1. Introduction
Despite their enduring presence in the Amazon
1, the Yanomami’s initial contact with non-Indigenous people occurred in the early 20th century. At the end of the 1960s, the millenary history of the Yanomami in Brazil began to face challenges and struggles with respect to the ownership of their lands and the protection of their rights as an ethnic group coinciding with a period of widespread and overt persecution, censorship, and repression by the Brazilian Dictatorship agents [
1] against its adversaries, as well as the curbing of press freedom and political opposition [
2].
In the case of Brazil, the occupation of the Amazon must be understood according to the logic of capitalist production, which means a systemic unfolding of the local interactions of holders of rights over rural properties supported by the State. Such interactions are supported by public policies and private initiatives, based on credit, tax exemptions and investment in infrastructure, which have guaranteed the inflow of dollars into Brazil and, consequently, the stability of the trade balance.
The climate crisis was already implicit on the international agenda and in the environmental movement’s discussions during the 1970s, when debates about environmental issues such as ozone depletion, acid rain, and global temperature rise began. On one side are the primary historical contributors to climate change, the States responsible for the highest rates of greenhouse gas emissions since the Industrial Revolution, while on the other side are the developing countries, whose need for economic growth is closely tied to overcoming their social challenges.
Given the shared nature of the Amazon ecosystem across international borders, actions taken by one State internally hold relevance for neighboring countries. There is an ongoing concern about potential cross-border effects, making the measures adopted by each state a matter of interest and importance for the entire region. The far-reaching impacts on the region become evident when considering that a significant portion of the moisture transported by air currents to the South originates from the Amazon rainforest.
It therefore becomes necessary to study the case of Brazil involving the fight against climate change through the protection of the Amazon rainforest, the focus of the Reduction of Emissions from Deforestation and Forest Degradation, Conservation of Forest Carbon Stocks, Sustainable Management of Forests, and Enhancement of Forest Carbon Stocks (REDD+), mechanism created under the auspices of the Framework Convention on Climate Change (FCCC). This occurs within a context of internal ideological confrontations that trace back to the height of the Cold War in Latin America and remain unresolved due to the absence of transitional justice mechanisms [
3].
Forests play a crucial role in mitigating climate change by serving as carbon sinks, absorbing significant amounts of carbon dioxide. Understanding the intricate mechanisms that govern forest protection is essential for the development of effective strategies to combat climate change on a global scale. Moreover, this understanding holds profound implications for the rights and well-being of indigenous and traditional peoples, who are often intimately connected to these forested regions.
The examination of the Yanomami’s history over the past decades reveals a disturbing correlation between the humanitarian crises they have endured, and the predatory exploitation of natural resources driven by a capitalist logic. This exploitation, often endorsed by the Brazilian State, flagrantly violates both environmental and human rights, both domestically and internationally. The struggles of the Yanomami are not merely isolated incidents but rather the result of a systemic issue deeply rooted in a historical context. The Brazilian State’s sponsorship of exploitative practices has contributed to a blatant disregard for the environment and the well-being of indigenous communities, such as the Yanomami.
The intensification of these issues can be traced back to an ideological bias that manifests as authoritarian populism. In the Brazilian context, this is directly linked to actors associated with the Civil-Military Dictatorship. The legacy of this period has left an indelible mark on the nation’s socio-political landscape, with repercussions extending to the present day.
2. Brazilian Law Regarding Amazon Rainforest in Dictatorship
The political landscape preceding the 1964 Military Coup against João Goulart’s Government in Brazil was characterized by a complex interplay of domestic tensions and international interests, notably involving the United States. Goulart’s presidency raised concerns in Washington DC due to his leftist policies, which were perceived as potentially aligning with socialist ideologies. During the Cold War, the United States was deeply involved in containing communism globally and feared the spread of leftist influence in Latin America, notably after the 1959 Cuban Revolution. This apprehension led to American support for factions within Brazil that opposed the elected government, providing tacit approval and even logistical assistance to the military forces that eventually orchestrated the coup d’état [
4].
2.1. The Plan for National Integration and the 1967 Constitutional Rights of the Yanomami to Traditional Lands
The early 1970s marked a turning point in the Yanomami’s history in Brazil. They encountered challenges over land ownership and the safeguarding of their ethnic rights. The Brazilian State, aiming to exert control over its territory, began encouraging non-Indigenous settlement in these areas, displacing Indigenous groups into what became termed
demographic voids [
5]. The government initiated geopolitical initiatives to colonize the Amazon.
Starting in 1968, the State shifted its perception of the Amazonian territory, considering it a strategic tool to address the country’s underdevelopment [
6]. This led to the inception of the Plan for National Integration (PNI) through Decree-Law No. 1.106/1970. The plan centered on large-scale infrastructure projects, particularly highways [
7], and the establishment of settlement projects on the borders of national territory [
8]. The construction of the Perimetral Norte highway commenced in 1973 under the PNI. A section of it, immediately constructed, ran parallel to the Brazil-Venezuela border, spanning 235 kilometers through the southern lands traditionally inhabited by the Yanomami [
9].
In 1973, when the first incidents occurred between the Yanomami and non-Indigenous land occupants, Article 186 of the 1967 Constitution stipulated that “Lands inhabited by forest-dwelling peoples are inalienable as established by Federal Law; these communities shall have perpetual possession of such lands, with recognized exclusive rights to utilize natural resources and all assets within their territories” [
10]. At that time, the Yanomami already possessed legally native land rights over their traditionally occupied lands.
This legal treatment echoed earlier provisions in Brazil, such as Article 129 of the 1934 Constitution, which declared that “The possession of lands by forest-dwelling peoples permanently settled therein shall be respected, and it is prohibited to alienate such lands” [
11]. While this article did not explicitly address resource utilization, it safeguarded Indigenous land possession, distinguishing it from conventional property rights. In the 1967 constitutional regime, effective in 1973, “lands inhabited by forest-dwelling peoples” [
10] constituted federal assets as per Article 4, IV.
Under this provision, also preserved by Constitutional Amendment No. 1/1969, Indigenous peoples were responsible for permanent possession of their lands, and the Federal Government acknowledged their exclusive rights to natural resources within those lands. Additionally, any acts attempting to dominate, possess, or occupy Indigenous lands were deemed null and void without compensation to third parties, except for genuine improvements.
