The Judicial Ban on Asbestos in Brazil: A Turning Point in the Relationship between International Law and Collective Fundamental Rights?

—Ranieri Lima Resende, PhD. in Law Candidate, Federal University of Rio de Janeiro (Brazil); Visiting Doctoral Researcher, New York University.*

Celebrated as one of the most important news stories of 2017 by environmentalists and human rights’ activists,[1] the recent prohibition of asbestos production and commerce throughout the country, ordered by the Brazilian Supreme Court on November 29, removes Brazil from the “Black List” of global exporters of this highly dangerous mineral.[2]

Accordingly, on December 5 the biggest Brazilian asbestos company (Eternit) officially informed its shareholders and the general market that its subsidiaries would fully suspend asbestos production.[3] Another immediate consequence was felt by the U.S. chlor-alkali industry, which had previously imported from Brazil about 95% of the asbestos that it used.[4]

In this most recent Asbestos case, the Brazilian Supreme Court relied extensively on international human rights law and international environmental law to reach its conclusion. This stands in stark contrast to other recent cases, as explained below. Thus, the Asbestos case may represent a turning point in the Court’s use of international law in collective rights cases.

Asbestos Cases: A Brief History (2003/2017)

Because of the permissive aspects of the federal legislation on Chrysotile asbestos,[5] some Brazilian states have adopted laws which forbid all types of asbestos production and commerce within their territories. To oppose the Mato Grosso do Sul and São Paulo State Laws, the Governor of Goiás (the biggest asbestos-producing state) requested that these prohibitory laws be declared unconstitutional by the Brazilian Supreme Court, based on the abuse of state competence in legislating with respect to production and consumption, environment and pollution control, and health protection.[6] After some internal debate, the Court declared the state laws unconstitutional in 2003, allowing the permissive Federal Statute to prevail.[7]

Notwithstanding this decision, the São Paulo state adopted a new asbestos full-ban law in 2007. Following the same pattern, the issue was again presented to the Supreme Court, but in this case, the judges did not follow the Court’s precedent and did not suspend the State Law’s efficacy as a provisional measure (2008). One of the main  arguments of the plenary decision was ILO Convention No. 162, citing the higher fundamental protection of the right to health and the right to a balanced environment.[8]

In August 2012, to gather technical data on the properties of asbestos and their medical, social, economic and environmental repercussions, the Federal Supreme Court organized  two large public hearings for scientists, experts, and representatives of public agencies, unions and NGOs. Despite their direct connection to one specific case, the results of this initiative, synthesized in 487 well-documented pages, were mostly in favor of a full ban on asbestos. These materials became available to the general public.[9]

Five years later, the Court’s Plenary analyzed an unconstitutionality remedy against the permissive Federal Law and ruled that its content was incompatible with the Constitution and certain human rights treaties. In her opinion, which was followed by a small majority,[10] the Rapporteur Judge Rosa Weber asserted that “the Federal Law did not adequately and sufficiently protect the fundamental rights to health and to a balanced environment, and was not consistent with international supralegal standards, especially ILO Conventions No. 139 and 162, and the Basel Convention”.[11] The constitutional question was resolved in the plenary judgment of November 29, when the Brazilian Supreme Court recognized the unconstitutional status of the Federal Law with mandatory and erga omnes effects supported by a sufficient majority.[12]

Sugarcane Burning Case (2015)

The judicial ban on asbestos is an important example of progressive consolidation on human rights and environmental protection, but, at the same time, it represents a turning point in comparison with a less economic interventionist option assumed by the Brazilian Supreme Court in the Sugarcane Burning case (March 2015).[13]

Used for facilitating the manual harvest, the sugarcane burning for ethanol production generates huge quantities of atmospheric polluents, increasing greenhouse gas emissions and the ocurrences of respiratory diseases, especially in workers and urban populations surrounded by cane fields.[14] Based on these reason, a municipal law of Paulínia (SP) immediately prohibited this harmful agricultural practice, in conflict with the state law which established a gradual elimination of the burning throughout the São Paulo state.

After public hearings,[15] the Supreme Court adopted the state law rather than the more protective municipal standards for collective health and the environment. According to a large majority (9 to 1), the Court established that the local public interest in municipal environmental laws must be consistent with  state and federal laws.[16] In this sense, the municipal law’s immediate prohibition was declared unconstitutional, in favor of the most flexible state law.

The major difference between the Asbestos and Sugarcane Burning cases is in the use of international human rights law and international environmental law. In the Asbestos case, the Court assumed a strong position in favour of the supralegal status of ILO Conventions as part of the human rights core treaties,[17] and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, in order to declare the unconstitutionality of the federal law which had permitted Chrysotile asbestos. In contrast, neither treaty nor international law-related argument was even mentioned in the Sugarcane Burning decision, in spite of the direct involvement of the human right to a healthy environment[18] and the international legal regime on climate change[19] strongly connected to the case.

Conclusion

The Brazilian Supreme Court’s intensive use of international human rights law and international environmental law in the most recent Asbestos case stands in sharp contrast to the complete absence of the use of these standards in Sugarcane Burning. A key question is whether the Asbestos decision has created a new pattern of integration between international and constitutional law for future cases focused on collective fundamental rights. We must wait and see.

