Mariana Silveira - INTERNATIONAL ENVIRONMENTAL
LAW
Environment vs. Trade?
I) SCOPE OF THIS WORK
II) INTRODUCTION: WHAT IS THE HIDROVIA?
III) WHAT IS THE PANTANAL?
IV) ENVIRONMENTAL CONCERNS
IV.i) Participation of the public and NGOs
V) THE ECONOMIC PERSPECTIVE
VI) LEGAL REALITY
VI.i) Environmental legal awareness in Brazil
VI.ii) MERCOSUR as a Framework
VI.iii) International Environmental Principles
VII) CONCLUSIONS
This work is an introduction to the Hidrovía Paraná-Paraguay project currently under the consideration of South American governments, international financial institutions, and environmentalists from around the world. The battle between trade and the environment arises one more time, as opposing forces struggle between economic boom or safeguarding one of the richest ecosystems in the world.
The Hidrovía project calls for the transformation of the
Paraguay-Paraná-Uruguay-La Plata river system into a 3,400-kilometer long (2) shipping canal. We refer to a river system due to the inherent
union between said rivers. This notion was pointed out by Herbert A. Smith(3), who declared that each river system is naturally a physically
indivisible unit, that must be developed as such in order to render a better service to
the communities it envelops.
The main components of the system are the Paraguay and Paraná rivers. The Paraguay -"big mirror of waters" in native guaraní language- has its origin in Sierra de los Aparecidos, Brazil. Its higher section is located entirely in Brazil, near Cáceres, in the Mato Grosso, and is the starting point for the Hidrovía -a well as the source of the conflicts we shall deal with hereunder. The river later becomes the boundary between Bolivia and Brazil; from there, the Tamengo Channel, a navigable fork of the river, links the port of Quijarro to laguna Cáceres, in Bolivia. (4)
The Paraná -"Mother of the Sea" in the guaraní language- has a flow which is one and a half times that of the Mississippi, twice that of the Ganges and four times that of the Danube. The Hidrovía project's goal is to bring about an improved navigation in this system, between the ports of Cáceres, in Mato Grosso, and Nueva Palmira in Uruguay, at the beginning of the Río de la Plata, the largest estuary in the world. The project has now been debated for a long time by the five countries that would directly benefit from its implementation;(5) however, the details are still unknown due to the fact that the final project is not ready, primarily because its environmental impact has yet to be evaluated.
In order to complete the project, the river will have to be dredged and large extensions marked with buoys. Preliminary surveys will be completed this year, and construction is expected to take a further nine years after that. (6)
But what is it exactly that is involved in this "construction"? Major changes would be necessary, particularly in the northern section. During much of the dry season from March to September, the upper Paraguay -the stretch that cuts through the Pantanal(7) - is too shallow for big ships(8) , and big rock formations rib the channel in stretches of its lower course. Internave, a Brazilian engineering firm, prepared a report on the Hidrovía in 1989, that called for dynamiting rocks and carving a 400-foot-wide channel. It also recommended "rectification", technospeak for bulldozing away those "S" curves on the upper Paraguay that hold back the current. Though members of the five-nation executive committee planning the Hidrovía now say they consider the Internave report to be a mere discussion paper, it certainly sharpened government appetites for the project; and it sparked environmentalists to action.(9)
The project's economics are not an easy issue, either. The Internave report estimates that re-engineering the canal would cost more than $1 billion, and maintaining it for approximately 25 years would cost as much as another $3 billion(10) . According to Mauricio Galinkin, an economist with the Brazilian Group CEBRAC(11) , only if all the cards fell just right -and 100 percent of the estimated optimum cargo were actually ferried along the Hidrovía- would the project bring in enough revenue to keep it afloat.
