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The Effectiveness of the Precautionary Principle in Brazil: the Case of Marine Protected Areas and Threatened Species

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The Effectiveness of the Precautionary Principle in Brazil: the Case of Marine Protected Areas and Threatened Species THE EFFECTIVENESS OF THE PRECAUTIONARY PRINCIPLE IN BRAZIL: THE CASE OF MARINE PROTECTED AREAS AND THREATENED SPECIES Project Solange TELES DA Professor of Law, coordinator SILVA Mackenzie Presbyterian University Research Carolina DUTRA Doctoral candidate, team Mackenzie Presbyterian University Fernanda Doctoral candidate, SALGUEIRO Mackenzie Presbyterian BORGES University Marcia FAJARDO Doctoral candidate, CAVALCANTI Paris I University- Mackenzie University Mauricio DUARTE Doctoral candidate, DOS SANTOS Mackenzie Presbyterian University Patrícia BORBA DE Doctoral candidate SOUZA Mackenzie Presbyterian University Research Project “Brazilian Strategy for the Sustainable Management of Living and Non-Living Marine Resources”, Coordination for the Improvement of Higher Education Personnel (CAPES/ Brazil). Research Project “Law and Sustainable Development: biodiversity management and protection” (MackPesquisa Institute/Brazil) Researcher on Productivity at National Council of Technological and Scientific Development (CNPq/Brazil). 1 SUMMARY OF THE EVALUATION The precautionary principle in the implementation of Marine Protected Areas and the protection of marine species that are threatened with extinction1 and at risk The absence of full scientific certainty about marine species that are threatened with extinction and at risk in a given place, and about their interaction with the marine ecosystem, must not be invoked as a reason to postpone the adoption of measures able to avoid or attenuate the threat of significant reduction or loss of marine biodiversity.2 In other words, the presence of doubts about the fact that certain species are actually threatened, “evidence that they may be (distribution limited to threatened ecosystems, lower populations, apparent decline, etc.) justify actions to ensure their protection and that of their habitat.”3 In this sense, the creation of marine protected areas (MPAs)4 is one of the instruments that can safeguard the integrity of ecosystems and of marine biodiversity, while helping to protect and restore threatened marine species, applying the precautionary principle. Complementing an ecosystem’s protection and management strategy and the application of the precautionary principle, threatened species are also protected by being identified and included in lists of threatened species and through the adoption of strategies to alter that situation, such as action plans for the conservation of marine species threatened with extinction. While it is true that “threatened species” covers three IUCN categories for extinct and threatened species 5 (critically endangered, endangered and vulnerable), thus indicating a real, threatening situation, we must also consider marine species that are at risk, i.e., in situations of fragility and in which there is a potential for loss of diversity,6 including species that are overfished.7 The objective of this study is to assess the effectiveness of the precautionary principle in the implementation (creation and management) of marine protected areas in Brazil, and its correlation with the protection of threatened species, in other words, assess the effectiveness of that principle applied to the two basic strategies used to conserve biodiversity: protect and manage ecosystems and protect and manage species. These two strategies, of course, are not disconnected but interrelated. We shall therefore consider federal marine protected areas or conservation units8 and species of marine fauna that are threatened or at risk. 1 This paper adopts the term “threatened species” covering the three IUCN categories for extinct and threatened species: (a) critically endangered, (b) endangered and (c) vulnerable. Under Brazilian law, these three categories are considered to be threatened, in addition to those extinct in the wild (Portaria MMA n. 43/2014). 2 Actually, “There is a need to accelerate the discovery of marine biodiversity, since much of it may be lost without even being known”. M. J. Costello et al, ‘A Census of Marine Biodiversity Knowledge, Resources, and Future Challenges’ (2010) 5 PLos ONE 1, p. 1. 3 E. Trajano, ‘Políticas de conservação e critérios ambientais: princípios, conceitos e protocolos’ (2010) 24 Estudos Avançados 135. 4 The term “marine protected area” is defined as “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”. G. Kelleher and R. Kenchington, Guidelines for Establishing Marine Protected Areas. A Marine Conservation and Development Report (IUCN, Gland, Switzerland, 1992) p. 13. 