Brazilian court is the first in the world to recognize the Paris Agreement as a human rights treaty

Supreme Court ruling forces Brazilian government to reactivate its climate fund and has implications for international law

Brazil’s Supreme Court has become the first in the world to recognize the Paris Agreement as a human rights treaty, a decision that has important implications for national and international law.

The statement was made as part of the court’s first climate change ruling, which ordered the Brazilian government to fully reactivate its national climate fund.

“Environmental law treaties are a type of human rights treaty and, for this reason, enjoy supranational status. There is therefore no legally valid option to simply fail to address climate change,” the ruling said.

Last week’s judgment was the culmination of a lawsuit filed two years ago against the Brazilian federal government by four political parties: the Workers’ Party, the Party of Socialism and Freedom, the Brazilian Socialist Party and the Sustainability Network.

They pointed out that the climate fund (Fundo Clima) created in 2009 as part of Brazil national climate policy plan was inoperative in 2019; annual plans had not been prepared and money had not been disbursed to support projects that mitigate climate change.

The court held a public audience in September 2020, which included scientists, academics, and individuals representing civil society and indigenous groups.

In the jugementendorsed by ten of the 11 presiding judges, Judge Luís Roberto Barroso noted the huge increase in deforestation in the Brazilian Amazon in 2021 – a problem that showed no signs of slowing down. Brazil is the fifth largest carbon emitter in the world and deforestation is its biggest source of emissions.

The Supreme Court recognized the climate fund as the main tool available to reduce Brazil’s emissions. Failure to use it was therefore a “by omission” violation of the national constitution, which obligates the state to protect the environment for present and future generations.

The ruling notes that the government “hastily” resumed some of the climate fund’s activities after the legal challenge was filed, but not all. He ordered the state to properly reactivate the fund, prepare and submit annual resource allocation plans, and disburse funds to projects.

The Brazilian government has been approached for comment.

Brazil is one of the world’s hotspots for climate litigation outside the United States, Australia and Europe, but it was the first case to go to the country’s Supreme Court.

The court has yet to rule on at least two other climate-related lawsuits. One calls for the proper implementation of the action plan for the prevention and control of deforestation in the Amazon, a set of measures and financial guidelines agreed in 2004 by the federal government to combat deforestation and degradation of the Amazon.

Another disputes the government’s inability to properly manage the Amazon Funda forest preservation initiative established in 2008. International its funding has gone down since the election of Jair Bolsonaro as president.

The cases have all been brought by political parties as this is the only way to hear allegations of human rights violations directly before the Supreme Court.

Caio Borges, law and climate portfolio manager at Instituto Clima e Sociedade (iCS) in Brazil, said Climate Home that the court’s declaration that the Paris Agreement is a human rights treaty gives it a legal status superior to national law. “So in future cases, if there is a challenge to a policy or law in relation to the Paris Agreement, the courts will apply that understanding and there will be a presumption that the government will have to demonstrate that the dispute law is not in conflict with [it].”

Coming in the same week as the The decision of the United States Supreme Court to hamper the power of its Environmental Protection Agency to regulate carbon emissions, Brazil’s move could also have implications outside its own borders.

Borges noted that human rights organizations were unhappy with the final text of the Paris Agreement, which relegated explicit mention of human rights to the preamble. “So having a constitutional court labeling the Paris Agreement a human rights treaty can spur a global movement for the courts to follow suit in that recognition.”

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