Development at the Cost of Violations11. This article was produced with the support of the second edition of the Program to Encourage Academic Production in Human Rights, in the first half of 2013, in a partnership between Conectas Human Rights and the Carlos Chagas Foundation. More information available at: http://www.conectas.org/revista-sur/conectas-e-fundacao-carlos-chagas-divulgam-selecionados-para-o-programa-de-incentivo-a-producao-academica-em-direitos-humanos?pg=2. Last accessed in: May 2013.

2.  Context

The main underlying concern of this article can be summed up in the words of Wamala: “would it be possible to establish the foundations for economic and social development at the same time that the foundations are being established for the realization of individual and collective rights and freedoms?” (WAMALA, 2002, p. 102). Although at first glance it may appear simple to reconcile the interests of modernization and economic growth with the guarantee of human rights, Wamala points out that an empirical study of history reveals that, both in the past and in the present day, the freedoms of individuals and groups have repeatedly been infringed in the name of development.

According to the author, ‘developing’ countries such as those in Africa and Latin America face a different, more complex situation than Western countries, where the peak of economic and industrial development occurred in the 18th and 19th centuries. This is because, while Europe structured the economic foundations of its societies during the mercantilist era, i.e. before they had to cope with calls for individual and collective rights, the countries of the Global South have to pursue economic growth while also responding to the demands for human rights. In previous centuries, it was possible, according to the doctrine of nationalism, to justify restrictions on individual freedoms in favor of the greater common good of the homeland. Terrible working conditions, for example, were considered desirable within the limits of the nation’s demands for growth. Nowadays, constitutional guarantees make it unacceptable from an ethical and legal point of view for governments to collude with rights violations on the pretext of economic benefits – at least in theory.

In practice, however, the needs for economic growth continue to serve as a license for numerous human rights violations around the world. In Brazil, for example, the mentality prevails that certain segments of the population can, or indeed should, bear the burden in favor of an alleged common good. The main message conveyed by the country’s mainstream media creates a context in which criticism is unwelcome. It reinforces the argument that the benefits of development generate improvements in the quality of life for the entire population. Opposing large-scale ventures or mega-projects, therefore, is to oppose Brazil. According to Maybury-Lewis (1992, p. 49), “even inhabiting the regions earmarked for the implementation of these plans can be considered ‘blocking the road to development’, and the punishment of those who stand in the way is generally severe, as the indigenous peoples themselves discovered”.

The authorities – spokespeople of development – then insist, based on very often biased statistics, that the rights of the minority cannot take priority over the potential benefits for the majority. However, again in the words of Maybury-Lewis (1992, p. 52),

This argument obscures the real question. There are morally unacceptable sacrifices that should not be imposed on any peoples. […] If the sacrifices demanded are not morally inconceivable, their imposition on the minority in the name of the majority is only justified if this results in an effective redistribution of wealth for society at large. And this is not the case in Brazil.

It is important, here, to add a disclaimer: this article is not blindly opposed to development projects per se, since it should be recognized that they do indeed offer opportunities for improvements. It is, instead, intended to shed some light on the real social and environmental costs of these projects and identify whose interests they serve and who really benefits from them.

Brazil is currently living through one of those periods in which the country is “governed like an immense construction site and the idea of progress revolves around one objective: the modernization of infrastructure” (ATTUCH, 2008, s/p.). Indeed, the federal government’s Growth Acceleration Program (PAC) is the largest package of construction projects in the country’s history. A critical debate of this situation is essential to find ways for Brazil to reconcile sustainable development with the guarantee of social inclusion and the enlargement of rights.

2.1  World Cup

When, in 2007, Brazilians celebrated being chosen to host the international soccer competition in 2014, few could foresee the perverse impact that the preparations for the mega-event would have on the lives of ordinary citizens. The celebrations of the national sport concealed the tragedy that was bound to unfold, particularly after the experience in South Africa, or based on the experiences in other developing countries that hosted similar events, such as the Olympics in China. Moreover, looking back the legacy of the Pan-American Games in Rio de Janeiro, in 2007, it was possible to foresee that the violations would be accompanied by corruption, lack of transparency or dialogue, as well as the passage of “emergency” legal instruments to facilitate the construction work and public biddings, with little or no observance of social and environmental requirements (SOUZA, 2011).