Also, there are serious questions as to whether the economic miracles promised by Hidrovía will materialize, especially if environmental costs of the project, such as loss of commercial fish catches and future eco-tourism revenues, are factored in.(12)
The International Wildlife Magazine defines it as nothing less than
South America's greatest wetland, one of the continent's best kept secrets, and now
-thanks to Hidrovía- a jewel at risk.
Let us beware. The Pantanal is no doubt a majestic symbol of the richness of nature, but it's not immune to the intrusions of the modern world.(13)
Although the name "Pantanal" comes from the Portuguese for swampland, the Pantanal, located in Brazil's southwestern flank, is more akin to Africa's Seringeti than to Florida's Everglades. During the wet season from November to January, the rainwaters of the Eastern Andes and the Brazilian High Plains flood this very gently sloping basin. Once the rains subside, the heat of the dry season begins to shrink the sea into a series of scattered pools teeming with fish imprisoned by the advancing banks. These provide a bonanza for birds and mammals who arrive in droves to join the feast. At the same time, the average daily temperature soars to a scorching 110ºF, eventually converting the inland sea into a dry savanna.
Like an African savanna, the Pantanal boasts a wide range of flora and fauna. Four different South American vegetation zones converge at its borders: the central Brazilian high plains, the foothills of the Andes, the Atlantic forest, and the Argentinean Pampas, all lend their typical species to the Pantanal's rich pulse of life. The South American alligator (yacaré), and the world's largest rodent, the capybara, compete for the streams and ponds with schools of piranha, while jaguars and giant anacondas prowl the gallery forests. Endangered hyacinth macaws and marsh deer, as well as more than 90,000 varieties of plants, may also be found here. Most striking, however, is the high concentration of bird species found in the Pantanal: over 600 known species, and in such numbers as to dazzle even the most seasoned birders. No wonder it was designated as a "National Treasure" by the constitution currently in force in Brazil.(14)
As stated by The International Wildlife Magazine(15) , the marshes, lakes and rivers of the Pantanal comprise a natural steam bath that is easily the most spectacular wetlands in the Americas, arguably in the world. The Paraguay river, which drains the wetland, retains a mind-boggling 45 billion cubic meters of fresh water, enough to supply drinking water for three Brazils. During the rainy season, this landlocked sea covers 210,000 square kilometers, an area larger than England.
The huge Pantanal sanctuary merits distinction not only as an ecological treasure, but also as an example of the ability of communities to live in balance with their environment. The local inhabitants known as "pantaneiros" have developed compatible land uses based on conservation practices and adaptation to the natural cycles of the region. A U.S. wetland researcher recently commented to the press that while Americans think of preserving wetlands as putting a fence around them, the pantaneiros have found a way to maintain wetlands while using them.(16)
But despite appearances, the Pantanal is not a Garden of Eden. Prospectors have pillaged the region for gold, roads have disrupted habitat and hunters have done a bloody business in jaguar furs and caiman skins. At least a dozen species of wildlife are endangered due to overharvesting and illegal killing. And now, the final challenge: the Hidrovía, if it proceeds, will bring more change, on a whole new scale.
While the Amazon to the north has long enjoyed the national and international spotlight, the Pantanal has remained a well-kept secret. Although ecotourists have begun to trickle into the region, the Pantanal has hardly become a household word. The Hidrovía may spell disaster for the Pantanal. In 1993 flooding caused dozens of deaths, the evacuation of 200,000 people, and substantial destruction. Experts predict that the Hidrovía will raise the water level of the Paraguay River by 35%, leading to even more serious flooding downstream(17) .
For the Pantanal, outside attention could be more important now than ever as new developments in this corner of Brazil's interior threaten the relative lack of intrusion that the area has always enjoyed.
Ecologists from the five nations involved are opposing the project, arguing that the increased flow of the Paraguay river could reduce the water level of the Mato Grosso Pantanal, draining the life out of the wildlife-rich region and changing the lives of its residents for the worse.
