Brazil may violate its commitments with the UN Human Rights Committee if Lula doesn’t veto the entire Bill 2903

19/Oct/2023

Brazil may violate its commitments with the UN Human Rights Committee if Lula doesn’t veto the entire Bill 2903

The UN Committee recommends that the Brazilian state rejects the Time Frame thesis

The enactment of Bill 2,903/2023, which questions the demarcation of Indigenous Lands (TIs) with the Time Frame thesis and seeks to authorize the construction of infrastructure in TIs without prior consultation, among other proposals, makes it impossible to comply with the recently published recommendations of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) of the UN. The Committee on Economic, Social, and Cultural Rights (CESCR) recommends that the Brazilian state expedite the demarcation, regularization, and titling of the territories of Indigenous Peoples and reject the application and institutionalization of the Time Frame thesis, among other recommendations. Therefore, if President Luiz Inácio Lula da Silva promulgates this Bill, he will be violating the rights of Indigenous Peoples in Brazil and also failing to fulfill the binding commitments of the Covenant.

The International Covenant on Economic, Social, and Cultural Rights (ICESCR), monitored by the CESCR, of which Brazil has been a signatory since 1992, presented its conclusions on October 13th regarding the country’s third periodic report, submitted by the federal government and supplemented by consultations with civil society organizations and movements. In this context, the Apib submitted a document with various complaints about the violation of Indigenous Peoples’ Human Rights.

Regarding the current situation of Indigenous rights violations in Brazil, the Committee recommended in its report: expediting the demarcation of Indigenous Lands; rejecting the Time Frame thesis; establishing legally binding protocols for the exercise of the right to prior, free, and informed consent on any decision affecting Indigenous populations; adopting measures against deforestation; protecting water resources polluted by activities such as mining; and ensuring non-discrimination based on race or culture against Indigenous Peoples, among other recommendations.

The recommendations from the Committee’s report (CESCR) aim to ensure the respect for human rights by the State Parties and provide guidance for the implementation of the Covenant (ICESCR), to which Brazil is a signatory. Therefore, compliance with the Covenant is binding for Brazil since the country ratified it. Article 1 of the Covenant guarantees the right to self-determination, economic, social, and cultural development, and free access to wealth, natural resources, and means of subsistence for all peoples. Many of the proposals in Bill 2903 clearly violate these conditions.

International Covenant on Economic, Social and Cultural Rights

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Source: International Covenant on Economic, Social and Cultural Rights

These recommendations issued by the CESCR regarding the rights of Indigenous Peoples in Brazil align with the recommendations issued by the Human Rights Committee concerning the International Covenant on Civil and Political Rights (CCPR) in September 2023. Brazil also underwent a review by the CCPR this year, and after a report submitted by Apib and other organizations, this Committee also expressed its concerns about rights violations resulting from the potential legalization of the Time Frame thesis. Therefore, the promulgation of Bill 2903 would be a violation of Brazil’s commitments to both Committees, as well as other international treaties to which the country is a signatory.

For more information:

Report from the Committee on Economic, Social and Cultural Rights (CESCR) (October 13)
Report of complaints submitted by Apib for Brazil’s third periodic report to the CESCR (September 20)
Report from the Human Rights Committee regarding the International Covenant on Civil and Political Rights (CCPR) (September 6)
Report of complaints submitted by Apib for Brazil’s third periodic report to the CCPR (June 19)

What are the recommendations from the CESCR report that Lula will violate if he does not fully veto Bill 2903:

1. Environment and Climate Change: The Committee expresses concern about the increase in deforestation caused by agricultural expansion and the exploitation of natural resources, impacting the livelihoods of local and traditional communities and increasing their vulnerability to climate change. Therefore, it recommends that the State take measures to stop deforestation.
– Bill 2903, through the Time Frame thesis, questions the demarcation processes of territories, including those of Indigenous Lands already demarcated, which poses a threat not only to the future of Indigenous Peoples but to all of humanity. In the last 30 years, Brazil has lost 69 million hectares of native vegetation. However, only 1.6% of this deforestation was recorded in Indigenous Lands. Furthermore, it will be impossible to achieve zero deforestation, as promised by President Lula, and meet climate targets for reducing greenhouse gas emissions (known as NDCs, in English) if Bill 2903 plows through some of the country’s lands where deforestation rates are lower and biodiversity is higher. Preserving our biomes and policies committed to addressing climate change cannot be considered without ensuring full enjoyment of Indigenous Peoples’ territories.
2. Land Rights: The Committee raises concerns about land disputes and the resulting violence caused by territorial conflicts, recommending that the Brazilian state “protect the rights of Indigenous Peoples to ownership, use, development, and control of their lands, territories, and resources with complete security, and avoid intrusion by third-party occupants.” It also recommends that the state compensate Indigenous Peoples for any damage or loss to their territories. Furthermore, the Committee recommends that Brazil expedite the demarcation, regularization, and titling of Indigenous Peoples’ lands and reject the application and institutionalization of the Time Frame doctrine.
– This would be the main violation of the ICESCR if Bill 2903 is promulgated by President Lula because the project, approved urgently in the Senate by the ruralist caucus, aims to legalize the invasion of Indigenous territories in Brazil, disregarding the indigenato theory that recognizes the ancestral and inalienable rights of Indigenous peoples to their territories. The bill seeks to legalize the Time Frame condition for the demarcation of new lands and to review already-demarcated lands, questioning the traditional occupation, original rights, and exclusive use by Indigenous peoples of their territories.
3. Cultural and Survival Rights: According to the Committee, the lack of protection and demarcation of Indigenous Territories (TIs) hinders the exercise of their cultural rights. Therefore, it recommends that the State ensures that traditional populations have the conditions to “preserve, develop, express, and share their identity, history, culture, languages, traditions, and customs, as well as maintain their spiritual connection with their lands, territories, and resources.”
– As mentioned earlier, Bill 2903 questions in various ways the rights of Indigenous Peoples to their lands, which implies denying decent living conditions for Indigenous Peoples in Brazil and putting their cultures and survival at risk. Furthermore, the bill relaxes the policy of no-contact with Indigenous Peoples in voluntary isolation, which could signify the genocide of these peoples. For these reasons, the Indigenous movement has dubbed Bill 2903 as the Indigenous Genocide Bill.
4. Exploitation of Resources, Investments, and the Right to Prior, Free, and Informed Consultation of Indigenous Peoples: The Committee requests that Brazil develop and implement legally binding protocols and take the necessary administrative measures to ensure that prior, free, and informed consultations are conducted systematically and transparently with Indigenous Peoples, Quilombolas, and other traditional communities regarding projects that may affect them, and that independent studies on potential social, environmental, and human rights impacts are conducted.

