144 See id. at art. 6(1), art. 3 & art. 12(2)-(3). 145 See id. art. 3(14). 146 Id. at art. 27. 147 See generally United Nations Framework Convention on Climate Change, Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, U.N. Doc. FCCC/CP/2010/7/Add.1 (2011) [hereinafter The Cancun Agreements]. 148 Cf. id. with Kyoto Protocol, supra note 139. 149 See The Cancun Agreements, supra note 147 at preamble. 150 See id. at art. I, ¶ 2(a), (c); Id. at art II, ¶ 18. 151 See id. at art. II, ¶¶ 13-14. 13

Regarding the Cancun Agreements’ attempt to curb deforestation, it particularly “encourages” all parties to “reduce the human pressure on forests. . . including actions to address the drivers of deforestation.”152 Considering the conditions of developing countries, the Agreements ask that these nations reduce emissions from deforestation and forest degradation and establish sustainable forest management systems.153 In order to achieve this, developing countries need to create a national strategy and an estimation of the national forest emission levels including an effective and transparent forest monitoring system.154 The Agreements include, as an appendix, a list of “safeguards” which must be considered when implementing paragraph 70, but the list itself is inconclusive and provides only broad guidance without any helpful recommendation or prohibition.155 Regardless, while both the Kyoto Protocol and the Cancun Agreements likely fit within Weiss’s “soft laws” category, they provide a fertile background for understanding both the economic and social initiatives which ultimately find themselves cloned in the Paris Agreement. ii. The Paris Agreement Indeed, the Paris Agreement itself begins with an affirmation that climate change is a problem for all of humanity, and therefore, all of humanity should be considered when combating climate change.156 Again, the Paris Agreement professes that the international community must take into consideration both the needs of developing nations and the responsibility of developed nations to assist those less developed.157 Further, the preamble “emphasizes” the impact that climate change has on developing countries’ growth and their attempts to end poverty.158 So, within the first few paragraphs, the Paris Agreement takes the goals, if not the exact words, of both the Kyoto Protocol and the Cancun Agreements.159 The real meat of the Agreement stems from the second article which sets a target to keep global temperatures from rising more than two degrees Celsius.160 But the same article sets out the general and difficult task of accounting for differing national circumstances in its implementation, which is a direct call back to the previous treaties effected under the FCCC.161 In an effort to provide an actual mechanism of enforcement, the Agreement requires that each signatory prepare a “nationally determined contribution” (“INDC”) reflecting its “highest possible ambition” and provides less stringent language that allows developing nations to lag behind of economy-wide emission reductions.162 These nationally determined contributions should be amended every five years, can be updated at any time if a country is strengthening its ambition, and, perhaps most importantly, are publicly recorded.163 Next, the Agreement calls back directly to the Cancun Agreements by “encouraging” countries to promote policy incentives that would curb emissions

152 Id. at art. III, ¶ 68. 153 Id. at ¶ 70. 154 Id. at ¶ 71. 155 See id. at appendix I, ¶ 2. 156 See The Paris Agreement to the United Nations Framework Convention on Climate Change, art. 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 2], preamble. 157 See id. 158 Id. 159 See generally id. 160 See id. at art. 2. 161 Id. at ¶ 2. 162 United Nations Framework Convention on Climate Change, art. 4, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 4], ¶¶ 1-4. (noting the mandatory language of “shall” when dictating guidance on the nationally determined contributions). 163 Id. at ¶¶ 8-9, 11-12. 14 from deforestation and forest degradation and establish sustainable forest management systems.164 Similarly, in an effort to promote integration, countries are encouraged to contribute to each other’s mitigation efforts through financial means and technology transfers, which are both invoked by earlier treaties.165 Additionally, article 12, in its single paragraph, asserts the importance of education and public awareness around climate change.166 As a final note on the similarities of the Paris Agreement and the two treaties discussed above, the Agreement also allows for a voluntary withdrawal after three years from the date a country adopted the Agreement.167 The Paris Agreement does take a unique stance on transparency which expands on the underlying themes of the prior treaties.168 Specifically, the Agreement creates an actual transparency mechanism and reporting arm through which countries must account for their progress.169 The transparency mechanism includes “national communications, biennial reports and biennial update reports, international assessment and review[,] and international consultation and analysis. . . .”170 Each signatory must report “[a] national inventory report” which tracks emission sources and removals from sinks, and each report is subject to a technical review which analyzes its implementation of the Agreement against its nationally determined contribution.171 Secondly, the Paris Agreement provides for another mechanism that is designed to enforce the overall goals of the Agreement rather than just transparency.172 The mechanism is to be made up of a committee of experts and invests in that committee undefined facilitative powers.173 Importantly, the committee must function in a “transparent, non-adversarial, and non-punitive” way.174 Finally, the committee must report annually to the FCCC.175 Other than these very loose definitions, the Agreement does not invest specific powers or duties in the facilitative oversight mechanism.176 While the Paris Agreement does invoke some novel applications of international environmental law, some commentators argue that it is ineffectual for a variety of reasons.177 Cass argues that emission controls are only facially on the negotiating table and, in reality, most countries will do very little to curb emissions.178 Given that the Paris Agreement resembles very closely the treaties of the past, functioning in effect as an affirmation of those that came before it, it stands to reason that the Paris Agreement would generate the same results (or failures) of both the Kyoto Protocol