"The indigenous peoples of Mato Grosso, Santa Cruz and Paraguay would be drowned once again by destructive "progress", the outlying areas of the riverside cities will be flooded and people will lose their homes, livings and even their lives", wrote Danilo Anton in the Uruguayan magazine "Tierra Amiga".(18) This includes the Ofaie-Xavantes and Xeta groups, who are already close to extinction.(19)
Discussion of the Hidrovía proposal has heated up in the region affected by the project. Biologist Carolina Joana da Silva, who is from the Brazilian Pantanal wetlands, attacked the terms of reference for the EIS that is being carried out, saying that it should consider alternative transport options, and should assess norms for determining responsibility for repair of environmental damages.
Da Silva echoed the conclusions of a group of 20 scientists who met in Brasilia in November to discuss concerns relating to the Hidrovía. Among the problems discussed were the drying out of the Pantanal, loss of fish, decreased cattle ranching productivity, destruction of thousands of archaeological sites, and the proliferation of land conflicts in the region resulting in the expulsion and marginalization of riverine and indigenous populations.
Many groups have conducted counter studies. The most serious, "Who pays the bill", a joint effort published in 1994 by CEBRAC, the Brazilian World Wildlife Fund and others, tore into the Internave report. The authors stated that the Hidrovía would be too expensive, economically "fragile", and potentially an environmental debacle. According to hydrologist Vitor M. Ponce, of the University of California, San Diego, to bore a navigation channel and straighten the curves of the Paraguay-Paraná would so speed up the flow that fully a third of the Pantanal's water -15 billion cubic meters- would be sucked out and flushed downriver every year . The Pantanal is unique hydrologically, acting as a sponge which absorbs rainy season floods and releases water slowly throughout the year. Fundamental to this process is a rock formation at the base of the Pantanal which acts as a valve, regulating the water flows out of this vast wetlands. In order to complete the Hidrovía, this rock formation would be dynamited, something that could result in the Pantanal running dry at certain times of the year.(20) Scientists fear the Pantanal's water cycle could be permanently skewed, desiccating the weeds and pasture grasses that sustain animal life, including livestock. The result could be a kind of wet semi-desert.
That consequence would be no small matter for the ranchers of the Pantanal, who own most of the region. Over the last century and a half, they and their livestock have adapted to the wetland's cycles, for the most part living in harmony with the ecosystem. Indigenous peoples could also be affected, including the Guaraní Indians, by changes in water levels, and by changes in the value of property and greater interest in development along the waterway.
The environmental groups want to know how much engineering would be necessary in order to create an efficient waterway, and at what price. These questions are not new to Brazil, which is still dealing with the Amazon rain forest issues. Juan Manuel Fariña, chief of the Technical Cooperation Division for the Inter American Development Bank (IDB) said "We are not going to finance anything without a serious environmental assessment. We learned our lesson".
Marc Dourojeanni, the Development's Bank's regional environment advisor for Bolivia and Brazil, says the bank has serious doubts about the economics of the project and the information in the Internave study. The IDB warned that no funds would be forthcoming unless the environmental impact study found the effects of the plan would be, at the most, "moderate". In February 1995, the IDB and the United Nations Development Program (UNDP) launched new engineering and environmental impact studies on the project. Depending in part on results of those studies which will cost between $7.5 and $10 million over 18 months, the IDB could decide to finance a major part of the vast undertaking.
But the record shows that environmentalists are right to be suspicious. And some, as the Pantanal based Ecology and Action (ECOA) want to stop the Hidrovía cold. Other groups want moderation, not an embargo. "We support the Hidrovía project but only at the lower end of its course, well below the Pantanal", says the World Wildlife Fund.
Another feasibility study by U.S., Canadian and Argentine experts is expected to be ready by November, 1996.
