The Amazon region covers an area of approximately 7.5 million square kilometres and comprises approximately 44 per cent of the territory of South America. It is primarily located in Brazil but extends into Bolivia, Colombia, Ecuador, Guyana, Peru, Venezuela and Suriname. The river basin is critically important for biodiversity, freshwater, climate and indigenous culture but protection is limited: it appears that the Brazilian Amazon currently has the world's highest absolute rate of deforestation. In real terms, this equates to the destruction of millions of hectares of forest per year.
Against this background, this book aims to examine the forms of cooperation that exist among the Amazon states, and between them and the international community, and to consider the extent to which international cooperation may help to reverse environmental degradation in the region. Taking as its starting point the somewhat trite assertion “… cooperation is required at different levels in order to effectively handle some environmental problems” (p. 2), the book is premised on the assumption that Amazon states and the international community share “a common interest” in the protection of the Amazon and that this interest will best be served by “bringing the Amazon States closer together” (p. 5).
The book is divided into ten chapters, the first eight of which are largely descriptive. Underpinned by extensive research, these chapters cover the characteristics of the region, the origins of regional cooperation, the 1978 Amazon Cooperation Treaty, other regional legal instruments, regional organizations, multilateral treaties and global actors, and positive incentives for protection (i.e. carbon trading, Reducing Emissions from Deforestation and Forest Degradation and Payment for Environmental Services). It is in the last two chapters that much of the legal analysis is located.
In fact, Garcia's analysis relies on three streams of literature. First, the literature of public international law is used to frame the discussion of multilateral treaties. Some reference is also made to aspects of international environmental law. Second, the literature of international relations (as applied to the Amazon states) and the corresponding practice of diplomacy provides the context in which this analysis is located, underpins its methodology and informs its conclusions. Third, Chapter Two, The Characteristics of the Amazon region, owes much to economic geography.
As Garcia explains, environment protection per se did not reach the Amazon region (nor indeed the rest of the world) until the late twentieth century. Early treaties defined common boundaries and established rules for trade and navigation but were not generally concerned with concepts of conservation or protection, or at least, not as we understand those concepts today. In 1493, the papal bull Inter Caetera, issued by Alexander VI, delineated for the first time the possessions of Spain and Portugal in the New World. Following negotiations between Portugal and Spain, the 1494 Treaty of Tordesillas gave everything west of a line 370 leagues west of the Cape Verde Islands to Spain. Later, under the terms of the 1750 Treaty of Madrid and the 1777 Treaty of San Ildefonso, much of the Amazon basin was transferred to Portugal. Following independence from the European colonial powers in the early nineteenth century, the Amazon states negotiated various treaties between themselves. Underpinned by the principle of uti possidentis (“as you possess”), those treaties generally ensured that the boundaries of the newly independent states followed the boundaries of the old colonial territories from which new states emerged. In fact, many of those boundaries were defined in the context of the Amazon rubber boom. Negotiation of the navigational rights necessary to access that rubber and transport it, at minimal cost and maximum speed, to European markets was the overarching imperative of the pre-WWI period. And successful that negotiation was: legend has it that the Brazilian rubber barons of the late nineteenth century lit their cigars with hundred-dollar bills, watered their horses on champagne and sent their laundry to Paris. From about 1901 onwards, conferences of inter-American states adopted resolutions on matters such as international sanitary policies, technical and cultural cooperation and indigenous populations, all of which can, with some imagination, be interpreted as early forms of environmental protection. But it was not until the emergence of the modern environmental movement in the late 1960s that international attention turned to the protection of the Amazon.
The 1978 Amazon Cooperation Treaty (ACT) is a framework agreement between the eight Amazon states, designed to facilitate cooperation on a wide range of issues including navigation, water resources, the protection and utilization of species, health and sanitation, tourism, and protection of archaeological and ethnological wealth. Tension between environment and development, common to many other international environments agreements, is evident from the outset. Article 1 states, “… parties agree … to promote the harmonious development of their respective Amazonian territories … and achieve also the preservation of the environment and the conservation and rational utilization of the natural resources of those territories”. Garcia observes that the ACT has not been particularly successful in achieving its objectives. It has had little practical impact in addressing problems such as deforestation and some of its subsidiary bodies have not met regularly, or at all. That the ACT's major achievement in recent years has been the creation of a permanent Secretariat and not, for example, the protection of the river basin, the forest or its peoples, does not auger well for the future.