Due to the influx of non-Indigenous settlers, particularly miners, clashes occurred with respect to Indigenous land claims, a legally significant aspect necessitating a unified State response asserting sovereign control over a specific geographical expanse. In 1973, based on prevailing Brazilian Constitutional Law, the State undertook a concerted effort to sponsor non-Indigenous occupation of Yanomami lands.
The first wave of mineral prospectors arrived in Yanomami lands after its completion in Roraima in 1975 [
9]. Motivated by the allure of gold riches, around 50,000 miners passed through this area in subsequent years [
12], sparking conflicts over land as Indigenous and non-Indigenous communities interacted intensely. This marked the onset of deteriorating living conditions for the Yanomami.
The influx of prospectors into Yanomami lands triggered numerous health, legal, and environmental issues, drawing national and international attention to defend Indigenous peoples’ rights [
13]. Even before the peak of illegal mining activities, Carlos Drummond de Andrade cautioned: “The Yanomami are in grave danger and in need of assistance. You do not need to fly there to aid them” [
14] (p. 40, translated).
An opposing view contended that “The demographic estimates in the press aimed to demonstrate the necessity of creating an independent Yanomami country separate from Brazil” [
13] (p. 18, translated). This notion was based on the erroneous assumption that demarcating Indigenous land would equate to territorial secession. While flawed in equating Indigenous lands to national territory, this marked the first real conflict over Yanomami land.
This sentiment is echoed in the assertion that “[…] FUNAI [National Foundation of Indigenous Peoples
2] itself is contaminated by the internationalist thesis” [
13] (p. 12, translated). Furthermore, according to this point of view, a question arises about controlling Brazilian territory of 94,191 km
2 for a tribe of 5000 Indigenous people, at most, deemed to live in a primitive state [
13].
2.2. The Plan for National Integration and Infra-Constitutional Rights of the Yanomami to Traditional Lands
The issue at hand is more legal than political. State sovereignty pertains to the power to exclusively determine facts, acts, and legal transactions within a defined territory. By recognizing the rights of Indigenous people over their land and resources, the State, far from compromising its sovereignty, reinforces it. Thus, ensuring Indigenous possession of national territory does not undermine the integrity of the Brazilian State.
Within a legal context, hierarchically subordinate to Constitutional Law, Federal Law No. 6.001/1973 was already operative. It outlines the demarcation process, an initiative to enforce the Indigenous right to possession recognized by the Brazilian State since 1934. In line with Brazilian legal tradition
3, this law mandated that all Brazilian Federal States safeguard Indigenous land possession—belonging to the Union—while recognizing their exclusive right to utilize natural resources, subject to charges or restrictions
4.
Despite the legal regime of the Brazilian Dictatorship predominantly using the term to inhabit in reference to protecting Indigenous possession and use rights instead of the broader permanently located term [
11]—typical of the pre-1964 coup d’état era—Article 17 of Federal Law No. 6.001/1973 defines Indigenous lands and reinstates its original meaning by mentioning “lands occupied or inhabited by forest-dwelling peoples” [
15]. Hence, inhabited lands or those where Indigenous peoples are permanently settled must constitute lands they traditionally occupied, irrespective of demarcation according to Article 25
5 of Federal Law No. 6.001/1973. During the conflicts over Yanomami land, the intrinsic nature of Indigenous possession had already been unequivocally recognized in Brazil [
16].
More precisely, Article 23 of Law No. 6.001/1973 states that Indigenous possession is “the actual occupation of the land that, according to tribal customs, traditions, and practices, they occupy or inhabit or engage in activities essential for their subsistence or economic livelihood” [
15]. Indigenous possession encompasses more than mere habitation, considering that the Indigenous peoples’ lifestyle often involves significant spatial mobility.
To protect the right of Indigenous possession as an essential condition for their existence, Article 18, Paragraph 1, of Federal Law No. 6.001/1973 stipulates that in Indigenous lands, “it is prohibited for any person not belonging to tribal groups or Indigenous communities to engage in hunting, fishing, fruit gathering, or any agricultural or extractive activities” [
15]. Indigenous lands not only represent a de facto legal reality but also prevent external parties from exploiting their natural resources, even in good faith.
According to Article 19 of Federal Law No. 6.001/1973, the State must officially demarcate lands traditionally occupied by Indigenous communities to ensure legal certainty for all parties involved in managing the Brazilian Amazon. In accordance with this provision, “Indigenous lands, under the guidance and initiative of the federal agency responsible for aiding Indigenous communities, will be demarcated administratively following the process established in an Executive Branch decree”.
Despite the provisions in Federal Law No. 6.001/1973 that explicitly guarantee the right to the use of traditionally occupied lands and the duty of protection by the State, the Yanomami did not have these rights recognized due to the implementation of the direct and indirect objectives of the 1970 Plan for National Integration. Faced with the fact that the Brazilian State systematically and structurally took measures contrary to what was stipulated in the 1967 Constitution, amended in 1969, and outlined in Federal Law No. 6.001/1973 regarding the Yanomami’s land rights, with no available domestic remedies for the defense of their rights, the international avenue became legally feasible.
2.3. The Plan for National Integration and Inter-American Rights of the Yanomami to Traditional Lands
Since 1951, Brazil is a member of the Organization of American States (OAS)
6, and it is bound by the Inter-American Commission on Human Rights (IACHR)
7. The IACHR’s main function is to promote respect for and defense of human rights within its member States and to serve as an advisory body to the OAS [
17]. As per the regulations outlined in Articles 18 and 20 of its Statute, the IACHR has the authority to suggest that governments take actions to safeguard human rights in line with both national and international standards, while setting up suitable provisions to ensure the enforcement of these rights. Additionally, the IACHR is tasked with giving particular focus to upholding the human rights outlined in the 1948 American Declaration of the Rights and Duties of Man (ADRDM), providing recommendations aimed at enhancing the effectiveness of human rights within individual countries.
In 1980, a lawsuit against Brazil was brought before the IACHR
8, accusing the State of internationally unlawful actions against the Yanomami. During that period, the IACHR functioned as an international oversight entity but could not take action in line with articles 44 to 51 of the American Convention on Human Rights (ACHR). It also could not appear before the Inter-American Court of Human Rights (I/A Court H.R.) regarding Brazil
9. As reports of the Yanomami humanitarian crisis reached the IACHR, Brazil started to defend itself against the claims made by the petitioners. This defense was grounded in international instruments that uphold the “fundamental rights of the human person” [
18] as legal principles.