International Wildlife Magazine points out that anyone studying the potential environmental impact of the Hidrovía might find cautionary tales in existing large projects such as these:
"The five-country region can little afford the destruction seen in the Mississippi and Everglades", the Environmental Defense Fund, a Washington-based group, warned recently about the Hidrovia.(22)
Critics of the Hidrovía project also point to the example of Paraguay's Itaipú dam, a white elephant of a hydroelectric project that enriched prominent figures in the private sector but a multibillion-dollar loser overall.
"There are ranking people in the government who just want this so they can get their machines running again", said Angélica Delgado, coordinator of ecological activity at Alter Vida, a Paraguayan conservation group(23) . The remark is an allusion to President Juan Carlos Wasmosy, a construction magnate who became one of Paraguay's richest men while coordinating work on Itaipú during the 1970's.
Wasmosy is a top Hidrovía booster. And although he has not denied that his firm would help build the myriad network of channels, bridges and canals required, he and his top aides justify the project on strictly integrationist lines: Paraguay has recently joined the Mercosur, and the Hidrovía is the best chance to implement the integration.
But even at some official levels, doubt about the project is growing. Once an advocate of building the Hidrovía at any cost, the Mato Grosso state government could be softening its position. In an address to the Brazilian Society for the Advancement of Science meeting, acting governor of Mato Grosso, Marcio Lacerda, downplayed the government's support for the Hidrovía, referring to the plan originally put forth by Internave as "madness". Lacerda insisted that the plan he has seen involves only the posting of navigation signals and minor dredging.
The government of Mato Grosso do Sul aims at promoting the sustainable development of the Pantanal, improving the protection of the environment and supporting a better utilization of natural resources, particularly through the phenomenon of ecological tourism, the rationalization of fisheries, and an enhancement of farming activities. (24)
The State of Mato Grosso covers approximately 10.5% of the territory of Brazil, and has elaborated, in cooperation with the IDB, a "Plan of Goals of Mato Grosso 1995-2005", which includes promoting the integrated development of the south-central region, where part of the Pantanal is located, and which comprises the greatest percentage of the country's population. The project aims at the sustainable development of the Pantanal and peripheral areas, in order to ensure the conservation of natural ecosystems, and to improve the quality of life of the population. This calls for a detailed study of some of the future investments to be carried out, including land transportation and navigation. The development of the tourism industry in the area is also one of the goals of the project.
It's easy to see at this point that the participation of nongovernment environmental organizations and of private parties affected by the project is crucial to the outcome of this problem.
In December 1994, more than 70 NGO representatives from Brazil, Argentina, Bolivia, Paraguay, Uruguay, Canada, Holland and the United States agreed to work together to ensure ongoing monitoring of the project plans and participation in the EIS process. Among the groups involved are Ecologia e Acao (ECOA) and the Institute Centro de Vida of Brazil, Fundación Kattan of Argentina, Redes-Amigos de la Tierra of Uruguay, Sobrevivencia from Paraguay, the Asociación Ecológica del Oriente (ASEO) and the Central de Pueblos Indígenas del Oriente (CIDOB) of Bolivia and the International Rivers Network. However, despite a formal proposal for public participation in the environmental assessment process that could determine the future of the Paraguay River system, the governments proposing the project under consideration, the UNDP, and the IDB have to date barred the door to input from citizens who will be impacted by the massive channelization project of Hidrovía.(25)
The Living Rivers Coalition, an alliance of 200 organizations, stated on October 5, 1995, that environmentalists are still being denied access to reports, raising fears that economic pressures are outweighing promises to protect the wetlands, even though in prior months the project's intergovernmental panel had agreed to release engineering and environmental studies on the project to a coalition of enviro groups and said it would confine plans to modify the waterway to the region downstream from the Pantanal. (26)
UNDP officials had also said that they would allow non-governmental and indigenous groups to participate in the planning stages for the Hidrovía.(27)
So what do environmentalists propose as an alternative? The official position of the World Wildlife Fund is that:
Consequently, the enviromental studies should analyze two forms Hidrovía may finally take. The first involves modifications to the lower portion of the river, rehabilitating and improving the existing shipping channel. The second alternative, far more ambitious and potentially dangerous from an ecological point of view, would extend the hidrovía through the Pantanal, irreversibly modifying the river system to enable ocean-going ships to navigate the entire waterway.(30)
Gonzalo Castro, executive director of Wetlands for the Americas, said his group recognizes "the need for economic integration and development in the region", but he believes there are alternatives, such as a railroad terminal at the point where the wetlands begin.(31)
The Hidrovía project has been given the green light by the national governments of the countries concerned insofar as it represents an economic upgrade, and against the opposition from environmentalist groups. The Hidrovía is to be nothing less than the backbone of the Mercosur(32) . Expanding navigation on the Paraná and Paraguay rivers -the second-largest river system in South America after the Amazon- would foster economic development in a considerable manner.
