The transnational institutional dialogue in Belo Monte Dan Case
| Autor | Luis Claudio Martins de Araujo |
| Cargo | Mestrando em Direito pela Universidade Federal do Rio de Janeiro (UFRJ) |
| Páginas | 117-149 |
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Veredas do Direito, Belo Horizonte, v.9 n.18 p.117-149 Julho/Dezembro de 2012
THE TRANSNATIONAL INSTITUTIONAL
DIALOGUE IN BELO MONTE DAM CASE
Luis Claudio Martins de Araujo
Mestrando em Direito pela Universidade Federal do Rio de Janeiro (UFRJ). Pós-graduado em
International Environmental Law pelas Nações Unidas (United Nations Institute for Training
and Research-UNITAR) com extensão em International Law pela Hague Academy of Interna-
tional Law (HAIL) e pela Inter-American Juridical Committee/Organization
of American States (IAJC/OAS).
End. Eletrônico: luis.araujo@agu.gov.br
ABSTRACT
This article intends to discuss the relationship between the Supreme Court
of Brazil and the Inter-American Commission on Human Rights in the Belo
Monte Dam Case, bearing in mind that states must cooperate to avoid trans-
boundary environmental problems. The classic concepts of nation-state so-
vereignty and the permanent Sovereignty over natural resources based on
territorial integrity and the right to self-determination and non-intervention
of the states is guaranteed by the main international instruments. Similarly,
the International Environmental Law, structured upon the unquestionable ri-
ght of an ecological balance, is a standard to be followed by the international
community, in order to guarantee that environmental damage does not cause
harm to areas beyond the limits of the state. Thus, states have the sovereign
right over their own resources, and have also the responsibility to ensure
environment protection. Therefore, this article focuses on demonstrating
that in the Belo Monte Dam case, the dialogue between domestic and inter-
national institutions according to international cooperation is mandatory to
guarantee coherence and unity to the international system.
Key words: Belo Monte Dam. Institutional dialogue. Environment. State
sovereignty. Cooperation.
THE TRANSNATIONAL INSTITUTIONAL DIALOGUE IN BELO MONTE DAM CASE
118 Veredas do Direito, Belo Horizonte, v.9 n.18 p.117-149 Julho/Dezembro de 2012
1 THE BELO MONTE DAM
The Belo Monte is a proposed hydroelectric dam complex on the
Xingu River in the state of Pará, Brazil, which would make it the second-
largest hydroelectric dam complex in Brazil and the world’s third-largest
in installed capacity that could guarantee electricity to the main Brazilian
power grid and which would distribute it throughout the country.1
The project of the Belo Monte Dam Complex dates back to
1975 during Brazil’s military dictatorship when a hydrographic study to
locate potential sites for a hydroelectric project on the Xingu River was
constructing dams on the Xingu River.2
After many years of discussion and legal issues, the Brazilian
National Congress promulgated the Legislative Decree 788/2005
authorizing the implementation of Belo Monte Dam as follow:
Article 1. Is authorized the implementation of Belo Monte Dam in the Xingu River,
located in Para State, to be developed after economic, environmental and others
technical studies. article 2. The studies referred to in art. 1 of this Legislative Decree
shall include, among others, the following: I - Environmental Impact Assessment
- EIA; II - Environmental Impact Report - EIR; III - Integrated Environmental
Assessment - IAA of the Xingu River basin, and IV - a study of an anthropological
project, and pursuant to § 3 of art. 231 of the Constitution, the affected communities
must be heard. Sole Paragraph. The studies mentioned in the main article, with the
participation of the State of Para. article 3 The studies mentioned in art. 1 of this
Legislative Decree will be crucial to allow the measures in the legislation aimed at
implementing the Belo Monte Dam.
Subsequent to the Legislative Decree 788/2005, the Brazilian
environmental agency IBAMA had granted a provisional environmental
license in February 2010, one of three licenses required by Brazilian
legislation for development projects. A partial installation license was
granted on the 26th of January 2011, authorizing the beginning of the
1 Belo Monte - Eletrobras, http://www.eletrobras.com (27 July 2011).
2 Belo Monte, http://topicos.estadao.com.br/belo-monte (27 July 2011).
Luis Claudio Martins de Araujo
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Veredas do Direito, Belo Horizonte, v.9 n.18 p.117-149 Julho/Dezembro de 2012
construction activities, including forest clearing, the construction of
easement areas, and the improvement of existing roads for the transport of
equipment and machinery. The license to construct the dam was issued on
the 1st of June 2011, after the Environmental Impact Assessment and the
opportunity of the public access to Information and public participation.3
However, besides the economic advantage, the project of the
Belo Monte Dam has a strong opposition in domestic and international
community, especially bearing in mind the impacts in the ecosystems and
the biodiversity and to the indigenous and local communities.
2 THE INTER-AMERICAN COMISSION ON HUMAN RIGHTS
POSITION IN THE BELO MONTE CASE
The Inter-American Commission on Human Rights (IACHR)
was created in 1959 as one of two bodies in the inter-American system
for the promotion and protection of human rights. The IACHR is an
autonomous organ and a permanent body of the Organization of American
States (OAS)4 5 which mandate is found in the Organization of American
States (OAS) Charter6 and the American Convention on Human Rights7,8.
3 Belo Monte, http://topicos.estadao.com.br/belo-monte (27 July 2011).
4 The origins of Organization of American State dates back to the 1826 in Congress of Panama, when
Simon Bolívar proposed the creation of a league of American republics. Thus in 1889/1890, at the
First International Conference of American States in Washington-D.C., the International Union of
American Republics was founded. Subsequently, at the Fourth International Conference of American
States (Buenos Aires, 1910), the name of the organization was changed to the “Union of American
Republics”. Later, the experience of World War II convinced the States to adopt a system of collective
security by the Inter-American Treaty of Reciprocal Assistance (Rio Treaty) signed in 1947 in Rio de
Janeiro. Finally, in March and May 1948 in the Ninth International Conference of American States held
in Bogota was created the Organization of American States
5 Particularly, the Organization of American State (OAS) aims at the coordination of the member States
allowing the integration process based on the reciprocal rights and obligations of the States. Since its
inception, the Organization of American States has set the tone for the structure to support democratic
processes in the region.
6 OAS Charter, http://www.oas.org/dil/treaties A-41_Charter_of_the_Organization_of_American_
States.htm, (27 August 2011).
7 AMERICAN CONVENTION ON HUMAN RIGHTS “PACT OF SAN JOSE, COSTA RICA”, http://
www.oas.org/juridico/english/treaties/b-32.html (27 August 2011).
8 It’s important to stress that the i nter-American human rights system was born with the adoption of
the American Declaration of the Rights and Duties of Man in Bogotá, Colombia in April of 1948 and
-
tion on Human Rights was adopted and in 1978 the Convention entered into force. As of August of
Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras,
Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay and
and ensure. The Convention also creates the Inter-American Court of Human Rights.
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