164 Cf. United Nations Framework Convention on Climate Change, art. 5, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 5], ¶ 2 with The Cancun Agreements, supra note 147 at ¶ 70. 165 Article 5, supra note 164 at art. 6, ¶ 8. 166 See United Nations Framework Convention on Climate Change, art. 12, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 12]. 167 United Nations Framework Convention on Climate Change, art. 28, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 28]. 168 See generally United Nations Framework Convention on Climate Change, art. 13, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 13]. 169 See id. 170 See id. at ¶ 4. 171 See id. at ¶ 8, 11-12. 172 See United Nations Framework Convention on Climate Change, art. 15, Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Article 15]. 173 Id. at ¶ 2. 174 Id. 175 Id. at ¶ 3. 176 See generally id. 177 See generally Oren Cass, Why the Paris climate deal is meaningless, POLITICO (Nov. 12, 2015, 5:22 PM), https://www.politico.eu/article/paris-climate-deal-is-meaningless-cop21-emissions-china-obama/. 178 See id. 15 and the Cancun Agreements.179 Cass however, takes it a step further, noting that developing countries blocked both an article to the Agreement which would have required that INDCs bare a common format and an “obligatory review mechanism for increasing individual efforts of developing countries.”180 This effectively means that INDCs could avoid mentioning emission levels entirely while allowing developing countries to decide their own emission levels free of contestation.181 Couple this with the fact that some countries are grossly underestimating their ambitions for their emission targets, and the Agreement lends toward being completely ineffectual.182 Additionally, given that the Agreement has no true enforcement mechanism for which to discourage the over-polluter, the agreement becomes wholly voluntary and practically “unnegotiable.”183 While one could presume that the Agreement represents a political victory, relying on such a soft law which depends on “naming and shaming” the uncommitted nations may not render tangible results.184 B. Brazil’s Efforts to Operate Within the Paris Agreement Despite the intrinsic weaknesses of the Paris Agreement, Brazil, at least up until now, has voluntarily complied with some of the Agreements reporting components and, at least facially, has committed to the underlying goals of the Agreement.185 As reporting under the agreement, at least for Brazil, is largely retroactive, it remains to be seen if the work the country has done up until now will be hampered by the Bolsonaro administration.186 Still Brazil’s latest efforts under the Agreement are worth examining because they offer an international conduit through which Brazil enforces its own domestic policies. 187 i. Details of Brazil’s INDC Indeed, Brazil begins its own INDC by stating that all actions taken toward the implementation of the INDC are controlled by both the Brazilian National Policy on Climate Change and the Brazilian Forest Code.188 Having already examined the weaknesses of both these policies under an unenthusiastic administration, the general accuracy of any Brazilian efforts toward implementing the INDC may be called into question. Regardless, the document sets out two contribution level goals with 2005 as the base year: the first includes a reduction of greenhouse gases by thirty-seven percent (37%) by the year 2025, and the second places a targeted reduction of forty-three percent

179 See Sarah Pruitt, Here Are 6 Things Albert Einstein Never Said, HISTORY (Apr. 7, 2017), https://www.history.com/news/here-are-6-things-albert-einstein-never-said (stating that the famous definition of insanity as doing the same thing over and over against and expecting different results was incorrectly attributed to Albert Einstein but its relevance remains potent just the same). 180 Cass, supra note 177. 181 See id. 182 See id. (stating that China’s target was less ambitious than if it would have just continued “business as usual” and showing data that reveals no improvement in emissions levels when compared to 2000 levels). 183 See generally Article 2, supra note 156; Cass, supra note 177. 184 See id. 185 See generally Intended Nationally Determined Contribution Towards Achieving the Objective of the United Nations Framework Convention on Climate Change (2014), https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20F INAL.pdf [hereinafter INDC]. 186 See generally Brazil’s Third Biennial Update Report to the United Nations Framework Convention on Climate Change (2019), https://unfccc.int/sites/default/files/resource/2018-02-28_BRA-BUR3_ENG_FINAL.pdf [hereinafter Third Biennial Report]. 187 See generally INDC, supra note 185. 188 Id. at 1. 16