It is not hard then to understand why the environmental and ecological consequences have been frequently absent from the discussions about the Hidrovía(33) . This project is one of the largest engineering works planned for the physical integration of Mercosur, along with a bridge over the River Plate (Río de la Plata) to link Buenos Aires in Argentina with Colonia in Uruguay. The river route will link the ports of Cáceres with Nueva Palmira in Uruguay, following massive engineering works.(34) Vessels of up to 100 meters in length can currently sail as far up river as Rosario (Argentina), 453 kilometers into the hidrovía, and smaller vessels can reach as far as Asunción in Paraguay. Further upriver, passage becomes far more difficult and cargoes have to be loaded and unloaded repeatedly from shallow barges to get past the rapids and narrow straits. Shipowners and operators claim that the project will benefit the 17 million people living along the river banks.
All the nations involved have reasons to promote improved river navigation. Bolivia and Paraguay presently have no direct access to the sea, a factor which greatly increases the transportation cost of their products, and the same is true of western Brazil. Asunción (Paraguay's capital city) could reap the benefits of becoming a major inland port. And private sector exporters -especially cattle, cotton and soybean producers- would see profitability shoot skyward because of lower transportation costs. Argentina desires to reduce transportation costs from its rich cereal producing area around Rosario, a large port on the Paraná river. Meanwhile, Uruguay aims for the development of a great center in Nueva Palmira, at the southern end of the Hidrovía, establishing its position as the main port of the Southern Cone.(35) In Brazil, the Hidrovía could trigger an economic boom for mining companies and farmers in the central plains, which are rich in soybeans, wheat, coffee, rice, hardwoods, iron, manganese and precious stones.(36)
Paraguayan officials and business interests, together with their counterparts in the other four countries through which the river traffic would flow, are eloquent about the economic as well as the environmental benefits; they point out that "the pollution caused by a barge convoy is nothing compared with building a highway through the forest and sending 300 trucks over it" (Juan Wenninger, Paraguay's Deputy Minister of Transportation). The Paraguayan environmentalist, Raul Gauto, points out that "Trying to stop the Hidrovía is not morally right, because so many people are going to benefit.(37) Also, President Juan Carlos Wasmosy of Paraguay said the waterway would help the country overcome its sense of being landlocked. "Instead of barges carrying 500 tons, we would be able to have barges carrying 2,000 tons".(38)
Thus, on the Hidrovía soy beans and oil, corn, cotton, manganese and iron ore would travel downstream, and back upstream would come diesel fuel, canned food and manufactured goods. Today, 90% of the region's cargo travels by truck to the Atlantic Ocean. Hauling grain from farmside to port can cost an outrageous $60 to $90 a ton, depending on the condition of the road. And repairing and maintaining dirt roads like the Transpantaneira highway in the Pantanal area is a never-ending, expensive chore. Transcontinental railroads and the much vaunted highways to the Pacific -at least three are under consideration to connect Brazil and Bolivia to Peru or Chile- could revolutionize South America's transportation web, but so far these projects are little more than bold blueprints. Besides, river transport, by contrast, is far cheaper: $30 to $50 a ton, and an estimated $3 million a year for total upkeep. One 2,000 ton barge, small by waterway standards, carries the load of 70 trucks. The drawbacks? A boat takes at least 30 days to wend its way down the Paraguay and the Paraná, and finally down to Nueva Palmira; a truck to the port of Santos or Paranagua takes two and a half days. Then there are customs rituals, inspection procedures, tolls and taxes. Most overland routes cross fewer borders and meet less daunting red tape along the way. The Hidrovía project plans to ease those drawbacks with "improvements" - dredging, clearance of debris, a navigational buoy system and standardization of customs practices.(39)