The Brazilian government and the National Foundation of Indigenous Peoples (Funai) faced allegations of violating rights following the substantial arrival of outsiders into areas traditionally inhabited by the Yanomami. This influx led to illnesses and fatalities due to violence and a lack of adequate medical attention. The State’s inaction jeopardized the safety and cultural integrity of Indigenous lands, posing a threat to the preservation of the ethnic group’s culture, traditions, and customs [
19].
In response, the Brazilian government enforced a restriction on a continuous area covering 7,700,000 hectares by MINTER/GM Ordinance No. 025, issued on 9 March 1982. This area was delineated to the northwest by the Brazil-Venezuela border extending to the meridian 66°20′00″ W; bounded to the south by the course of Perimetral Norte highway; and on the east, by the meridian 62°00′00″ W [
20]. Several months later, specifically on 12 September 1984, the President of Funai submitted a proposal to this inter-ministerial working group seeking to define and set the boundaries of the prospective
Yanomami Indigenous Park, which was planned to cover 9,419,108 hectares.
On 5 March 1985, upon thorough examination of the context and evidence, the IACHR determined that the Brazilian State’s inaction hindered it from implementing essential measures, thereby breaching the Yanomami’s entitlements to life, freedom, and health (Article I of the ADRDM), to habitation and movement (Article VIII of the ADRDM), and to the safeguarding of their health and overall welfare (Article IX of the ADRDM).
The IACHR ultimately advised the Brazilian government to persist in implementing preventative and corrective health measures to safeguard the lives and well-being of the Indigenous population from infectious diseases. Additionally, it endorsed the delineation of the
Yanomami Indigenous Park according to the outlined terms proposed by the Funai President in 1984 as fitting and suitable [
19].
Yet, starting in 1987, the gold rush in Roraima Federal State escalated, garnering increased global attention [
21] [
22] toward the Yanomami plight. This influx led to the tragic deaths of Yanomami individuals, either succumbing to epidemics or falling victim to violence as a result of the arrival of numerous illegal miners on their territories. Confronted with the crisis brought by illegal mining jeopardizing the Yanomami’s rights, the hurdle was not in crafting regulations but in executing the established legal framework.
This framework not only acknowledged the Indigenous peoples’ entitlement to land but also tasked the Brazilian State with demarcating and safeguarding it. Nonetheless, putting these Indigenous rights into effect encountered significant opposition. The factions that wielded unchallenged control over the State during the Brazilian Dictatorship did not perceive it as a crisis. Instead, they interpreted it as a signal of progress [
13] (p. 161, translated).
3. Brazilian Law Regarding Amazon Rainforest in Democracy
The Brazilian State faced significant challenges during its process of redemocratization. It sought a solution that would protect Indigenous rights while accommodating its economic development and territorial integrity. The issue of demarcating Indigenous lands must be examined within the context of resistance from certain sectors of the population, justified by immediate economic and military goals.
Hence, it is evident that preserving the Amazon rainforest to address the climate crisis can only be a near-term possibility. This consideration must also weigh local and national economic concerns. In the global landscape, with most Amazonian countries facing socioeconomic development challenges and embracing neoliberal economic approaches—particularly in the Americas—this issue takes on an even more pressing and critical nature.
3.1. The 1988 Constitutional Rights of the Yanomami to Traditional Lands and Ideological Reactions
The enactment of the 1988 Constitution marked the start of Brazil’s journey towards reestablishing democratic governance. It is noteworthy that yearly records of Amazon rainforest deforestation, derived from satellite images, were made accessible to the public shortly after in 1989 [
23]. The escalating global environmental discussions in the 1980s, acknowledging the necessity of addressing poverty and underdevelopment for effective environmental protection, had a notable impact on Brazil’s constitutional framework.
The drafting and enactment of the 1988 Constitution occurred during a significant fiscal crisis within the dictatorial State. This regime found itself financially incapacitated, unable to execute its interventionist import substitution policy [
24]. Simultaneously, the external debt crisis in Amazonian countries was viewed as a chance to reconcile global interest in Amazon rainforest conservation with the imperative need for national economic growth, a pivotal factor in ending the crisis. This period witnessed a stand-off between ecological objectives and economic aims, leading to a stalemate by the mid-1980s.
A notable excerpt illustrates an ideological, fascist bias prevalent during that time [
25]: “It was believed that many problems would cease with communism. But agitators merely swapped red shirts for green ones. First, they fought the dictatorship, then defended Indigenous rights, and now aim to save the forest...” [
13] (p. 111, translated). This statement simplifies the situation considerably but portrays an authoritarian logic that pervaded the Brazilian State, portraying those advocating for Indigenous rights as representatives of foreign interests hindering patriotic aspirations. Similarly, an article titled “The conspiracy against Brazil” published on 9 August 1987, in the newspaper
O Estado de S. Paulo alleged that the Missionary Council for Indigenous Peoples
10 conspired to undermine Brazilian sovereignty and grant access to mineral resources on Indigenous lands to foreign companies.
The disputes concerning Yanomami land possession and utilization rights, which legally pertain to them, highlight a prevalent problem of normative efficacy within the legal framework. Consequently, it is necessary to explore the reasons behind the consistent denial of Yanomami rights, revealing an ideological foundation entrenched in the political doctrine of the authoritarian regime that governed Brazil for more than twenty years. This autocratic standpoint disregarded Yanomami perspectives, impeding any legal or communicative engagement.
During the first Yanomami humanitarian crisis, the Brazilian National Constituent Assembly formed the basis for the new legal framework following the end of the Dictatorship. The military aimed to uphold the integrationist policy in line with national security doctrine during debates on various rights. However, organized Brazilian society leveraged social movements to advance towards a democratic State, directly electing constituent members during a wave of democratic fervor. The text put forward in National Congress concerning Indigenous rights was strongly influenced by Indigenous leaders across the country, such as Raoni Metuktire
11.