Suggested citation: Ranieri Lima Resende, The Judicial Ban on Asbestos in Brazil: A Turning Point in the Relationship between International Law and Collective Fundamental Rights? Int’l J. Const. L. Blog, Jan. 10, 2018, at: http://www.iconnectblog.com/2018/01/the-judicial-ban-on-asbestos-in-brazil-a-turning-point-in-the-relationship-between-international-law-and-collective-fundamental-rights/

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* I thank Professor David E. Landau and Sergio Verdugo for their valuable commentaries, and Professors Gráinne de Búrca, Benedict Kingsbury and Lewis A. Kornhauser for their academic incentive. E-mail: ranieri@nyu.edu

[1] Folha de S. Paulo, Brazilian Supreme Court Bans Use of Asbestos in Brazil, 30 Nov. 2017, available at http://www1.folha.uol.com.br/internacional/en/business/2017/11/1939473-brazilian-supreme-court-bans-use-of-asbestos-in-brazil.shtml.

[2] A number of deadly deseases have been identified as the direct effects of human contact with all types of asbestos, such as mesothelioma, lung cancer, cancers of the larynx, ovaries, pharynx, stomach and colo-rectum, asbestosis, and other severe respiratory diseases. According to the World Health Organization, about 107,000 deaths per year are attributed to asbestos exposure in the workplace, with several thousand more deaths attributed to exposure in the home.

[3] Eternit S.A., Material Fact: Suspension of Activities at SAMA Mining Company, 5 Dec. 2017, available at https://ri.eternit.com.br/listgroup.aspx?idCanal=5I8QnobhEfykAbd4/Hp8dA==&linguagem=en#.

[4] Chemical and Engineering News, Brazil Asbestos Ban Impacts U.S. Imports, 18 Dec. 2017, available at https://cen.acs.org/articles/95/i49/Brazil-asbestos-ban-impacts-US.html.

[5] “Chrysotile asbestos (white asbestos), a mineral subgroup of Serpentine, and other natural and artificial fibers from any source but used for the same purpose, will be extracted, industrialized, used and traded in accordance with this Law”. (Lei Federal 9.055, de 01.06.1995, artigo 2º, available at http://www.planalto.gov.br/ccivil_03/leis/l9055.htm.).

[6] Constituição Federal de 1988, artigo 24, V, VI, VIII and XII, and § 1º, § 2º, § 3º and § 4º.

[7] Brazilian Supreme Court (S.T.F.), ADI No. 2.396/MS, Relator: Min. Ellen Gracie, 8 May 2003, Diário de Justiça 1. Aug. 2003, available at http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=375387. S.T.F., ADI No. 2.656/SP, Relator: Min. Maurício Corrêa, 8 May 2003, Diário de Justiça 1. Aug. 2003, available at http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=266877.

[8] S.T.F., ADI No. 3.937/SP (Medida Cautelar), Relator: Min. Marco Aurélio, 4 Jun. 2008, Diário de Justiça 9 Oct. 2008, available at http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=553763.

[9] S.T.F., Audiência Pública: Amianto [English title: Public Hearings: Asbestos], available at http://www.stf.jus.br/arquivo/cms/ProcessosAudienciasPublicasAcoesAmianto/anexo/Transcricoes__Audiencia_sobre_Amianto__Texto_consolidado.pdf.

[10] At least 6 votes are required for an unconstitutionality declaration, according to article 97 of the Brazilian Constitution. Initially the majority was only 5 to 4.

[11] ABREA, Voto da Min. Rosa Weber, ADI n. 4.066 [English title: Individual Opinion of Judge Rosa Weber], 45, available at http://www.abrea.com.br/images/tranning/VOTO_ADI_4066_Rosa_Weber.pdf.

[12] S.T.F., STF Reafirma Inconstitucionalidade de Dispositivo que Permitia Extração de Amianto Crisotila [English title: Brazilian Supreme Court Reinforces the Unconstitutionality of the Law which Has Allowed the Chrysotile Asbestos’ Extraction], available at http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=363263&caixaBusca=N.

[13] S.T.F., RE No. 586.224/SP, Relator: Min. Luiz Fux, 5 Mar. 2015, Diário de Justiça Eletrônico 7 May 2015, available at http://www.stf.jus.br/portal/processo/verProcessoPeca.asp?id=306750595&tipoApp=.pdf.

[14] Helena Ribeiro & Célia Pesquero, “Queimadas de Cana-de-açúcar: Avaliação de Efeitos na Qualidade do Ar e na Saúde Respiratória de Crianças” [English title: Sugarcane Burnings: Analysis of their Effects on the Air Quality and the Children’s Respiratory Health], Estudos Avançados 24 (2010): 255-271, 257.

[15] The material of the Public Hearing on 22 April 2013, in which several experts, governmental and unions’ representatives have participated, is available at http://www.stf.jus.br/arquivo/cms/audienciasPublicas/anexo/NotasTaquigraficasQueimadasCanaviais.pdf.

[16] S.T.F., supra note 13.

[17] See Ranieri Lima Resende, “Responsabilidade Internacional do Estado por Ausência de Produção Legislativa Eficaz Dirigida à Proibição do Amianto (Asbesto): Análise do Caso Brasileiro” [English title: International State Responsibility for Absence of Effective Legislation for the Asbestos’ Prohibition: Analysis of the Brazilian Case], La Responsabilidad Internacional del Estado y el Medio Ambiente: Un Debate Urgente, ed. Alberto César Moreira & Rafael A. Prieto Sanjuán (Bogotá: Pontificia Universidad Javeriana, 2016), 403-467, available at https://www.researchgate.net/publication/312160769_Responsabilidade_internacional_do_Estado_por_ausencia_de_producao_legislativa_eficaz_dirigida_a_proibicao_do_amianto_asbesto_analise_do_caso_brasileiro_English_title_International_State_Responsibility.

[18] See Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights – “Protocol of San Salvador” (1988), article 11; and International Covenant on Economic, Social and Cultural Rights (1966), article 12.

[19] See United Nations Framework Convention on Climate Change (1992) and its Kyoto Protocol (1997).