Some say the Hidrovía is not the only means to transport products to markets and to import goods. Nor is the Hidrovía the only alternative to stimulate national and regional economic growth. To determine the most economically efficient alternative, a balanced analysis is required that explicitly includes environmental benefits and costs of each one.(40)
Currently, only 2 percent of all freight moves on waterways in Brazil, compared with 25 percent in the United States and 28 percent in Germany. But Sao Paulo recently opened a 1,500 mile, $1.6 billion waterway that links Sao Paulo with Paraguay's second largest city, Ciudad del Este on the Paraná-Tiete River system.
Indeed, businesses are turning the Paraguay and Paraná Rivers into a major economic artery. The world's largest sugar refinery opened this year in Tangara, Brazil, and barges loaded with sugar are already floating down river to Argentina. In return, barges have been carrying Argentine wheat to markets up river.
Last year, Glencore, a Brazilian trading company, shipped 5,000 tons of soy from Cáceres to the Atlantic. The company plans to ship 27,000 tons this year.(41)
"The benefits far outweigh the ecological costs", said José Martínez, a senior official at Paraguay's embassy in Brasilia. "There is no evidence of an ecological catastrophe. That's all a little exaggerated".(42) And the Paraguayan Minister of Agriculture, Arsenio Vasconcellos, suggests that while the environmental problems are real, commercial benefits may not be ignored. The Hidrovía is irreversible.(43)
Also, we must not forget that the Hidrovía is only one part of a much more ambitious project for remaking the transport and production systems of South America. The regional infrastructure scheme envisions placing South America in the center of a new global commercial route between Europe and the Orient. This project involves the forging of a multi-modal system of connections. The larger strategy goes beyond the river systems, to integrate global shipping channels into a motor and rail transport system. The infrastructure projects, of which the Hidrovía is an important part, will reshape the economies and societies of every country in the region. The transformations in transportation, with dramatic changes in the relative cost of each system, will generate unimagined investment opportunities along the new routes and in a broad hinterland. As the quote about the morality of the issue (above) illustrates, the problem once again appears to be one of the environment versus economic opportunity. Thus the debate comes down to a recurrent theme across the developing world: How can poor countries pursue economic development while ensuring environmental protection?
How can the law offer a way out of this dilemma? There is not a final or clear answer to this question. First of all, we should determine what legal provisions should apply in this particular case, ranging from national legislation enacted by the Government of Brazil to international environmental principles.
Brazil has become more and more concerned with the notion of sustainable development, as a development that satisfies the need of present generations, without jeopardizing the ability of future generations to meet their own needs. Progress is doubtlessly a need, it's even inscribed in the Brazilian national flag; but Brazilians have not failed to realize that progress has also radically altered the relationship between man and the environment. It is true that Brazil has frequently been singled out as one of the most "ecologically incorrect countries of the world. However, Brazilians contend that they have one of the new environmentally conscious countries(44) , with a clear commitment to pursue a vigorous domestic agenda for the environment.