Article 231 of the 1988 Constitution reaffirmed Indigenous rights over traditionally occupied lands, obligating the Union to demarcate
12, protect, and respect these territories. The concept of Indigenous people holding original property rights persisted in Brazilian Law despite any State acts. Indeed, Federal Law No. 6.001/1973, supported by the 1988 Brazilian Constitution, mandated immediate demarcation for legal certainty. Additionally, Article 20, XI of the 1988 Constitution asserted the Union’s ownership of Indigenous lands irrespective of demarcation, pre-dating any State actions. Therefore, the inherent and unalienable rights of Indigenous communities align with land rights held by the Union. Although the Union possesses the land ownership rights, as stipulated in Article 231, Paragraph 2, of the 1988 Constitution, Indigenous groups hold the right to possession and exclusive use of the resources within their land, including its soil, rivers, and lakes.
The administrative demarcation of the Yanomami Indigenous Land (YIL), conducted by Funai, was approved in accordance with Article 231 of the 1988 Constitution and Decree No. 22/1991. However, the absence of specific determinations on borders influenced the demarcation process. Several economic agents in the mining, agricultural, and construction sectors saw indigenous land rights as an unwarranted hindrance to national economic development, strongly influencing the pace of action by State agents.
On May 25, 1992, after the Brazilian dictatorship had ended, the administrative demarcation of the YIL was finally sanctioned, in accordance with Resolution No. 12/1985 of the IACHR. This action aligned with the principles outlined in Brazilian Law. The YIL covers an expanse of 9,664,975.48 hectares, spans a perimeter of 3370 kilometers, and encompasses an area equivalent to the territorial dimensions of the Portuguese State.
3.2. The 1988 Constitutional Rights of the Yanomami to Traditional Lands and the Protection of the Amazon Rainforest
It is feasible to outline the key aspects of the correlation between indigenous land rights and environmental conservation, which are particularly noteworthy in their indirect safeguarding of the environment when States uphold human rights. These dynamic forms a genuine framework for the administration of natural and environmental resources within the realm of collective land rights.
The transboundary nature of atmospheric pollution has prompted discussions on agreements concerning international responsibility and the need for cooperation to address regional or global environmental issues. The Stockholm Declaration, drafted in 1972 during the United Nations Conference on the Human Environment, established among its principles the duty to not cause harm beyond national jurisdiction in the exploitation of sovereign natural resources.
The Amazon rainforest is a unique region that not only exists within a specific geographical boundary but also holds significant regional and global importance. This expansive ecosystem spans nine different countries, all but one of which are signatories to the 1978 Amazon Cooperation Treaty. Alongside the Brazilian Amazon, this includes areas in Bolivia, Colombia, Ecuador, Guyana, Peru, Suriname, Venezuela, and even the French Guyana.
Article 225 of the 1988 Constitution asserts the right of everyone under Brazilian jurisdiction to a healthy and ecologically balanced living environment. Moreover, in its Paragraph 4, the same Article designates the Amazonian rainforest as a crucial part of the Brazilian heritage, emphasizing that its utilization, including mineral resources, must comply with laws ensuring environmental preservation.
Regarding mining activities, for example, the 1988 Constitution grants exclusive power to the National Congress to authorize exploitation and use of resources in Indigenous lands. However, the absence of a specific Federal Law regulating mining on Indigenous lands rendered most mining initiatives illegal. The absence of clear regulations did not prevent companies from seeking mining concessions, despite the lack of legal production of gold in the Federal State of Roraima, where live the Yanomami. This was enabled by certain provisions in decrees
13 that allowed permits on Indigenous lands to private companies [
26], contrary to constitutional provisions.
The legal safeguarding of indigenous land across the ancestral domains of indigenous and tribal communities entails ensuring environmental protection. This pertains to any actions or inactions by the State that might harm the ecological equilibrium within these lands. Such protection stems from the recognition that ecological significance is inherently embedded in the legally safeguarded elements like land and natural resources, constituting the collective property. This significance permeates through these elements due to the intricate interdependence between the indigenous population and the territories they inhabit [
27].
The aspect of safeguarding the environment is further strengthened by granting indigenous populations the authority to resist intrusive interventions, even if sanctioned by authorities, that could significantly disrupt their living environment and contradict their ancestral traditions and practices. Hence, the connection between the ecological aspect of the rights pertaining to natural resources and the traditional, interconnected lifestyle of the indigenous people allows for the development of this role in environmental protection.
The interconnection between the organic utilization of natural resources by indigenous communities and the legal safeguarding of the environment aligns synergistically due to the harmony between customary land utilization and the conservation of ecosystems. This harmonious relationship emphasizes the direct environmental preservation of collective property, inherently tied to its ecological significance, facilitating the establishment of a framework for the joint management of environmental resources within the ancestral territories by both the State and the indigenous communities. In this context, any economic activities permitted by the State within the territory—particularly those that are less intrusive or have been mutually agreed upon with indigenous peoples—should be preceded by an autonomous evaluation of their social-environmental impact [
27].
The management of natural resources by the State significantly relies on the customary utilization by indigenous communities. Specifically, concerning the government’s aim to entirely conserve the natural environment by establishing a national reserve, collective property rights persist and remain functional due to their innate harmony with the environment. The ecological function ingrained within the law is further defined within the framework of achieving a purely governmental objective, specifically environmental protection through reserve creation.
3.3. The Protection of the Amazon Rainforest in Brazil and Addressing Global Climate Change: The Amazon Fund
During the presidency of Fernando Collor, the first democratically elected Brazilian president since 1960, the Minister of Foreign Affairs, Celso Lafer, marked a monumental triumph for the Government: The holding in Brazil of the United Nations Conference on Environment and Development (UNCED) [
28]. It provided the platform for the signing of two of the most paramount environmental treaties ever inked: the Framework Convention on Climate Change (FCCC) and the Convention on Biological Diversity (CBD). The implementation of these two instruments signaled a distinctive shift toward the development of specialized environmental legal standards.
The FCCC, a framework convention, outlines general duties for its member States. These duties mainly emphasize fostering cooperation without specific enforceable directives. In contrast, and lineate more precise responsibilities guided by the principle of common but differentiated responsibilities, especially for the more developed States. These obligations necessitate the reduction of greenhouse gas emissions (GHG) to the levels recorded in 1990, without reciprocal commitments. Fundamentally, the legal character of the FCCC suggests that the obligations of member States ought to be defined in subsequent instruments formulated during yearly Conference of Parts (COP) following the FCCC’s enactment.
