BRAZILIAN SUPREME COURT RECOGNIZES THE PARIS AGREEMENT AS A HUMAN RIGHTS TREATY

On 1 July 2022, the Brazilian Supreme Court issued a ruling on ADPF 708 (Ação de Descumprimento de Preceito Fundamental), which is another climate litigation case under the court’s scrutiny (please read here and here for more information about other climate litigation cases submitted to the Brazilian Supreme Court). In summary, political parties filed ADPF 708 in June 2020, claiming the Brazilian Federal Administration had not taken appropriate measures to ensure allocation and use of funds from the Brazilian Climate Fund, which is supposed to play an important role in “climate financing”, pursuant to the Paris Agreement, by supporting climate change mitigation projects in Brazil.

By majority of votes, the Supreme Court accepted the plaintiffs’ claims and (i) recognized the lack of action from the Federal Administration, as it failed to fully allocate resources of the Climate Fund in 2019; (ii) ordered the Federal Administration not to neglect the Climate Fund again; and (iii) determined that the resources from the Climate Fund cannot be withheld (contingenciamento).

The understanding of the Justices was that “the Executive Branch has the constitutional duty to make the Climate Fund’s resources work and allocate them yearly, for purposes of mitigating climate change, its withholding (contingenciamento) being prohibited, due to the constitutional duty to protect the environment, international rights and commitments assumed by Brazil, and the constitutional principle of separation of powers”.

According to Justice Luis Roberto Barroso, the decision is justified not only by the severe Brazilian environmental context, but also because the government’s inaction indicates that Brazil is moving in the opposite direction of international commitments and the mitigation of climate change, threatening the life, health, food security and future economy of the Brazilian population. The Court’s decision caught attention for equating the Paris Agreement to a human rights treaty, while being the first constitutional court to do so. In the Brazilian legal system, this decision grants the Paris Agreement a “supralegal” status, meaning it prevails over ordinary laws and regulations.

This landmark decision further develops the climate litigation landscape in Brazil and sheds light on what can be expected in other cases currently awaiting decisions from the Supreme Court. In addition, the fact that the Paris Agreement is now deemed “supralegal” may have impacts not only in litigation against governments, but also against the private sector.

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