(43%) by 2030.189 Importantly, Brazil notes that its efforts to curb emissions are economy wide which was a major target point for the Paris Agreement.190 Another potential positive sign from the INDC is Brazil’s commitment to developing a “National Adaptation Plan” (“NAP”) by which it intends to promote research and technological development in order to work toward its contributions within the Paris Agreement while also promoting national development.191 Similarly, Brazil indicated that it could achieve its contribution without foreign aid, but it does note that the implementation of certain forest monitoring technology would require “predictable results-based payments.”192 This qualification becomes important in the final section of this paper. Additionally, Brazil provided an explanatory addendum to its INDC which offers interesting, perhaps probative, qualifications to its contribution efforts.193 Perhaps most interesting is the fact that the addendum draws attention to Brazil’s current “voluntary” commitment despite the declaration in the main document that Brazil “intended” for its new contribution to represent a potentially legal and binding document.194 Should the additional contribution under the Agreement merely be included in their current voluntary contributions then any binding aspects of Brazilian contributions may immediately be called into question.195 Alternatively, perhaps the most relevant qualification in the addendum is Brazil’s recognition of the importance of deforestation as a contributor toward greenhouse gas emissions.196 In fact, the addendum praises Brazil for its deforestation reduction efforts between 2004 and 2014 (which were already discussed above) before stating that it would adopt measures to further combat deforestation, all of which are in jeopardy under the current administration.197 Finally, as a last tip of the hat to the policy considerations which have appeared throughout this paper, Brazil notes that “[its] mitigation efforts are of a type, scope, and scale at least equivalent to the iNDCs of those developed countries most responsible for climate change” such that its efforts are “far more ambitious than what would correspond to Brazil´s marginal relative responsibility for the global average temperature increase.”198 ii. Contrasting Brazil’s First and Third Biennial Reports Following the transparency guidance of the Paris Agreement, Brazil has submitted three biennial update reports which analyze its emissions output over a set number of years with specific focus on deforestation in the Amazon.199 Importantly, each report looks at emissions data which is at least four to five years old.200 Consequently, the latest report, which was submitted in 2019 and was the first submission under the Bolsonaro administration, provides little hard data on the current

189 Id. at 1-2. 190 Id. 191 Id. at 3. 192 Id. at 3-4. 193 See generally id. (additional information on the INDC). 194 See id. at 2. 195 See generally id. 196 Id. at 2-3. 197 See id. at 3 (including strengthening the implementation of the Forest Code, installing measures to achieve zero illegal deforestation in the Brazilian Amazon by 2030, and reforesting 12 million hectares of forest by 2030). 198 Id. at 6. 199 See generally First Biennial Update Report of Brazil (2014), https://unfccc.int/sites/default/files/resource/brbur1.pdf.; Third Biennial Report, supra note 186. 200 See generally First Biennial Update Report of Brazil, supra note 199. 17 rate of deforestation within the Brazilian Amazon.201 Regardless, the juxtaposition of the first and last update report provides some insight into the Brazilian government’s stance on deforestation.202 Brazil submitted the First Biennial Update Report (“the report”) in December of 2014, and as mentioned, it provides hard data on emissions for the years 1994 and 2000 to 2010.203 The first section of the report attempts to highlight the national circumstances of Brazil (many of which have already been highlighted in the paper), but the report specifically notes that Brazil only intends to act toward its emissions goals voluntarily.204 The report takes a snapshot of emissions levels showing an increase of 515,520 gigagrams (Gg) of carbon dioxide emissions between 1994 and 2000.205 It also provides that emissions of carbon dioxide dropped by 934,153 Gg between 2000 and 2010 and explicitly credits the reduction to the decreased deforestation rates in the Amazon between those years.206 As proof of these decreased deforestation rates, Brazil boasts to the specific achievements of its Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm), which was utilized as an instrument within the PNMC.207 Between 2004-2013, Brazil notes that under the PPCDAm it created 50 million hectares of “conservation units” on federal land, established its satellite monitoring system, and invested $2.6 billion dollars in research and technology in the Biotechnology Center for the Amazon – among other things.208 However, the report also notes that the PPCDAm can be improved, specifically through greater integration of enforcement mechanisms between the federal and state governments (as already discussed), further research, and increased foreign investment in technology.209 Of particular importance to this paper, the report also provides a Technical Annex (“the annex”) which provides specific details around Brazil’s efforts to curb deforestation.210 Crucially, the Technical Annex provides specific data to support the premise that both deforestation rates and emissions from deforestation declined steadily between 2004 and 2010.211 The rest of the annex provides a detailed scientific analysis to support its calculations of deforestation rates as well as the specifics of its satellite system (PRODES)212 which becomes important again in the FCCC’s analysis of the annex.213 In contrast, Brazil’s Third Biennial Update Report (“the third report”) reads largely like a incohesive data dump with no clear delineation between points within sections and large