In this systemic framework, within the COP 3 context, an adjunct protocol was adopted under the FCCC called the Kyoto Protocol, introducing two fundamental approaches. Initially, it enforces specific limits on GHG emissions by industrialized States. Secondly, it introduces three distinct mechanisms to assist States Parties in meeting their obligations to reduce GHG emissions, specifically the Clean Development Mechanism (CDM) and Emissions Trading (ET). These mechanisms operate based on market principles and emphasize flexibility. Notably, the CDM allows Annex I-listed States under the FCCC to execute projects reducing GHG emissions in non-Annex I undeveloped States
14. This allows developed nations to acquire carbon credits, aiding in fulfilling their conventional commitments. Conversely, ET mechanisms enable States to negotiate acquired credits directly or indirectly, establishing an authentic carbon marketplace [
29].
Forests play a crucial role in fulfilling the objectives outlined by the FCCC and its derived mechanisms, especially in reducing CO
2 emissions and its presence in the atmosphere. Firstly, forests act as reservoirs, integral parts of the climate system housing elements that, when released into the atmosphere, transform into GHG. In this context, the FCCC aims to prevent the destruction of forests from becoming a significant source of GHG emissions, particularly by averting the dispersion of CO
2 into the atmosphere. This risk primarily arises from deforestation practices, notably those involving fires.
With this objective, REDD+ was established at COP 14 in 2008, held in Poznan. While REDD+ was designed to fulfill FCCC obligations rather than those of the CBD, there are discernible REDD+ advancements supporting forest ecosystem conservation. It is designed as an international financing mechanism for projects promoting sustainable natural resource utilization in developing States—such as most Amazonian countries—with the goal of curbing GHG emissions into the atmosphere. In the context of preserving the Amazon rainforest, it becomes economically beneficial for local stakeholders to maintain it.
In 2007, a coalition of non-governmental organizations proposed a pact to the Brazilian Congress outlining the need for R$ 588 million to achieve zero deforestation in the Amazon. To address this, President Lula da Silva signed Decree No. 6.527/2008, establishing the Amazon Fund managed by the National Bank for Economic and Social Development (BNDES). Concerns within the Government about losing sovereignty over Amazon projects funded by foreign donors were gradually dispelled. The BNDES was tasked with managing the fund, ensuring that despite foreign donations, operations remained solely under Brazil’s control [
30].
The government of Germany, the government of Norway, and Petróleo Brasileiro S.A. (Petrobras), a publicly traded company with the Brazilian government as majority shareholder, became the Amazon Fund’s donors, contributing over a billion dollars. This surpassed the initial estimate in 2007, nearly doubling the anticipated funds required to combat deforestation [
31].
The Amazon Fund gained eligibility for REDD+ payments under Decree No. 8.576/2015, signed by Brazilian President Dilma Rousseff, recognized by the FCCC. Modifications made by Decree No. 8.773/2016 emphasized compliance with deforestation prevention guidelines. This established Brazil as responsible for the largest REDD+ program globally, combining international cooperation with local governance and project implementation [
32].
REDD+ initiatives in the Amazon engaged civil society, including historically excluded populations, and aimed to economically value the standing forest. Brazil maintained sovereignty over the Amazon, freely managing REDD+ resources within collectively defined guidelines that included indigenous participation, a fact widely publicized internationally.
Honoring both international and national commitments, records reveal a substantial decline in annual Amazon deforestation in Brazil between 2004 and 2012, dropping from 27,772 km
2 to 4656 km
2 [
23]. Unlike the preceding time, this period saw a surge in inspection operations, attributed to the implementation of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) [
33]. During the reduced deforestation period, donations acknowledged Brazil’s efforts without demanding additional reductions through the Amazon Fund projects, considering the donations as recognition for Brazil’s accomplishments [
34].
For several years, REDD+ has been implemented in the Brazilian Amazon, notably through initiatives like the Amazon Fund. This fund supports various local projects aimed at achieving sustainable socio-economic development with an ecological focus. The primary aim of applying REDD+ in the Brazilian Amazon is to decrease GHG emissions and enhance forest carbon stocks, aligning with the FCCC’s objectives [
35].
4. Brazilian Law on the Amazon Rainforest during Times of Democratic Crisis
The democratic crisis in Brazil is a complex phenomenon leading to the erosion of conventional representative systems and a widespread unease regarding the present state of democratic operations. This crisis comprises situational factors such as the impeachment proceedings against President Dilma Rousseff, the emergence of neoconservative and extreme right-wing influences, alongside underlying structural influences like historical political instability within capitalist system, the perpetual existence of penal state practices that impact peripheral countries, shaped by legacies of slavery, dependency, and neoliberalism [
36].
In 2013, amidst a turbulent political landscape in Brazil, deforestation in the Amazon surged once more, resulting in the destruction of 9762 km
2 of forest by 2019 [
37]. The PPCDAm, initially overseen by the Staff of the Presidency until March 2013, transitioned management to the Ministry of the Environment from 2016 to 2020. After the impeachment of Rousseff
15, President Michel Temer, during his tenure from 2016 to 2018, initiated austerity measures such as implementing spending limits and reducing budgets. Simultaneously, he pursued a strategy focusing on specific regions for development, which included areas encompassing protected indigenous lands and environmental reserves [
38]. Efforts in public policies aimed at curbing deforestation and wildfires in the Amazon heavily rely on government involvement, spanning municipal, state, or federal levels. Additionally, financing conservation initiatives through taxes or contributions plays a pivotal role, subject to notable fluctuations over time.
The United Nations Special Rapporteur on Indigenous Peoples’ Rights, Victoria Tauli-Corpuz, visited Brazil in 2016. She warned that the upheaval risked impeding State measures benefiting Indigenous peoples and their land and cultural rights. She acknowledged Brazil’s advanced legislation on Indigenous rights but expressed concern over the Government’s slow progress in implementing recommendations and resolving long-standing Indigenous issues. Reports highlighted Brazil’s failure to protect the YIL from illegal activities like mining and logging, even though these lands were officially demarcated [
39].