The backbone of Brazilian environmental policy is found in the 1988 Constitution(45) and in the 1981 National Environmental Policy Act. This legal framework provides for the protection of Brazil's environment for present and future generations as a common responsibility of the State and the community. The Federal government is in charge of setting standards for environmental quality, granting permits for activities that may pollute or harm the ecosystems, and defining conservation strategies. State and local governments have broad regulatory autonomy in matters related to environmental protection and quality. Brazilian environmental legislation has been based on the U.S. EPA's standards.(46)
Brazil is also a party to various international agreements for the protection of the environment: the Basel Convention on Transboundary Movement of Hazardous Wastes, the Montreal Protocol on the Protection of the Ozone Layer, the Biodiversity and the Climate Change Conventions.
Contrast this legal background with the deforestation in the Amazon Basin, the air and water pollution in Rio de Janeiro, Sao Paulo and several other large cities, the land degradation and water pollution caused by improper mining activities and the recurring floods in the south, to name a few problems. What is the reason for this disarray? U.S. Ambassador Melvyn Levitsky said Brazil had decided to take up a sustainable development plan for the Amazon basin and abandoned the notion of increasing the area's population. But the region lacks the resources to enforce environmental laws.(47)
Furthermore, the federal government as we have seen is limited to the formulation of general norms, delegating to the states and counties the specification of those norms. Few States have implemented specific enough environmental policies to be workable.(48)
Under article 26 of the Constitution the destruction of the Amazonian and the Atlantic forests constitutes a crime. This provision has been rarely enforced and is based upon similar codes in France where it has been applied more successfully. Even in the cases of those States that have enacted specific provisions for the protection of the fauna, the soil, air, water and natural resources, there is frequently no mention of how these measures would be implemented or funded. Without such practical steps, it is unlikely that enforcement will occur.
Although Brazil's efforts in the implementation of its environmental policy should not be disregarded -and particularly since it's the Brazilian Pantanal that is mostly threatened by the Hidrovía project- we must not forget that this is a multinational undertaking, thus governed by rules of an international nature.
What do these rules say concerning the environment? As we have seen, the parties concerned in the Hidrovía project are signatories of the Mercosur Treaty, with the exception of Bolivia, who nevertheless has signed an agreement of economic cooperation with Mercosur members. This agreement explicitly provides for the facilitation of river transportation and navigation through the Hidrovía. Even before the Mercosur, these countries had signed a Treaty on the Hidrovía (1986) whose goals were to establish a single common legal system for all freights and passengers and a common law of the rivers, freedom of navigation and transit. This is the core of Hidrovía regulations. None of the legal provisions makes any mention to the protection of the environment, much less to sustainable development. As we have seen, the primary goal is to foster the economic growth of the region; in the context of development, the environment becomes a secondary concern.
To anybody familiar with NAFTA negotiations, discussions over environmental protection seem to be inevitable in a trade agreement. Mercosur, however, has done little to formally address issues such as the environmental impact of its multinational projects, including the Hidrovía. So far, environmental protection has only been mentioned with relation to the control of hazardous waste transportation between the Members and to the need to adopt measures to promote new technologies for environmental protection. The current state of environmental negotiations seems to be on hold.(49)
We must keep in mind that NAFTA provides a detailed and structured
analysis of different issues -including environmental objectives- whereas MERCOSUR
originated as a treaty-framework. The extension and complexity of NAFTA may seem
oppressive compared with the foundational treaties of MERCOSUR which contain merely one
hundred articles and six annexes. All this regulation gives the NAFTA Treaty a complexity
that significantly exceeds the traditional Latin-American notion of free-trade-zone. And
this is also evident in environmental issues: so far only general
principles and goals have been established. As with the individual case of Brazil, the problem to face will be implementation and enforcement.(50)
International law, just as domestic law, contains "general principles" that aid in the interpretation of customary laws and treaty norms. In the field of international environmental law, sustainable development is one of those principles. In order to further sustainable development, when no international agreement is attained, one of the mechanisms used by institutions and NGOs has been the enunciation of "soft law"(51) principles regarding the environment.