201 See generally Third Biennial Report, supra note 186. 202 Cf. First Biennial Update Report of Brazil, supra note 199 with Third Biennial Report, supra note 186. 203 See First Biennial Update Report of Brazil, supra note 199 at 3. 204 See id. at 6. 205 See id. at 11. 206 See id. at 11-13. 207 Id. at 15. 208 Id. at 15-16. 209 See id. at 24-25. 210 See generally id. at 31-53 (noting “[The] Technical Annex presents the results from reducing emissions from deforestation in the Amazon biome, measured against the forest reference emission level (FREL) presented by Brazil to the UNFCCC in June 2014.”). 211 See id. at 37, table 1. 212 See id. at 40-53 (this data, while relevant, is outside the scope of this paper, and therefore will not be discussed in detail). 213 See generally Technical Report on the Technical Analysis of the Technical Annex to the First Biennial Update Report of Brazil Submitted in Accordance with Decision 14/CP.19, Paragraph 7, on 31 December 2014, U.N. Doc. FCCC/SBI/ICA/2015/TATR.1/BRA (2015) [hereinafter Technical Report]. 18 reproductions of overly specific tables in tiny font sizes.214 Whether this formatting change was at the behest of the administration, because of reduced funding, or because of some other subjective reason comes down purely to speculation. Regardless, the third report highlights the same major points as the first report, including the steps taken under the PPCDAm to protect the Amazon with only slightly more information.215 The Technical Annex of the third report (“third annex”) provides some insight that steps toward deforestation mitigation may be changing.216 For example, the third annex notes that Brazil submitted it voluntarily and only for the purpose of “receiving results-based payments for its REDD+ actions. . . .”217 Interestingly, while the third annex shows a continued trend of decreasing “adjusted” deforestation rates between 2010 and 2015, with increased rates appearing in both 2013 and 2015,218 the REDD+ data provided later in the report shows average deforestation increases in 2001, 2013, and 2015.219 Importantly, in the years between 2010 and 2015, average deforestation rates for each year were higher than the rate recorded in 2010.220 While the uptick in deforestation rates between 2010 and 2015 do not come close to the level of deforestation in the early 2000s, Brazil did not provide any data for the years leading up to the election of Bolsonaro or his first year in office, and as such, any speculation at those rates may be unfounded.221 iii. UNFCCC’s Analysis of Brazil’s Submissions Given Brazil’s formal insistence that it is adhering (granted voluntarily) to the objectives of the Paris Agreement, it is worth considering how the UNFCCC views these efforts. The UNFCCC provides technical analysis on a limited number of reports that are filed with it, including both the FREL and the Technical Annexes.222 The UNFCCC responses to Brazil’s first FREL and its first Technical Annex are discussed below. To begin, the Technical Assessment starts by stating that Brazil’s FREL was submitted under paragraph seventy of the Paris Agreement and notes that the FREL does not modify any mitigation efforts which Brazil to that point had undertaken.223 As noted throughout this section, the Technical Assessment itself notes that Brazil undertook the submission voluntarily, with the intention of securing REDD+ payments, and finally, that the FREL targets only the Brazilian Amazon (granted with the intention of moving toward a national FREL at some indeterminate later date.)224 Next, the Technical Assessment goes through various qualifications regarding Brazil’s transparency within the FREL including, in large part, specific concerns over the implication of

214 See e.g., Third Biennial Report, supra note 186 at 15-19, 23-27. 215 See id. at 23-27 (including 100% analyzation of the 60 million hectares of federally protected land, 28.5% of the Amazon biome protected, charging 105,389,209.00 Brazilian Reals in fines for environmental violations, a decrease by 84% in deforested areas inside conservation units between 2004 and 2017, 100% of rural properties registered at national level, and increases in funding for the Amazon Fund). 216 See generally id. at 51-63. 217 Id. at 51. 218 Id. at 54, table 1. 219 Id. at 69, table 2. 220 See id. 221 See id. 222 See generally Rep. of the Technical Assessment of the proposed Forest Reference Emission Level of Brazil Submitted in 2014, U.N. Doc. FCCC/TAR/2014/BRA (2014) [hereinafter Technical Assessment]; see also Technical Report, supra note 213. 223 See Technical Assessment, supra note 222 at 3. 224 Id. at 4-6. 19

PRODES satellite mapping.225 After Brazil submitted amendments to its FREL, the Technical Assessment acknowledges that its submission is transparent and complete and targets the “most important biome and the most significant pools in terms of emissions from forests.”226 Nevertheless, the Technical Assessment observes that the FREL provides only a conservative estimate of total emissions.227 In conclusion, the Technical Assessment reads as a good first try for Brazil, commemorating its commitment to the cause of the Paris Agreement while also noting that it can take numerous steps toward technical improvement with adequate support.228 In a similar vein, the Technical Report, which provides an analysis of the Technical Annex, specifically seeks to determine whether the annex is consistent with the approved FREL, transparent, and accurate “to the extent possible.”229 Importantly, the Technical Report determines that Brazilian efforts at reducing “emissions from deforestation in the Brazilian Amazon biome [have] been undertaken using a transparent and consistent approach” and commends Brazil for its dedication to providing transparent information.230 Like the FREL, the Technical Annex identifies areas for technical improvement which largely mirror those included in the FREL.231 Overall, the Technical Report considers that the First Technical Annex is accurate and transparent and concludes with more commemoration for Brazil’s conservation efforts.232 Unfortunately, at the time of writing this paper, the UNFCCC has not published its report on Brazil’s third technical annex which, as mentioned previously, was the first submitted under the Bolsonaro administration, so any comparison between the technical view of the international body over the last few years will have to wait. Regardless, Brazil’s consistency with submitting its reports, even voluntarily, and the initial support, indeed praise, of the UNFCCC support the idea that, at least on paper, Brazil remains committed to the efforts of the Paris Agreement. IV. Potential for the International Community to Combat Brazilian Deforestation Having examined both the domestic and international law surrounding Brazilian deforestation efforts up to this point, it is only appropriate to consider any potential remedial measures that a party might assume to lawfully combat deforestation efforts within Brazil. As will be shown, this section asserts that actors within the international community have three options to try and tackle any increased Brazilian deforestation. Specifically, this section focuses on case law from international disputes, as well as decisions from other foreign jurisdictions, economic pressures from foreign entities, and finally potential UN action. A. Case Law i. International Dispute Resolution In response to increased deforestation in Brazil, a reader from the United States, who lives in a highly litigious society, might suggest the simple and ever-growing solution of bringing a lawsuit against the offending party. However, bringing a suit under international law can be complicated,