In 2017, the Government attempted to overhaul the demarcation system for Indigenous lands through Ordinance No. 68/2017 issued by the Minister of Justice
16. This move aimed to integrate viewpoints favored by agribusiness entities and the ruralist caucus in Congress. The ordinance granted the Ministry of Justice the authority to review Funai’s administrative processes, potentially diminishing its influence and amplifying the impact of pressure groups aligned with ruralist interests. However, due to widespread criticism, the Minister revoked the ordinance the following day, triggering significant skepticism about the Government’s commitment to Indigenous land demarcation procedures [
40].
4.1. The Authoritarian Populism and the 1988 Constitutional Rights of the Yanomami to Traditional Lands
In 2018, Jair Bolsonaro’s election as President signaled a return
17 to the political current that had governed during Brazil’s Dictatorship. Bolsonaro’s historical stance against Indigenous and Environmental rights was evident even before his presidency. As a Federal Deputy, he aimed to render ineffective the demarcation of YIL. His argument framed Indigenous reserves as a threat to national security due to demographic voids, advocating occupation as a defense strategy [
41].
Bolsonaro is part of a far-right global movement that can be identified as authoritarian populism [
42]. This approach aims to identify shared characteristics, such as governmental constraints on political engagement and policies that selectively harm marginalized communities. Consequently, the far-right gains traction by leveraging populist rhetoric in response to grievances stemming from the shortcomings of neoliberalism. Far-right leaders, like Bolsonaro, exploit these grievances, offering authoritarian measures as a solution [
37].
During his address at the United Nations General Assembly under his presidential tenure, Bolsonaro conveyed his stance against further demarcation of Indigenous lands. This position marked a regression in Indigenous rights within Brazil, breaching Article 19 of Federal Law No. 6.001/1973, Article 21 of the ACHR
18, and Article 231 of the 1988 Constitution. Bolsonaro explicitly stated that Brazil would not expand its Indigenous land by 20%, contrary to the desires expressed by certain States [
43]. This ideological opposition to Indigenous land demarcation is rooted in prioritizing economic interests over human dignity and environmental concerns. Bolsonaro’s presidency saw a surge in illegal mining activities on Indigenous lands, reflecting a severe setback in upholding Indigenous rights. On the already demarcated Indigenous lands, he added: “The Indian does not want to be a poor landowner on rich land. Especially on the richest lands in the world. This is the case of the Yanomami and Raposa Serra do Sol reserves. In these reserves, there is great abundance of gold, diamond, uranium, niobium, and rare earths, among others” [
44].
Reports indicated a significant increase in mining activities in YIL since 2019, with the government seemingly complicit in facilitating illegal mining. Funai’s documents revealed military involvement with miners and a lack of action to combat illegal activities, leading to health and environmental crises among the Yanomami. The neglect of the Yanomami’s health, evident in rising malnutrition rates among children and pregnant women, indicates the ongoing epidemic outbreaks and the Government’s failure to address the community’s needs.
Prior to Bolsonaro assuming the Presidency of Brazil, Funai recorded 5000 miners in YIL in 2016, a significantly higher count than what was reported by IACHR in 1995 [
45]. However, by 2020, this number had surged to 20,000, indicating the notable expansion of gold mining activities in Roraima Federal State. Reports indicate a staggering 3350% surge in mining activities in YIL between 2016 and 2020 [
46], encompassing an area of 1557 hectares [
47], a fact uncontested by the Brazilian State [
48].
In 2021, Funai blocked the entry of the Oswaldo Cruz Foundation team to YIL, citing concerns about potential COVID-19 transmission. This team aimed to provide medical support to Indigenous people battling malaria and malnutrition, following strict healthcare protocols [
49]. In terms of malnutrition, records from 2015 to 2021 illustrate a rise in underweight Yanomami children from 49.3% to 56.5%, while almost 46.9% of pregnant women were underweight in 2022 [
50]. Hunger persists and is frequently linked to various factors like shifts in climate patterns and the aftermath of illegal mining activities, signifying ongoing health challenges in the YIL and governmental inaction towards the well-being of these communities [
51].
4.2. The Authoritarian Populism and Inter-American Rights of the Yanomami to Traditional Lands
The agents of the Brazilian State set the stage for heightened illegal encroachment on Indigenous communities, environmental activists, and advocates for human rights, mirroring the tactics employed during the Brazilian dictatorship and culminating in a renewed period of socio-environmental strain for the Yanomami. With domestic mechanisms failing to effectively safeguard Indigenous rights, much like in the 1980’s, the institutions within the inter-American human rights system are once more activated, underscoring the emergence of a second humanitarian crisis for the Yanomami.
The appeal submitted by the Hutukara Yanomami Association and Brazil’s National Human Rights Council pertains to the inhabitants of YIL, encompassing 321 communities that include recently contacted groups and those who choose to remain in voluntary isolation. Because of failures in healthcare and the intrusion of outsiders into Indigenous lands, in 2020, the IACHR received a plea for precautionary measures to safeguard the Yanomami and Ye’kwana
19 amidst the COVID-19
20 pandemic. These individuals are deemed to be exceptionally vulnerable during the COVID-19 pandemic due to their heightened susceptibility to respiratory ailments.
The risk is exacerbated by the rapid increase in infections within their territory, compounded by deficiencies in the healthcare system designed for Indigenous populations, which have worsened amid the pandemic. Additionally, the presence of approximately 20,000 illegal miners on their land is contributing to the spread of the virus from urban areas. Yanomami Special Indigenous Health District was particularly flagged for its critical condition in Brazil. Furthermore, these Indigenous groups faced both the threat of disease and mercury contamination due to increased mining activities and the lack of intervention by the Brazilian State to curb illegal practices. Lastly, the appeal highlights the violence perpetrated by miners against the indigenous peoples, particularly their leaders.
In Resolution No. 35/2020, the IACHR underscored the Brazilian State’s responsibility to afford special protection to Indigenous communities, acknowledging their historical marginalization and discrimination. Specifically acknowledging the Yanomami’s perpetual exposure to non-Indigenous incursions into their lands, estimating around 20,000 miners within the YIL, the IACHR criticized the Government’s lack of adequate response measures. The presence of non-Indigenous individuals has fostered hostility and violence against the Yanomami, hampering the delivery of medical services [
48].