The International Law Association ("ILA"), for example, adopted in 1966 a resolution known as the Helsinki Rules on the Use of Waters of International Rivers. These rules call for the "equitable utilization of the waters of an international drainage basin". What is reasonable and equitable should be determined in the light of the relevant factors available for each particular case, including among others:(52)
The relevance of the Helsinki rules, as of all soft law, is that it might develop into customary law, i.e. it might be taken into account in the practices of states. Yet in this particular case, the groundwork of the rules could support the arguments of both antagonizing positions, since the factors to be taken into account also include economic considerations.
Some of the declarations and opinions included in this work and attributable to government officials may sound simplistic, unrealistic, and even rash. In a recent conference on Hidrovía at Harvard University(53) , former Uruguayan President Luis Alberto Lacalle stated that Hidrovía is not only an engineering project, its major goal is the development of these regions. His opinion was that:
"Nothing so far was being considered that could be a change in the system of the Pantanal. The works that are being projected are mainly the possibility of using the rivers day and night (right now it's only possible to navigate during the day). Dredging won't go farther than 10 ft. in some parts of hidrovía, and some straightening of the channels in the bends of some parts of the river, because the barges cannot navigate easily in the curves of the river. The main works thus are not major changes in the physical aspects of the river. … we are thinking not only of the dangers of physically changing the course of the river, which we are not going to do, we're only thinking of correcting some parts for navigation…"
In the humble opinion of this writer, "dredging and straightening" of a river do sound like a major project. In 1882, Mark Twain wrote regarding the Mississippi River Commission that it had undertaken "… the job of making the Mississippi over again, a job transcended in size only by the original job of creating it" "… Ten thousand River Commissions, with the mines of the world at their back cannot tame that lawless stream, cannot curb it or confine it, cannot say to it, Go here, or Go there, and make it obey…" Even Twain's voice is young. For centuries people who know rivers have been questioning flood control. A thousand years before the birth of Christ the practice was outlawed by the Egyptians, who depended on the Nile's life-giving respiration. "Do not hinder the waters of the inundation", ordered the Book of the Dead.(54)
The world has witnessed the catastrophic consequences of these attempts: over and over again, rivers have combated man's attempt to alter their courses, through channels or dams. Shouldn't we consider these admonitions?
Hidrovía countries' authorities seem to be willing to work on the establishment of an environmental authority for the rivers. However, to this date no legal or institutional framework has been established in order to deal with this issue. It is clear that notwithstanding environmental costs, the general notion is that the project must be carried out, since it's regarded as the opening of a better life for many people in that part of the world. This is only the expression -one more time- of the widespread feeling in developing countries (and many times, also in developed countries) that economics comes first, because it serves the most urgent needs of the people, that cannot be postponed due to environmentalist considerations. Thus, the priority is clear.
Yet, another question remains unanswered: even if the economic promises come true -and there seem to be some doubts about that, given the high cost of the project itself- how good would that be for the thousands of people that might lose their homes, drown in the process, or find that vast areas have become useless dry land?
It's not easy to draw a line in such a gray area. WWF's alternative of a partial
Hidrovía sounds like a reasonable compromise, eliminating the most ominous environmental
previsions, yet allowing an economic doorway to development and integration in the area.
In addition, this development could be further backed by an increased support of
ecotourism, and the implementation of other means of transportation in the area. So far,
projects include a highway linking Sao Paulo - Montevideo and Buenos Aires; further
infrastructure should include the needs of Paraguay, Bolivia and western Brazil.
Finally, the position of the IDB and the UNDP may prove to be decisive in this matter;
if, as they have repeatedly stated, they choose to support the project giving first
consideration to the results of objective environmental impact assessment reports, the
antagonizing positions may reach a judicious compromise. However, it is not yet clear
whether this will be the case, or whether these institutions will prove to be a reasonable
arbitrator for this particular issue. Hence, we cannot stress enough the significance of
the participation of private sectors and NGOs in the elucidation of this argument. The
future of an entire ecosystem may depend on it.