225 See generally id. at 6-10. 226 Id. at 11. 227 Id. at 12. 228 See id. at 12-13, ¶ 41. 229 See Technical Report, supra note 213 at 5, ¶ 11. 230 Id. at 9. 231 See id. at 9, ¶ 34. 232 Id. at 10. 20 especially because there is the omnipresent concern over sovereignty.233 Nevertheless, options potentially exist: namely, an offended party could seek reprieve through submission of its claim to international arbitration or through the International Court of Justice (“ICJ”).234 Turning first to international arbitration, any foreign entity which was harmed by Brazilian deforestation would have to come to an agreement with the Brazilian government (or potentially some other Brazilian actor) to submit their dispute to arbitration and consequently agree to be bound by any decision coming from that arbitration.235 Crucially, any agreement to arbitrate would naturally set out the organization of the deciding arbiters while also deciding the applicable law which would settle the dispute.236 By way of example, the Trail Smelter Case involved a smelting plant that was owned and operated by a Canadian company near the border of Canada and Washington state.237 The plant significantly increased its operations in both 1925 and 1927, which resulted in increased sulfur dioxide fumes in the air, and, between the years of 1925 and 1931, caused damage downwind in Washington.238 After U.S. citizens attempted to negotiate with the Canadian company numerous times, the U.S. government stepped in to settle the case through the International Joint Commission, which was a non-binding dispute resolution method similar to arbitration.239 When the solution under the International Joint Commission failed to solve the problem, the U.S. government sought resolution through arbitration.240 The arbitration agreement provided four narrow questions for the arbiters to resolve, including whether damage occurred and whether remedial measures were necessary.241 The arbiters, after extensive examination of the record, concluded that damage continued to occur between 1932 and 1937 and determined that the U.S. was entitled to indemnification of $78,000 for the damage.242 Further, in a perhaps unique exercise of power, after the arbiters determined that they did not have enough data on which to judge the remediation efforts of the smelters, the arbiters instituted a temporary regime under which the Trail Smelter had to consent to observation and experimentation to determine its continued impact on the environment.243 So, with the Trail Smelter Case as an example, environmental disputes between international entities have been successfully settled. However, it remains to be seen whether a Brazilian entity would agree to any arbitration for alleged damages through deforestation and, further, whether such agreement would be amicably settled under the applicable law already discussed. Next, the ICJ provides a forum for dispute resolution which resembles the traditional adversarial process of litigation in the Western world, and perhaps the best place to start is with the first case presented before the ICJ, the Corfu Channel Case.244 This case involved the explosion of two

233 See generally Trail Smelter Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1938 & 1941); Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (1949) (discussing, in both, concerns about the sovereignty of the parties and therefore the enforceability of any international decision). 234 See id.; Corfu Channel Case, 1949 I.C.J. at 4. 235 See generally id. at 1907-10 (outlining the agreement between the U.S. and Canadian governments and establishing the rules of their arbitration). 236 See e.g., id. at 1908. 237 Id. at 1917. 238 Id. 239 See id. at 1917-1918. 240 Id. at 1919. 241 Id. at 1908. 242 Id. at 1933. 243 See id. at 1934-37. 244 See generally Corfu Channel Case, 1949 I.C.J. at 4. 21

British warships which struck mines in Albanian waters as they attempted to navigate through the Corfu Channel.245 Later, the area was swept for mines, and the Albanian government admitted, without taking responsibility for the mines, that the minefield was recently laid.246 Initially, the British government attempted to assert that the Albanian government laid the mines but failed to produce evidence sufficient for the ICJ to establish that as fact.247 Nevertheless, the ICJ, in a lengthy analysis, determined that Albania had knowledge of the mine laying (even if the country did not lay them itself) and importantly, owed a duty to notify ships of the danger under general international law principles rather than under the Hague Convention of 1907 which applied during wartime and under which the British government asserted its cause of action.248 So, at least at its inception, as applied to the Corfu Channel Case, the ICJ is comfortable considering disputes which have no solid foundation in express international law like treaties or other international agreements. This is important because, as already noted, the Paris Agreement does not have an enforcement mechanism, so presumably, while an aggrieved party would likely need some solid international law to assert a cause of action, the ICJ may consider a case against Brazilian deforestation based on one of the general principles of international law highlighted in the Corfu Channel Case. Crucially, with these two case studies as examples and as this paper asserts, there are two main issues with either arbitration or bringing the case before the ICJ: first, there is a question of fact, and second, one of remedy. Regarding fact, both the arbitration decision of the Trail Smelter Case and the ICJ decision of the Corfu Channel Case based their analysis in large part on an extensive, scientifically-based factual record.249 Therefore, any party attempting to assert a cause of action for injury sustained by Brazilian deforestation would likely have to support such a claim with ample factual evidence which may be difficult since, as already discussed, the Brazilian government largely controls the monitoring systems of the Amazon. And, given that Brazil (at least facially) retains laws which attempt to discourage deforestation, an aggrieved party may find it difficult to find a law on which to hang its cause of action. Turning to remedy, any aggrieved party, if they are truly environmentalists, would likely desire something more than monetary compensation. However, the main remedies in both cases discussed above were in fact money damages.250 While the arbiters in the Trail Smelter Case fashioned a unique remedy by drafting a temporary “regime” which required the Trail Smelter to comply with various experimental and reporting requirements, this was only in answer to one of the narrow questions certified to the arbiters through the arbitration agreement.251 Given that the Brazilian government continues to comply, at least on paper, with its reporting guidelines under the Paris Agreement, it is unlikely that it would agree to certify a remedial question to arbiters, assuming that the Brazilian