Consequently, the IACHR called for precautionary measures, urging Brazil to take necessary actions to protect the health, lives, and personal integrity of the Yanomami and Ye’kwana. This included implementing preventive measures against COVID-19 spread and providing culturally appropriate medical care. The Government ought to implement measures that align with the cultural context to curb the transmission of the COVID-19 virus. Furthermore, it should ensure that the affected communities receive medical support that is not only available and accessible but also meets high-quality standards, adhering to relevant international norms.
While the precautionary measures were implemented, the IACHR obtained reports indicating a significant rise in the infiltration of unauthorized third parties into indigenous lands. These individuals were primarily engaged in mining and logging activities. Within this scenario, the Yanomami, Ye’kwana, and Munduruku Indigenous communities were found to be vulnerable to incidents such as killings, intimidations, assaults, sexual violence, and health issues exacerbated by the prevalence of diseases like malaria and COVID-19. This occurred amid insufficient medical assistance and alleged contamination from mercury stemming from mining activities. Subsequently, in 2022, the IACHR submitted a request for provisional measures to the I/A Court H.R., aimed at protecting to protect the rights to life, personal integrity, and health of members of the Yanomami, Ye’kwana, and Munduruku indigenous peoples [
52].
Between 23 and 25 October 2023, a team from the I/A Court H.R. and the Registrar’s Office conducted a visit to YIL, with the objective of conducting on-site monitoring to assess the implementation status of the provisional measures outlined in the Order of 2022. The Vice-President of the I/A Court H.R. thanked the State of Brazil for all the logistics support, organization and coordination efforts that made the visit possible [
53].
4.3. The Authoritarian Populism and the Amazon Fund
By dismantling specialized departments, placing Ricardo Salles
21 in a Ministerial position, substituting public officials, and minimizing regulations, the implementation of even the most stringent environmental laws is undermined by the authoritarian populist Government in Brazil [
54]. Through deregulation measures, the objective has been to systematically weaken environmental protection. As a result, Environmental rights and institutions lack the necessary conditions for effective enforcement.
President Bolsonaro, through the Decree No. 9.759/2019, promoted the extinction of management bodies of the Amazon Fund, which corresponded to the blocking of the initiative. With the repeal of Decree No. 8.576/2015 through Decree No. 10.144/2019, there was a significant narrowing of the collective degree of CONAREDD+ [
55]. The older decree tasked CONAREDD+ with fostering harmony among forest policies, biodiversity, and climate change. However, the Decree No. 10.144/2019 did not explicitly mention to biodiversity, yet this does not discount the Amazon Fund’s role in biodiversity preservation. In fact, the Fund’s core objectives encompass not just fighting deforestation and fires but also safeguarding biodiversity and fostering sustainable practices.
These occurrences shed light on why the Bolsonaro Administration appears unconcerned about deforestation. The escalating rates of deforestation suggest that the administration’s approach to environmental governance is yielding results. Recent data spanning 2019 to 2021 depict a worrisome trend, with Amazon rainforest destruction surpassing an average of 10,000 km
2 per year, a staggering 56.6% increase compared to the period from 2016 to 2018 [
56] (p. 96).
The Amazon Fund faced suspension in 2019 due to altered priorities and governance by the Brazilian government, prompting displeasure from key donors, Norway and Germany [
57] (p. 97). The freezing of funds occurred due to the implementation of Decree No. 9.759/2019, which abolished the involvement of civil society stakeholders in both the Amazon Fund Steering Committee (Cofa) and the Amazon Fund Technical Committee (CTFA). The Cofa served as a collaborative steering committee, acting as a participatory platform that validated the established priorities for fund utilization. Alongside BNDES’s professional and autonomous management, these elements constituted essential components that instilled confidence in the governance structure for the donors [
58].
One of President Lula’s first acts on 1 January 2023 was the enactment of Decree No. 11.368/2023, which reinstated the involvement of civil society representatives in the Cofa and CTFA. Subsequently, discussions with donors were rekindled, and the governments of Norway and Germany approved the release of frozen funds. The Brazilian government also commenced negotiations with several countries to secure additional donations for the Fund [
59]. This decree nullifies alterations implemented by the Bolsonaro Administration and empowers the Ministry of Environment to provide funding for the Amazon Fund, restoring its dormant entities and functions.
5. Conclusions
Brazilian Law has recognized Indigenous possession of Indigenous lands since 1934, granting them exclusive rights over natural resources. Despite this legal safeguard, the Yanomami have endured decades of conflicts driven by the Brazilian State’s support for non-Indigenous groups. These clashes have included illegal resource exploitation, confrontations with prospectors, and construction on their territories. A crucial strategy involves enforcing the law and completing the demarcation of Indigenous lands, affirming their original possession through a declaratory act as outlined in Federal Law No. 6.001/1973, aligned with 1988 constitutional provisions.
The State’s historical neglect in demarcating these lands, influenced by conflicting political ideologies, has exacerbated land disputes. These conflicts involve incursions by land invaders, prospectors, and loggers, inflicting harm on Indigenous communities. In some instances, escalating violence has led to humanitarian crises, as seen in the Yanomami’s experiences during the 1980s.
By this time, the disregard for the Yanomami’s land rights intensified, prompting the IACHR’s Resolution No. 12/1985. This resolution not only spotlighted the humanitarian crisis faced by the Yanomami but also signaled the start of efforts to shift the political landscape in Brazil, aiming to address these violations. However, recent changes in political dynamics have rekindled obstacles to Indigenous rights in Brazil.
Since 2013, Brazil has been engulfed in an ongoing political crisis that escalated into an economic downturn in 2015. This upheaval has hindered the Government’s ability to maintain historically low levels of deforestation and fires in the Amazon. Over the last years, however, the annual destruction rate surpassed 10,000 km2 on average. From a legal perspective, the substantial reduction in Brazil’s conservation endeavors for the rainforest since 2014 and the suspension of the Amazon Fund related to REDD+ since 2019 are directly connected to the State’s breach of environmental and human rights obligations.
Specifically concerning the Yanomami, despite strong Indigenous rights embedded in Brazilian Law, the challenge persists due to political forces shaping the country during the recent crisis of Democracy. In 2020 and 2022, the IACHR and the I/A Court H.R. took a stance against Brazil. In both instances, the fundamental issue arose from the State’s neglect in fulfilling its obligation to safeguard the lives, personal well-being, and cultural heritage of the Yanomami people. This encompassed the protection of the YIL, in accordance with the jurisprudence pertaining to Article 21 of the ACHR.
