Press Release

SRESCER expresses deep concern regarding Brazil oil spill and call urgently the full implementation of the environmental contingency plan in the affected areas

11 november, 2019

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Washington, D.C. - The Special Rapporteurship on Economic, Social, Cultural and Environmental Rights (SRESCER) of the Inter-American Commission on Human Rights (IACHR) expresses its deep concern before the oil spill registered in the northeast of Brazil, lamenting the consequences of this fact to the environment and the affected ecosystems, as well as to the life, health, and diverse other rights of the population. Specifically, since August 30th it was registered signs of petroleum in the State of Paraíba and, from there, the oil was found in the beaches of Pernambuco and Sergipe. Since then, another six states of the Northeast were affected, since Maranhão to Bahia. On November 9th, it was verified that the oil has even affected the Southeast of the country. In total, until the present moment it can be numbered 10 states, approximately 110 municipalities, and 409 locations, according to IBAMA and Brazil`s Environment Ministry data, as well as over 225 beaches were reached by the oil spill – according to the national media -, and it is considered the country`s biggest environmental tragedy in terms of extension, which impact overcomes 2.500 kilometers of extension.

Based on that, the Special Rapporteurship on DESCA of the IACHR deeply regrets the damages that this tragedy implies to Brazil, and gets worried with the fact that, despite the validity of a National Contingency Plan for Oil Pollution Incidents (National Plan), it was activated only 41 days after the first appearance of petroleum in the country`s shore. This Plan presents the government`s structure of institutional response before these types of accidents, in a way to attribute responsibilities to diverse bodies, and stablishes a response methodology with its correspondent arrangements and financial organization, aiming to permit that the affected States are urged to participate in the decision making.

By its turn, the federal government affirms that it has been acting in the issue since September 2nd. On October 5th, the President issued a decree claiming for an inquiry of the accident, and 2 days later the Environment Ministry, Ricardo Salles, visited the region. In addition, the government declared the configuration of the Monitoring and Evaluation Group (GAA, by the Portuguese acronym), formed by the IBAMA, the Brazilian Navy, and the National Petroleum Agency. In its turn, the leading experts in the field informed that, although the sighting occurred in a gradual way due to the big volume of oil registered, it shows the urgency of a full activation of the National Plan, as well as the adequate transparency of the work done by GAA. In the same way, the SRESCER would like to emphasize that the local authorities – as the Environment Secretary of the Municipal government of Conde, in João Pessoa, Paraíba - warned that the federal agencies responsible for the issue took too long to arrive in the areas affected by the oil. Consequently, groups of the civil society organized themselves to help with the cleaning up operation of the beaches and, according to IBAMA, it was collected over 4,000 tons of oil since its first appearance in the beaches. However, only on October 21st the Presidency authorized the employment of the army in the collection of the material.

It is important to state that the Federal Public Prosecutor`s Office (MPF) of the 9 States of the northeast, through its legal and institutional competencies, filed on October 18th a legal suit claiming that the Justice should oblige the Federal Government to activate in the National Plan in 24 hours to minimize the environmental damages and avoid harm to public health, with a R$ 1 million daily fine in case of noncompliance. Although the suit was initially denied by the Federal Tribunal, the TRF 5 issued, on October 31st, a decision in the appeal obliging the Union to convene a representative of each state Environmental body that was affected to participate in the collegiate of the National Contingency Plan Committee. Beyond that, the measure confers a 48 hours’ deadline for the Union comply with the court order, under a penalty of R$ 50 thousand daily fine.

On the other hand, the SRESCER monitors closely the evolution of the inquiry, and its allocation of responsibilities and repairs. Therefore, according to the information presented, on November 1st the Federal Police served search and seizure warrants against two companies linked to a Greek maritime agency suspect of the oil spill or leak out. In spite of this inquiry, until the present moment there are no conclusive proofs about the origin of the oil, and the information provided by the authorities to the press is that the oil origin would be Venezuelan, and it would have come to Brazil through a ship under a Greek flag. In this scenario, the Brazilian authorities ask Interpol`s support to investigate the theme.

Regarding this serious context, the Special Rapporteurship on DESCA urges Brazil to the full compliance of its international obligations in the sense of prevention and attention to environmental disasters. Seen in these terms, the SRESCER highlights the parameters established by the Inter-American Court of Human Rights in the Advisory Opinion OC-23/17 concerning the States` guarantee to provide the right to a healthy environment, in either a substantial or a procedural emphasis.

In the substantial perspective, the State has the obligation to prevent, regulate and control an environmental contamination. This obligation derives from and is part of the right to live in a healthy environment, recognized by Article 11 of the Protocol of San Salvador, related to the Article 26 of the Pact of San José of Costa Rica, which Brazil is party. In the light of those provisions and according to the principle of prevention, the States shall adopt all the appropriate measures, on the basis of a precise and scientifically relevant information, to prevent environmental damages and reduce its impacts. Including when they do not hold that information, it is necessary to apply the principle of prevention so then the States can take the proper measures. Similarly, it should be recalled that, according to the last report issued by the United Nations Special Rapporteurship about the implications of the management and the ecologically acceptable method of disposal of noxious waste to the human rights, the States have the general obligation to prevent the exposition to noxious or toxic substances in accordance with the International Law of Human Rights.

Beyond that, the SRESCER reminds the States that they can be internationally liable, either by action or omission, when the necessary and sufficient measures are not adopted to prevent, investigate, sanction or repair events as the one approached in the present release, be they derived from state agents or private actors. This obligation is also related, in this case, to the commitments made in diverse International Rights treaties that Brazil is party, between them, the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation, with its provisions related to contingency plans in case of oil spill or accidents and in a framework of international cooperation that might have between countries that are susceptible of being affected by the spill.

