Visit to Brazil, Report of the Special Rapporteur on the implications for human rights of the environmentally sound
management and disposal of hazardous substances and wastes
COVID19 website, and discrediting statistics of COVID19 cases, already impeded by low
capacity to conduct testing and slow roll-out of testing kits,143 obscured health data,
particularly regarding favelas and rural areas.
VII. Access to justice and right to an effective remedy
81.
Everyone in Brazil has the right to an effective remedy for violations and abuses of
human rights from exposure to hazardous substances. This is principally the duty of the State.
However, when such abuses occur, businesses have corresponding responsibilities. 144
82.
Brazil has made progress in ensuring fulfilment of the right to remedy. Human rights
institutions, including the strengthened Federal Public Defender’s Office for Citizens’
Rights, and public prosecutors, have contributed to improving access to justice. 145 For
example, the Public Defender’s and Public Prosecutor’s office have been instrumental in
advocating for victims affected by the Brumadinho dam collapse, and the communities in
Piquiá de Baixo. There have also been notable efforts at improving health services to address
health impacts of toxic exposure, as explained earlier in the report.
83.
In addition, a good practice in Brazil is the concept of indirect liability. This equitable
doctrine can help ensure accountability of investors and other beneficiaries for human rights
abuses.146 Brazil notably improved remediation processes to address the Brumadinho disaster
relative to the Mariana disaster, described below.
84.
Whether for illnesses arising from chronic exposure to toxic substances with some
level of scientific uncertainty, or the remediation processes, Brazil faces challenges in
upholding its obligations to ensure that victims of toxic exposure realise their right to access
to justice. For example, the people of Piquiá de Baixo continue to suffer from the 1970s to
date, with uncertainty as to if and when their promised remedy will finally materialize. 147
85.
Accountability and reparations for victims is wanting, where in many cases nobody is
held accountable for unquestionable environmental crimes, attacks, and murders. For
example, investigations and prosecutions failed to hold accountable the perpetrators of the
murder of José (Zé) Maria do Tomé, who advocated for protection against poisoning by aerial
spraying of pesticides.148 Following the Mariana and Brumadinho disasters, no corporate
executive of Vale, BHP or Samarco stands convicted of criminal conduct, a travesty of justice
suggesting some in Brazil are indeed above the law.
86.
An effective remedy includes access to healthcare. While the Unified Health System
enables such access, challenges exist. Healthcare service provision in rural areas,
acknowledging efforts including AMBIU ambulances, still is lacking.149 Various examples
exist including in the oil and gas industry, where there is a lack of regard for healthcare
provision as part of accountability and reparations for victims. For example, in Piquiá de
Baixo, community members reported that when children are taken to a health centre,
insufficient diagnoses carried out, and general medication given for cases suspected to be air
pollution impacts. Heightened vulnerability of the community members including chronic
respiratory diseases places them in a situation of particular concern of susceptibility to
COVID19.150 Moreover, mental health needs remain unsatisfactorily addressed among
143
144
145
146
147
148
149
150
Medicins Sans Frontieres (17 June 2020) https://www.msf.org/coronavirus-covid-19-nightmarecontinues-brazil.
A/74/480.
IACHR (2018) https://www.oas.org/es/cidh/prensa/comunicados/2018/238OPeng.pdf.
https://www.lexology.com/library/detail.aspx?g=c1e1fda7-68f2-4572-8a53-ec02e4869488.
FIDH, JnT (May 2019) https://www.fidh.org/IMG/pdf/bresil734anglaisweb2019.pdf.
Aliança pela Alimentação (2019) ; State of Ceara by State Law N. 16.280 of January 20, 2019.
Carol Davy et al (2016). https://doi.org/10.1186/s12939-016-0450-5.
FIDH, JnT and Associação Comunitária dos Moradores de Piquiá (March 2020); FIDH (29 April
2020) https://www.fidh.org/en/region/americas/brazil/brazil-pandemic-disproportionately-impactscommunities-affected-by.
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