Chapter Nine discusses the feasibility, and desirability, of endowing the Amazon region with some sort of special status in international law. Parallels are drawn with outer space, the high seas and Antarctica and there is a somewhat lengthy discussion of the definitions and implications of “common heritage” and “common concern”. The chapter appears to suggest that were the protection of the Amazon to be considered a common concern of mankind, Amazon states would have an obligation to the international community to preserve the Amazon, and the international community would have a corresponding duty to provide financial and technical assistance, together with a right of surveillance. It is difficult to find support for this proposition in international law (and Garcia's unusual use of conditional verbs does not assist the reader's understanding). The Conclusion, which acknowledges that the legal system of the Amazon might be strengthened were treaties between Amazon states to be more effective, includes some useful discussion of the relationship between compliance and effectiveness in international law.
In fact, much research has already been undertaken on international law on water, biodiversity and forests and leading scholars agree that strengthening the rule of law and defining and enforcing property rights (at national level) is more likely to strengthen environmental protection than, for example, further discussion of nebulous environmental concepts. The principle cause of deforestation in Brazil (as in much of South America) is a volatile combination of poverty, greed and weak or ineffective property rights. The Amazon is neither a nature reserve nor a museum of indigenous culture: it is a region inhabited by millions of people who need food, water, shelter and employment. While neighbouring states and international agencies may, in certain very limited circumstances, intervene, the regulation of the necessities of life, and establishment and implementation of the property rights on which those necessities depend, is fundamentally a matter for national (or regional or local, depending on the allocation of responsibility) government. International cooperation has a role to play, particularly in the protection of shared rivers and migratory species, but consistent with the classical understanding of public international law, that role is limited. A standing tree, located in the sovereign territory of a state, is subject to the jurisdiction of that state – and that state alone.
Garcia has produced a particularly detailed legal analysis but her analysis misses the point. The question which should have been asked is not whether attributing to the Amazon region the terms “common heritage” or “common concern” will increase protection, but what action, if any, may be taken when existing obligations (both domestic and international) are breached. This is a critical question in international law, both in the Amazon and elsewhere, and international environmental law in this area is developing rapidly. Environmental protection is now an established element of public international law: more than 20 cases have reached international courts since 2000, courts no longer shy away from arguments based on environmental protection and there is no doubt that extensive protection for the environment exists in international law, albeit in an uncoordinated collection of legal instruments. While legal scholars may argue about the intricacies of “common concern”, it is unlikely that loggers in the Amazon are well versed in such concepts and it is difficult to argue that causing them to become so should be the priority of the international community.
The Amazon is, as Garcia explains, one of the richest habitats on earth and there is no doubt that destruction of the forest causes widespread, long-term and severe damage that extends beyond national boundaries, so it is right that protection is a matter of international concern. It is no longer far-fetched to suggest that within the next few years, the Chapter VII powers of the Security Council, designed to deal with threats to, and breaches of, international peace and security, may be used to intervene in an environmental crisis. But to suggest that attribution to the region of the term “common concern of humankind” will create an obligation to provide financial and technical assistance together with a right of surveillance stretches credibility.
Central to protection of the Amazon region is respect for the rule of law – in this context, the entire body of international law, of which international environmental law is one aspect. And since destruction of the region's fragile ecosystem may, in the long term, threaten international peace and security, management of that ecosystem requires the application of the entire body of international law, not simply the environmental sub-section thereof. Garcia has made a reasonable stab at analysing the environmental piece; had her book located its central question, the relationship between environmental protection and international regimes, more firmly within the broader framework of public international law, it would have been stronger.