245 Id. at 12-13. 246 Id. at 13. 247 Id. at 16. 248 Id. at 16-23 (citing as general principles: “elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication ; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”). 249 See Trail Smelter Case, 3 R. Int’l Arb. Awards at 1920-21 (citing various experiments regarding the effects and distribution of sulfur); Corfu Channel Case, 1949 I.C.J. at 13-15, 16-18 (examining the effects of the explosions to determine their case, the effect of the mines discovered in the water, and Albania’s “knowledge” of the mine laying). 250 See id. at 1933; Corfu Channel Case, 1949 I.C.J. at 11, 36 (citing the British governments demand for monetary compensation and the ICJ’s decision to decide the amount at a later date). 251 See id. at 1934-37. 22 government would agree to arbitrate in the first place, because, as already discussed, it is already subject to the critiques of the administrators of the Paris Agreement. ii. Environmental Decisions from Other Foreign Jurisdictions With the potential limitations of international dispute resolution highlighted above, it is appropriate to review another possible avenue which an aggrieved party could take to combat deforestation in the Brazilian Amazon. Put simply, the Brazilian people may be able to assert a claim directly against their government for protection of the biome. In the last few years, various governments from around the world have faced challenges by their citizens to recognize certain environmental rights.252 For the sake of brevity and by way of comparison, this section will only address two of these recent cases in detail. First, a Dutch court of appeals, in Urgenda, upheld the judgment of a lower court which obligated the Dutch government to increase its commitment to reduce carbon dioxide emissions.253 Urgenda, an organization of Dutch citizens intent on preventing climate change, brought this suit under articles six and eight of the European Convention of Human Rights (“ECHR”) as well as the general duty of care established under the Dutch Civil Code.254 While the opinion addressed numerous international climate agreements, including the Paris Agreement, the court does not consider any of these as binding on the current case.255 The main issue on appeal was whether Urgenda could rely on articles two and eight of the ECHR to assert a cause of action.256 The court determined that both article two, which protects the right to life, including protection from environmental situations that threaten life, and article eight, which protects the right to family life, likewise including protection from environmental situations which might threaten it, apply in this case.257 Because of this, the court decided that “the State must take precautionary measures to prevent infringement [of these rights] as far as possible,” which included meeting its carbon dioxide reduction obligation as defined by the lower court.258 So, this case represents a successful challenge by citizens to increase the enforcement of their government’s environmental policies. Implicitly, with this case as an example, the most effective challenge to deforestation in the

252 See generally Hof Den Haag 9 oktober 2018, NJ 2018, 2610 m.nt. Van G.A. van der Veen (Stichting Urgenda/De Staat Der Nederlanden) (Neth.) [hereinafter Urgenda]; Juliana v. United States, No. 6:15-cv-1517-TC, 2016 U.S. Dist. LEXIS 4719, at *1 (D. Or. 2016) (attempting to assert that various governmental actions which have negatively impacted climate change have violated the constitutional rights of American youth); Affaire Du Sievle (Case of the Century): Brief on the Legal Request Submitted to the Administrative Court of Paris on 14 March 2019, COLUM. L. BLOG, (Mar. 14, 2019) [hereinafter Notre Affaire a Tous and others v. France], http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case- documents/2019/20190314_NA_complaint-1.pdf (listing unofficial transcript of the original complaint and asserting that the government’s failure to address climate change violated a constitutional duty to act); Corte Suprema de Justicia [C.S.J.] [Supreme Court], abril 5, 2018, Luis Armando Tolosa Villabona, Radicación no. 11001-22-03-000- 2018-00319-01 (Colom.) [hereinafter Future Generations v. Ministry of the Env’t], http://ramajudicial.gov.co (type case number into the “Search Box”; then select the document titled STC4360-2018(1).doc) (follow http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case- documents/2018/20180405_11001-22-03-000-2018-00319-00_decision-1.pdf for unofficial translation of the document). 253 See generally id. 254 See id. at ¶¶ 3.1, 39. 255 See id. at ¶¶ 5-8, 15-18, 28 (seeming to imply that these international agreements while not allowing a cause of action, can be considered when establishing a standard for the duty of care). 256 Id. at ¶¶ 39-43. 257 See id. at ¶ 40. 258 Id. at ¶¶ 43, 53, 73. 23