5 IUCN, Guidelines for Application of IUCN Red List Criteria at Regional and National Levels: version 4.0 (Gland, Switzerland and Cambridge, UK, IUCN, 2010) 6 Trajano ibid. 7 Overfished species are those whose catch levels are so high that they reduce their biomass and their spawning and future catch potential to lower than acceptable levels. 8 The term "protected area" in this work will be used as a synonym for “conservation units”, i.e. “territorial spaces and their environmental resources including waters under Brazilian jurisdiction, with relevant natural characteristics, legally instituted by the Government, with objectives of conservation and defined boundaries, under a special administrative regime, to which are applied adequate guarantees of protection" art. 2-I of Federal Law 9985, which instituted the National 2 The National System of Nature Conservation Units (SNUC, established by Law 9985/2000) created two categories of protected areas or conservation units: those called “full-protection” units, which allow no direct use at all of natural resources, and those defined as “sustainable- use” units, in which the rational use of environmental resources is possible, up to certain established limits. Both categories can be applied to land, marine and coastal areas, and one objective of the SNUC Law is to protect threatened species on regional and national scales (art. 4-II, Law 9985/2000). The preparation and publication of lists of threatened species is an indicator for decision making and should guide environmental agencies as they license potentially or effectively polluting activities. This list, for fish and aquatic invertebrates, covers both threatened and commercially overfished species. Our reflections here, therefore, begin by questioning the effectiveness of the precautionary principle applied to the conservation of marine biodiversity: habitats, ecosystems and marine biomes, on the one hand and, on the other, threatened marine species.9 To what extent has the precautionary principle been applied in legal instruments? In order to analyze how the precautionary principle has been used to implement MPAs and protect threatened marine species, we must first clarify that there are different conceptions of precaution, regarding the terminology and also its degree of application or scope. Several expressions have been used, such as “precautionary measures,” “precautionary approach,” “precautionary philosophy,” “precautionary attitude,” “precautionary culture” and “precautionary principle.” To a greater or lesser degree, these expressions refer to scientific uncertainties, risks and how they are assessed and how they can support decision making on whether or not to carry out certain human activities, as well as to take measures to avoid damage or risks of damage. To apply the precautionary principle, there is no need for scientific certainty regarding environmental damage for actions in defense of the environment to be taken. In its utmost degree, this principle may halt activities that threaten the environment. As Rosie Cooney has said, the generally applicable definition consecrated by Principle 15 of the Rio Declaration on Environment and Development in 199210 expresses a “weak” conception of the precautionary principle. It is weak because its application depends on several pre-conditions: (a) serious and irreversible damage to the environment or to human health; (b) lack of scientific certainty, which cannot be used as a reason for postponing measures; (c) consideration of the cost- effectiveness of precautionary actions and (d) measures to be applied by States according to their respective capacities.11 The “strong” conception of the precautionary principle, meanwhile, is defined not by the existence of serious and irreversible damage, but rather by the existence of a duty to take precautionary measures when human activities pose a threat of damage to human System of Conservation Units (SNUC). To be sure, however, Decree 5758/2006 also provides that protected areas include conservation units, indigenous lands and quilombola (Maroon) territories. 9 It is relevant here that Brazil is a Federative Republic, made up by the Union, member States and Municipalities. The National Environmental System (SISNAMA) is made up by federal, State and municipal agencies, organized by their scope of powers. The SNUC follows this model, meaning that State and municipal agencies may also create conservation units in their respective areas. Threatened species lists can be published nationally by the Brazilian Institute for the Environment and Renewable Natural Resources (Ibama) or by the member States’ environmental bodies. In this study, however, we limit our analysis to the federal sphere, except for one State MPA, in the State of São Paulo. 10 Cf. infra. 11 R. Cooney, The Precautionary
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