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Note: This piece originally appeared in Portuguese in Revista Relações Exteriores, a Brazilian publication which provides analysis of major international events. Bárbara Beatriz Lobato Cruz researches international cooperation for the environment, MERCOSUR, international rights, protection of refugee women, Brazilian domestic politics, and contemporary history of Latin American politics. She holds a Bachelor of Law and is currently completing a Master’s in Political Science at the School of Economics and Management, University of Minho.
To read the original piece, click here.
The Southern Common Market (MERCOSUR) started its activities as an intergovernmental organization on March 26, 1991, through the Treaty of Asunción, with the objective of becoming the Southern Common Market by December 31, 1994, after a transition period involving two phases of integration: free trade zone and customs union.
Shortly after the emergence of MERCOSUR, the United Nations Conference on the Environment—better known as Rio-92 or ECO-92—took place in Rio de Janeiro. At this conference, participating states recognized the need to adopt global measures for environmental protection. To achieve these sustainable development goals within a regional integration bloc there must be an effort to harmonize the environmental legislation of member states.
The countries that make up MERCOSUR have an undeniable wealth of natural resources, not least of which is the presence of the Amazon Rainforest. In addition, Argentina, Brazil, Paraguay and Uruguay all have strong agricultural and horticultural export economies.
The protection of the environment and the search for sustainable development are currently central themes in international debates due to the misuse of natural resources, which often span borders between countries, and the extraction and use of which may affect other nations. In MERCOSUR, the environmental issue is restricted to subgroup discussions by the member states that are not integrated into the wider discussion, demonstrating the bloc’s inattention to the issue.
Therefore, mechanisms should be sought that contribute to a more specific and unified environmental legislation within MERCOSUR, not only as a way of protecting the regional environment, but also to show the international framework the bloc’s commitment to the protection and defense of its natural resources.
The main objective of this work is to highlight the importance of a unified and concise environmental legislation within MERCOSUR, since its member countries are holders of natural resources and ecosystems of paramount importance such as the Amazon, Patagonia, and the Andean Range.
In addition, the search for a harmonized green agenda among the bloc’s countries is imperative. For this, it is necessary to delve into a brief analysis of the member states’ environmental and development frameworks including the Framework Agreement on the Environment in MERCOSUR, and how this agreement influenced the emergence of a regional environmental policy within the economic bloc.
Results and discussion
Among the member states, Brazil is the country with the most advanced environmental legislation, guided by Art. 225 of the 1988 Federal Constitution in Title VIII, Chapter VI:
Art. 225. Everyone has the right to an ecologically balanced environment, which is of common use by the people and essential to a healthy quality of life. It is the duty of the public and the community to defend and preserve [the environment] for present and future generations.
In order to ensure the effectiveness of this right, it is incumbent upon the public authorities:
I – to preserve and restore essential ecological processes and to provide ecological management of species and ecosystems;
II – preserve the diversity and integrity of the country’s genetic heritage and supervise entities dedicated to the research and manipulation of genetic material;
III – define all federation units, territorial spaces and their components, to be specially protected; alteration and suppression being permitted only through law, any use that compromises the integrity of the attributes that justify their protection is prohibited;
IV – require, in accordance with the law, for the installation of a work or activity potentially causing significant degradation of the environment, a previous study of environmental impact, which will be publicized;
V – control the production, commercialization and use of techniques, methods and substances that pose a risk to life, quality of life and the environment;
VI – promote environmental education at all levels of education and public awareness for the preservation of the environment;
VII – protect fauna and flora, in accordance with the law, practices that put their ecological function at risk, cause the extinction of species or subject animals to cruelty are prohibited.
Along with the constitutional precepts, Brazil also has extensive complementary legislation on the subject, with an emphasis on Law No. 4771/65, which established that forests in the national territory are goods of common interest to all inhabitants of the country. In addition, Law No. 6938/81 makes environmental licensing mandatory for activities or undertakings with a potential to harm the environment.
Argentina’s constitutional text also references the protection of the environment in Article 41. However, there are planning conflicts since Argentinian states have sovereignty to legislate on the subject. Because of this, in 1993, the Federal Environmental Pact took place with the Argentine provinces, however, this document does not list uniform rules in force throughout the national territory, and serves only as a guiding document for public policies on environmental development.
Paraguay and Uruguay also have constitutional texts that include environmental protection, however, they do not have more detailed and secure complementary legislation like that of Brazil. Each member state has brought the issues of environmental protection present in its own legal systems to MERCOSUR.
The texts referring to environmental protection within MERCOSUR began to take their first steps shortly after Rio-92. However, the initial result was only treaties and meetings aimed at specific themes involving the environment and did not establish unified environmental legislation within the bloc. The most relevant document in this regard is the Framework Agreement on the Environment (AQMAM), approved in 2001 and added in 2004 by the Common Market Council (CMC), which inaugurated regional environmental protection.
The agreement prioritizes the standardization of sustainable development and the protection of the environment, and therefore, the quality of that development. This established the principle of sustainable regional development within MERCOSUR, which should condition the bloc’s negotiations through the regulation and promotion of environmental protection as well as incentivizing the coordination of sectoral policies. The present agreement prioritizes two types of protection: autonomous, by directing cooperation towards a common environmental policy, and integration, which is reaffirmed in Art. 3b, appearing as a principle and an objective (Art. 4), when imposing sustainable development, which permeates the entire Environmental Agreement.
The Framework Agreement on the Environment has become an instrument of paramount importance to establish the commitment of environmental policy within the Southern Common Market, a community in which the member states share the responsibility to instrumentalize and enable the protection of the environment. In addition, the agreement provides guidelines for cooperation between countries for the common good.
It is undeniable that the MERCOSUR member countries show a certain level of concern about environmental impacts, recognizing the need for harmonization between the disparate laws that govern the issue. However, even with the existence of AQMAM, it is not possible to find a true MERCOSUR environmental policy with a general environmental legal framework.
Therefore, efforts by the member states to achieve full legislative harmonization must continue in order to further the regional integration process. They can begin by analyzing the domestic environmental laws of member countries to identify similarities between them, such as the strong influence of international conferences and treaties and the constitutional texts that start from a common origin.
It is also worth noting that the desired environmental harmonization of MERCOSUR does not refer only to a single legislation, but also to the cooperation of the member states in reaching coherent standards on this subject.
In addition, given the current international situation, the need to combine sustainable development and economic growth is extremely necessary. The consumer market has raised concerns with the degradation of environmental resources, making it necessary to abandon the old means of consumption and adapt to new global demands. For this reason, if MERCOSUR wants to continue to negotiate effectively with other economic blocs, it needs to look for ways to adapt to what the present requires, that is, it cannot escape from a discussion on environmental protection and sustainable development.