Brazilian Amazon might be the enforcement of those Brazilian environmental laws which were discussed above. Next, and perhaps more relevant, the Supreme Court of Colombia, in Future Generations v. Ministry of the Environment, determined that its citizens have an innate right to a healthy environment, specifically regarding protection from deforestation in the Colombian Amazon, and required that the Colombian government take steps to mitigate further deforestation.259 Importantly, the complainants in this case appealed directly to the Paris Agreement in their cause of action as well as one Colombian law.260 The court highlighted that “the fundamental rights of life, health . . . and human dignity are substantially linked and determined by the environment and the ecosystem” such that the government could not fulfill its obligations to protect the rights of its citizens without also protecting the environment.261 Interestingly, the court found that protection of these environmental rights apply to future generations based on “the ethical duty of the solidarity of the [human] species and on the intrinsic value of nature.”262 Further, the court explicitly acknowledged that protection of the Amazon is crucial not only to the plaintiffs but also to the world population at large.263 Consequently, due to continued deforestation in the Colombian Amazon, the court determined that the government was negligent in exercising its duties and required it to implement various remedial schemes to prevent further deforestation.264 This case is important because, as discussed, it shows that a neighboring jurisdiction, indeed a country that has part of the Amazon within its borders, explicitly recognizes that soft laws can create governmental duties in conjunction with human rights. Nevertheless, given the efforts of the Bolsonaro administration, it is unclear whether the Brazilian government would accept a challenge based directly on the Paris Agreement, but it remains a potential option. B. Economic Incentives Should a potentially aggrieved party fail to achieve relief from formal dispute resolution, as discussed above, it is likely that the next step toward curbing Brazilian deforestation falls to the conjunctive exercise of hard and soft power.265 This section examines the possibility that exertions of soft power, namely the reduction of foreign aid given to Brazil, could shift toward more dire exertions of hard power, namely the imposition of full economic sanctions for failure to curb deforestation. Turning first to soft power, the international interests in the Amazon have engendered ample amounts of foreign aid – indeed Germany alone has contributed €95 million since 2008 to assist

259 See Future Generations v. Ministry of the Env’t at 34. 260 See id. at 1 (stating that through the Paris Agreement, “the government acquired . . . international commitments to achieve” . . . ‘reduction of deforestation and the emission of greenhouse gases in a context of climate change . . .’ among which, the obligation to ‘reduce the net rate of deforestation to zero in the Colombian Amazon by 2020’ stands out”). 261 See id. at 13. 262 Id. at 18 (drawing a direct contrast between Urgenda which refused to address the question of the rights of future generations because the court determined that the rights of current citizens were actively being violated). 263 See id. at 34. 264 Id. at 42, 45. 265 See generally Eric X. Li, The Rise and Fall of Soft Power, FOREIGN POL’Y, (August 20, 2018, 1:25 PM), https://foreignpolicy.com/2018/08/20/the-rise-and-fall-of-soft-power/ (describing soft power as noncoercive power exercises by state actors including cultural and ideological categories and hard power as coercive power like military action and economic sanctions). 24

Brazil in environmental protection.266 Nevertheless, two countries, including Germany, have threatened to withdrawal their funding for Brazilian conservation efforts due to the Bolsonaro administration’s candid disinterest in protecting the Amazon.267 Germany, for its part, threatened to “block payment of €35 million ($40 million) to Brazil . . . until the Amazon’s rate of decline attain[s] encouraging levels once again.”268 Bolsonaro, for his part, seems unconcerned considering he stated, “[Germany] can use this money as they see fit. Brazil doesn’t need it.”269 However, one Brazilian official has alleged that Brazil publishes its environmental data in such a way so as to encourage further foreign investment, which at least implies that soft power still holds some sway over the Brazilian government.270 If the reduction in foreign aid fails to encourage mitigation efforts, a foreign power might next turn to economic sanctions as a way put further pressure on Brazil.271 As a general case study on the effect of such sanctions, one need not look any further than the current conflict between the U.S. and Iran. President Trump has continued to increase sanctions on Iran after he withdrew the U.S. from the nuclear agreement which was negotiated by the prior Obama administration.272 These sanctions, in large part, are an effort by the current U.S. administration to “force the Iranian leaders to surrender to American demands . . . .”273 Because of the sanctions, Iran has felt the effects of an economic downturn, including a fifty percent (50%) increase in the inflation rate.274 This economic pressure caused Iran to strike back militarily with the explosions of oil tankers and the downing of an American drone which in turn provoked the Trump administration into ordering missile strikes before eventually settling on a cyber-attack.275 This case study should serve as a cautionary tale to any foreign power that would attempt to sanction Brazil for its continued deforestation. As with the current conflict in Iran, a sanction battle with Brazil might produce some unexpected results, if not reducing itself to outright military conflict.276 However, as noted above, there are specific industries that contribute directly to deforestation, so, from that respect, any potential sanctions could be targeted so as to avoid pressuring the entire economic system within Brazil. C. UN Action The final method of combating Brazilian deforestation relies more heavily on the international community at large because it would be sanctioned by the UN itself. If a country refused to impose