At the same time, Brazil should carry out the pertinent inquiry to determine the precise cause of the oil spill, and apply the proper sanctions to the ones identified as responsible for the actions or omissions for the start and for the consequences brought by this environmental tragedy. In accordance to what was stated above, and according to the information provided, those responsible for the disaster were not identified yet and, by its turn, the Brazilian Navy, together with federal and states diverse bodies, are acting jointly to identify the spill origin. By contrast, it is necessary to remember that the chronic exposure to noxious substances can gravelly affect the right to health and a dignified life, between other human rights that are also susceptible of violation in an interdependent way. In this context, out of all the information received by the SRESCER, the spill registered in the northeast of Brazil affects the right to a healthy environment, as well as the right to water, food, a decent housing, and to cultural rights of ample sectors of the population. It should be given particular attention to the risks that the most vulnerable population of this scenario are exposed to, like the traditional fishing communities. In relation to these communities, and particularly, the ones that live in a situation of poverty or extreme poverty, the State should take urgent measures especially focused on preventing a chronic exposure to contaminated substances, beyond preventing affectations that they might be subjected through this contamination, focusing on their ways of life and labor rights.

According to the records of the Ministry of Agriculture, over 144.000 people present in the affected regions depend on the fishing activity for their subsistence. In this sense, it is important to notice that, on October 29th, the Brazilian government prohibited the shrimp and lobster fishing in the areas contaminated by the oil spill, measure that will be applied between November and December to avoid the consumption of products severely contaminated by biological, physical and chemical agents. However, there is an information that the damaged producers – about 60.000 fishermen – received new governmental subsidies to counterbalance their losses. The SRESCER stimulates the implementation of those kind of measures, and urges Brazil to prioritize the realization of a diagnosis about the economic and social impact of the oil spill, with a focus on human rights, to give an urgent and integral response to the affectations that the spill is causing on the damaged populations, especially in those inserted in a more vulnerable context and of imminent risk, like the fishing population.

In contrast, with regard to the procedural aspect, the SRESCER reminds Brazil that, to take appropriate decisions, it must be guaranteed the right to access to information, participation, and justice in environmental issues. That way, the SRESCER call to the State so it can provide the necessary instruments for the access and the utilization of the information available in this topic, putting it at the disposal of the civil society when required. Still, it is urgent that the State, considering the toxicity and the potential risks of the petroleum, take the responsibility of informing the citizens about the damages that the exposure to this substance might generate. All this fits within the framework that is contemplated by the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, better known as Acuerdo de Escazú, signed by Brazil and which immediate ratification is also stimulated by this SRESCER in this press release.

Furthermore, with a rights approach, it is required the adoption of inclusive and participative mechanisms in the decision-making process when implementing the PNC in the most damaged sectors, and that should go beyond the contemplation of reparatory measures for the people and groups inserted in a context of greater vulnerability, but also taking into consideration the ecologic sensibility of the affected ecosystems. Hence, the SRESCER reminds that in several parts of the Brazilian coast there are huge ecological diversity, composed by mangroves, coral reefs, and areas for the reproduction of marine species. Under another perspective, this Special Rapporteurship is worried that the petroleum could enter on the ground and reach the water tables, and through the rain the material could be transported to the river basins, what would contaminate the freshwater lakes. Regarding this, the most recent IBAMA’s report shows the death of 95 animals due to the oil spill, and the most impacted species are the sea turtles.

For all these reasons, the Special Rapporteur on DESCA, Soledad García Muñoz, expressed her solidarity with the population and the Brazilian authorities in the face of this social and environmental tragedy, and urged Brazil to “take the necessary measures to avoid a bigger deterioration of the affected ecosystems, considering that the time, the resources and the way of acting focused on human rights are the key factors for the effectiveness of a contingency plan that the present situation deserves”. She also added that “the slower and partial are the measures adopted, more irreparable will be the damages for the Brazilian coast and its biodiversity, as well as for the quality of life of the people that live in these affected regions. It is necessary an urgent and sensible response in face of these serious events generated by the contamination, because that could also accelerate the effects of the climate change in the coast, mangroves, swamps and other ecologically vulnerable habitats.”

In addition, the Special Rapporteurship on DESCA greets with a lot of admiration the efforts of the volunteers and the local populations that are working incessantly in the cleaning of the beaches, and expresses its concern on the lack of information and the lack of proper equipment for the protection during the contact with the oil, according to the information received by the mandate. Then, it urges Brazil to provide the necessary measures for the security of the work carried out mainly by the volunteers, and the adequate medical and hospital treatment for the people that might have been affected by the exposure to this material.

In this context, the Special Rapporteur on DESCA reiterates her intention to carry out an immediate working visit to Brazil, and expresses her intention of visiting the main regions reached by this environmental disaster, to observe in loco the situation and receive information about the implemented actions, aiming to contribute through her mandate for the effectiveness and conformity of these actions with the international human rights standards.

By these means, the mandate reiterates the call to Brazil to adopt all the pertinent measures in accordance to its national and international commitments in the matter of human rights and environment, with the objective to prevent bigger damages and risks that might come from this environmental disaster, and it offers the mandates’ technical support in the search for solutions that bring remediation and recovery for the affected ecosystems, as well as for the protection of the communities that were affected by the spill. In the same way, on the basis of the principle of cooperation – and considering the high possibilities of a border damage that facts like this implicate, it reminds the State and also the State Members of OAS about the validity of the obligation to cooperate aiming to prevent, mitigate, and remedy the environmental damages in the context of natural tragedies or border contamination.

The Special Rapporteurship on Economic, Social, Cultural and Environmental Rights is an Office specially created to support the IACHR in its work on the promotion and protection of economic, social, cultural and environmental rights throughout the Americas.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 291/19