Shortly after assuming office, President Lula endorsed a set of decrees and initiatives revitalizing socio-environmental public policies and instigating alterations in the governmental framework. This encompasses the establishment or revival of new ministries, internal restructuring, and the reallocation of duties. Through these actions, he progresses in his dedication to enhancing the safeguarding of traditional peoples and communities while addressing the issues of deforestation and climate change.
On 8 January 2023, there was an outbreak of vandalism by sympathizers of Bolsonaro aiming to push a coup against the institutions of Brazil’s democratic rule of law. The incidents took place at the National Congress, the Planalto Palace, the Supreme Federal Court, and the Esplanade of Ministries. After a few hours of disorientation and a certain convenience, the State agents took action to restore order. Criminal proceedings are ongoing, but the climate of political instability persists. This may pose challenges for the implementation of environmental and human rights in Brazil in the near future.
Acknowledgments
The author acknowledges the support given by the Brazil-China Sociocultural Institute (Ibrachina).
Ethics Statement
Not applicable for studies not involving humans or animals.
Informed Consent Statement
Not applicable.
Funding
This research received no external funding.
Declaration of Competing Interest
The author declares that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.
Footnotes
1. Scientists proposed the idea that the Yanomami might be the progeny of an ancient Amerindian community existing a millennium ago. This group lived in considerable seclusion for an extended period in the highlands of the upper Orinoco and the sources of the upper Rio Parima (Serra Parima).
2. Created in 1967 to replace the Indian Protection Service (1910), the National Indigenous Foundation (Funai) is the official indigenist body of the Brazilian State.
3. Article 154 of the 1937 Constitution: “The possession of lands of forest-dwelling peoples who are permanently located in them will be respected, thus, being forbidden to alienate them” [60]. Article 216 of the 1946 Constitution: “Forest-dwelling aborigenes shall have the possession of the lands in which they are permanently located as long as they do not transfer it” [61].
4. These restrictions are present, for example, in Federal Law No. 6.001/1973, head of Article 18: “Indigenous lands may not be the object of lease or of any legal act or business that restricts the full exercise of direct possession by the Indigenous community or by forest-dwelling individuals”.
5. “The recognition of the right of Indigenous and tribal groups to the permanent possession of the lands inhabited by them under the terms of Article 198 of the Federal Constitution is independent of its demarcation and will be ensured by the federal agency of assistance to forest-dwelling peoples, meeting the current situation and the historical consensus on the seniority of their occupation without prejudice to the appropriate measures that, in the omission or error of said organ, any of the Powers of the Republic take”.
6. Brazil deposited an instrument to ratify the OAS Charter with the Pan American Union, in Washington DC, United States, on 13 March 1950. It entered in force on 13 December 1951.
7. Article 53, “e” of the OAS Charter provides that “The Organization of American States accomplishes its purposes by means of: […] the Inter-American Commission on Human Rights”.
8. Tim Coulter (Indian Law Resource Center), Edward J. Lehman (American Anthropological Association), Barbara Bentley (Survival International), Shelton H. Davis (Anthropology Resource Center), George Krumbhaar (US Survival International), and others.
9. The Brazilian State would only sovereignly recognize the jurisdiction of the I/A Court H.R. much later, in 1998.
10. Established in 1972 under the auspices of the National Conference of Bishops of Brazil (CNBB), its primary objective is to champion the cultural diversity rights of indigenous groups. The initiative strives to empower these communities by fostering self-reliance in developing alternative, multi-cultural, grassroots-driven, and democratic initiatives. This effort stands against the neglect of their rights and the push to assimilate these communities into the dominant societal norms.
11. Raoni Metuktire, commonly known as Chief Raoni, is a prominent indigenous leader from the Kayapó people in Brazil. He gained international recognition for his lifelong advocacy efforts in protecting the Amazon rainforest and defending the rights of Indigenous communities. Raoni has been a vocal figure in raising awareness about environmental issues, particularly concerning deforestation and the preservation of Indigenous territories.
12. The Brazilian registration system, which registers and publicizes land rights over real estate, includes demarcation [62]. Regarding Indigenous lands, real estate registry is merely declaratory but important to protect the Indigenous’ possession and enjoyment rights.
13. For example, Decree No. 88.985/1983—unconstitutionally, in the light of the 1988 constitutional regime—regulates Articles 44 and 45 of Federal Law No. 6.001/1973.
14. Brazil is not listed in Annex I of the FCCC.
15. Beginning on 1 January 2015, Dilma Rousseff’s second term in office was marked by significant legal and political tribulations, starting with opposition politicians’ intention to recount votes, the action of impeachment of that slate before the Superior Electoral Court, and the law bills voted to make it even more difficult for the Government to meet its fiscal target. Although provided for in the democratic order of Brazil, impeachment has, as a legal condition, the undisputed proof of an intentional crime of responsibility during a mandate.
16. Alexandre de Moraes would become a Minister of the Federal Supreme Court, Brazil’s constitutional court, on 22 March 2017, after Michel Temer’s appointment, two months after signing that ordinance as Minister of Justice.
17. Jair Bolsonaro’s support of Dictatorship crimes is notorious. In 1999, he openly defended the torture and execution of Brazilians in a television interview. In 2016, in a speech to the National Congress, the then Federal Deputy paid tribute to Colonel Carlos Alberto Brilhante Ustra, a recognized torturer.
18. Although the American Convention on Human Rights (ACHR) was adopted in 1969 and entered into force in 1978, Brazil only deposited the letter of accession on 25 September 1992.
19. According to the IACHR, a population of about 25,000 and 700 Yanomami and Ye’kwana inhabit the YIL, respectively, in 321 villages.
20. COVID-19, which stands for “Coronavirus Disease 2019”, is a highly contagious respiratory illness caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The virus was first identified in 2019 and it subsequently led to a global pandemic.
21. A strong advocate for aggressive agribusiness practices, Ricardo Salles echoes Bolsonaro’s view that economic growth should not be hindered by environmental considerations. Upon assuming the role of Environment Minister, Salles initiated actions against civil servants dedicated to enforcing environmental protection laws. Instead of qualified civil servants, the Minister appointed military personnel who align with Bolsonaro’s political ideology.
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