266 See Bolsonaro shrugs off German aid cuts, as deforestation surges, CLIMATE CHANGE NEWS (Aug. 9, 2019, 1:31 PM), https://www.climatechangenews.com/2019/08/12/bolsonaro-shrugs-off-german-aid-cuts-deforestation-surges/. 267 Id. 268 Id. 269 See id. 270 See id. 271 See generally Edward Wong, Trump Imposes New Sanctions on Iran, Adding to Tensions, N.Y. TIMES, (June 24, 2019), https://www.nytimes.com/2019/06/24/us/politics/iran-sanctions.html (discussing in general the current conflict between the U.S. and Iran). 272 See id. 273 See id. 274 Id. 275 See id. (noting that U.S. officials blame Iran for the explosions of the oil tankers, but Iran has denied any involvement). 276 See generally id. (arguing that Iran might “carry out nonfatal attacks on (sic) United States or international interests, as they did with the downing of the drone, to try to get the Trump administration to ease sanctions”). 25 sanctions on Brazil, then an aggrieved party might be able to make a case to the UN to step in. This section reviews the powers that the UN possess to encourage Brazil to halt deforestation. The UN Charter provides that the Security Council can take certain measures under Chapter VII for “threats to the peace, breaches of the peace, and acts of aggression.”277 Specifically, the UN Charter gives the Security Council the ability to use economic pressures as well as actual force against a party deemed to be in violation of this chapter under Article 41 and 42 respectfully.278 Article 41 provides that the Security Council may take measures including the “complete or partial interruption of economic relations . . . and the severance of diplomatic relations” to “give effect to its decisions.”279 Under this chapter, the Security Council has “adopted a variety of direct and indirect economic measures,” such as freezing funds associated with terrorism, promoting transparency, promoting strategies to determine ownership of natural resources, and partnering with the World Bank, IMF, and private actors in order to effect its mandate.280 But the crux of Article 41 relies mainly on economic sanctions which seek to “manage[] schemes for natural resources, to promulgate laws on economic rehabilitation in fragile states, and to create cooperative schemes with international financial institutions on economic governance.”281 While some commentators assert that such UN intervention has successfully aided transitional governments,282 logically, the argument against such intervention mirrors that of the previous section of this paper. Perhaps, a UN decision lends slightly more legitimacy to any sanctions because the UN “has primary jurisdiction over the maintenance of international peace and security.”283 Still, the powers of Article 41 are conferred solely on the Security Council, which is made up of five permanent members each with independent veto power, so it is possible that any economic sanction would be subject to the whims of those five members. 284 Effectively, any UN sanction faces the same risk of various retaliation measures as sanctions brought by an independent state, and further, any sanction would likely be limited by the interests of the Security Council.285 In contrast, Article 42 allows the Security Council to use force to “maintain or restore international peace and security.”286 This force is primarily intended to ensure compliance with Article 41 sanctions, combat foreign occupation, prop up legitimate authorities, or restore internal peace.287 But as the UN has no standing army, the Security Council must rely on the military forces of its Member States.288 In this sense, Article 42 is “the ultimum remedium,” and given that the UN’s primary mission is to maintain peace, it would likely need a very strong reason to commandeer military forces and send them to the Brazilian Amazon.289 Finally, this option faces the same

277 See generally U.N. Charter art. 41. 278 See id.; U.N. Charter art. 42. 279 Id. 280 Kristen E. Boon, Coining a New Jurisdiction: The Security Council as Economic Peacekeeper, 41 VAND. J. TRANSNAT'L L. 991, 994 (2008). 281 Id. at 996, 1004. 282 See id. at 1029-31 (discussing U.N. economic intervention under Article 41 in Kosovo and East Timor). 283 See generally id. at 94 (discussing the role of the U.N. within the global regulatory scheme). 284 See U.N. Charter art. 41, supra note 277. 285 See Boon, supra note 280 at 1021 (noting that the Security Council’s intervention in Albania was fueled by the Security Council’s involvement in the region). 286 U.N. Charter art. 42, supra note 278. 287 See Niels Blokker, Is the Authorisation Authorised? Powers and Practice of the UN Security Council to Authorise the Use of Force by ′Coalitions of the Able and Willing’, EUR. J. INT’L L. (2000) 11 (3): 541. 288 See id. 289 See id. 26 major hurdle as Article 41 sanctions because Article 42 likewise vests power in the Security Council, so therefore, it is subject to the interests of each Security Council member.290 V. Conclusion As discussed, Brazil operates within a unique region of the world of environmentalism because it contains so much of the Amazon. Despite Brazil’s recent history of promoting conservation, particularly within the Amazon, it remains a target of developed nations seeking to ensure that the Amazon is protected and no longer deforested. This has become increasingly true as the Bolsonaro administration has effectively created an air of state-sponsored deforestation. Still, the international community has strived to establish cooperative institutions which would allow the global community to collectively shoulder the burden of climate change. And Brazil has operated, at least facially, within many of these, including the Paris Agreement. Because the Paris Agreement has no formal enforcement mechanism, the international community may need to make some hard choices when attempting to combat any continued deforestation in Brazil. This will likely require the balancing of economic and military retaliation, as well as the potential upset of the rule of law. This is a complex issue which will likely demand a complex solution.

290 U.N. Charter art. 42, supra note 278. 27