– The Committee expresses its concern about the lack of compliance with such measures in the country, underscores the fact that Brazil continues to grant licenses for the exploitation of natural resources and large-scale investments without consulting affected communities, and requests that the Brazilian government “keep in mind and fulfill the international obligations and commitments arising from its ratification of the International Labour Organization Convention concerning Indigenous and Tribal Peoples (ILO 169), and its endorsement of the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international standards.”

– The bill proposes the legalization of natural resource exploitation in Indigenous Territories, partnerships for agricultural exploitation, as well as the authorization of the construction of roads, hydroelectric plants, and other developments in Indigenous Territories, without prior, free, and informed consultation.

5. Discrimination Against Indigenous Peoples in Brazil: The Committee points to the “continued absence of comprehensive anti-discrimination legislation” in Brazil, as well as the prevalence of socioeconomic, racial, and gender inequalities, social stigma, and discrimination against disadvantaged and marginalized groups. It recommends that the Brazilian government “take all necessary measures to prevent and combat persistent discrimination against Indigenous Peoples and other traditional communities.”

– The bill introduces racist criteria regarding who is or is not considered indigenous, poses threats to the so-called “acculturation” of Indigenous Peoples, and violates the right to racial self-identification guaranteed by the Constitution.

6. Right to Water and Sanitation: The Committee expresses its concern about access to clean water and its increasing pollution due to agricultural expansion and mining activities. Therefore, it recommends that the State “take measures to protect its water resources, including addressing the negative impacts of economic activities and natural resource exploitation, as well as the effects of climate change, and adopt a legal framework that ensures legal accountability for state and private companies that pollute water resources.”

– The bill proposes the legalization of monocultures, soybean farming, cattle ranching, and the promotion of mining and mining activities in Indigenous Lands, which have the consequence of polluting water resources.

About the International Covenant on Economic, Social, and Cultural Rights (ICESCR) of the UN:

The International Covenant on Economic, Social, and Cultural Rights (ICESCR) was adopted by Resolution No. 2,200-A (XXI) of the United Nations General Assembly in 1966 and ratified by Brazil on January 24, 1992. Its purpose is to give binding force to the commitments established in the Universal Declaration of Human Rights. Accordingly, the status of these rights should be monitored by the periodic submission of reports by States Parties, assessing the degree of their implementation and the difficulties in realizing them. The oversight of the Covenant falls under the purview of the UN Committee on Economic, Social, and Cultural Rights when evaluating these reports. Brazil has been subject to periodic reviews by the ICESCR Committee on previous occasions, the most recent of which occurred in 2009. It is worth noting, however, that Brazil has chosen not to ratify the Optional Protocol to allow victims of violations of economic, social, and cultural rights access to international justice.

About Apib

The Articulation of Indigenous Peoples of Brazil (Apib) is a national reference body of the indigenous movement in Brazil, created from the bottom up. It brings together seven regional Indigenous organizations (Apoinme, ArpinSudeste, ArpinSul, Aty Guasu, Terena Council, Coaib, and Guarani Yvyrupa Commission) and was born with the purpose of strengthening the unity of our peoples, fostering coordination among different regions and Indigenous organizations in the country, as well as mobilizing Indigenous peoples and organizations against threats and violations of Indigenous rights.

For more information and to schedule interviews, you can contact the Apib press service:

[email protected]

Communication management – Samela Sateré Mawé – +55 (92) 98285 5077

International communication service:  +55 (65) 99686 6289 / +55 (21) 96665 5518 / +55 (92) 99430-3762