According to information from Transparência Brasil (Transparency Brazil),³ of all the planned projects for the World Cup – including stadiums, urban mobility improvements, ports, airports, tourism development and security – only the work on stadiums, until the end of 2013, has been more than 50% completed. Data from December 2013 reveal that in all the other areas, less than 25% has been completed so far, with less than a year to go before the event, calling into question the viability of these projects being ready on time. In the rush to keep to a timetable that is already behind schedule and without the proper planning, the transformations legitimized by the World Cup have paved the way for disrespect of the principles of the democratic rule of law (PRADO, 2011).

The fact is that very little or nothing has been done for the World Cup that can be converted into real gains for the local communities; not to mention the potential diversion of funds from other areas, such as health and education, to pay for the construction of luxury stadiums. According to Pillay and Bass (2008), as well as Greene (2003), critical studies on the legacy of mega-events demonstrate that the benefits of these events for developing countries are overestimated, including in terms of generating employment and driving investment. In many cities, the mega-stadiums have become “white elephants”, since their functionality and use after the World Cup is questionable. Besides, only a very small portion of the Brazilian population will have access to them.

In addition to this, none of the interventions so far have been part of a participatory urban planning strategy, as determined by Brazil’s Cities Statute. In most cases, the government has prioritized the interests of the companies sponsoring the event over the preservation of the local culture. One example of this is the renovation of Rio de Janeiro’s Maracanã stadium, whose plans included the demolition of an historic building that from 1953 to 1977 housed the Indian Museum and that today serves as housing and an integration center for dozens of indigenous people from different ethnicities who come to the city.

It should be noted that mega-events involve more than just a series of construction works, but also an urban design project that leads to a restructuring of the social dynamics of the city. This, in turn, introduces a process that geographers call the “commercialization of the city” (ARANTES et al., 2000), which consists of forced evictions and the “gentrification” or cleansing of urban spaces. In other words, the removal of the “undesirable aspects” of a city that wants to present itself as a showcase for the world, namely people living on the streets and everything else that is related to poverty.

As a result of these abuses, a resistance movement has emerged. Slowly but surely, in all the event’s host cities, opposition began to mobilize in what have been called “People’s World Cup Committees”, a pioneer initiative never before seen in countries staging the event. Through their National Coalition (ANCPC), these Committees have organized to denounce abuses and violations, hold public hearings, demand transparency and information, and defend the affected communities, i.e. stand up for a World Cup that is truly ‘ours’. Finally, it is worth highlighting that the discussions around this theme were at the heart of the June 2013 protests.

2.2  Belo Monte

Ever since its initial conception, dating back to the 1980s, Belo Monte has been an extremely controversial project. Today, Belo Monte, which will be the world’s third largest hydroelectric dam, is considered the centerpiece of the Growth Acceleration Program (PAC). The controversy surrounding the project never died, but instead intensified starting in 2010, when the provisional environmental license for its construction was granted.

The controversy involves complex issues, concerning not only the scale of the social and environmental impacts of the project, but also the sustainability of energy generation by the dam, given the seasonable fluctuations of the Xingu river, as well as the cost and the destination of the energy produced, among others (SEVÁ FILHO, 2005). This explains the amount of legal and institutional back-and-forth over the granting of authorization for its construction, which included suspected irregularities and corruption at the heart of the bodies involved in this process. In the midst of legal battles, however, the construction work began in March 2011.

This article does not propose to dwell on how energy mega-projects such as Belo Monte are neither necessary nor viable for a country that claims to be sustainable (BERMANN, 2003). However, even if the construction of the dam were essential for the country, it is undeniable that the way the project has been developed and, above all, how it is being executed, has resulted in countless rights violations in the affected communities.

The situation gets even worse considering that the so-called “conditions”, based on which the project was approved, are not being observed by Norte Energia, the company responsible for its construction. These conditions consist of 40 requirements established by Brazil’s Environmental Regulatory Agency (Ibama) that are intended to mitigate the social and environmental impacts through infrastructure investments in education, health, sanitation and in other areas in the region affected by the project. In theory, it should not be possible to go ahead with the construction of the dam without these investments, but this is not what has happened. The construction work continues despite the lack of compliance with the conditions.

Without additional infrastructure to cope with the population increase of more than 100% as a result of the construction work, the surrounding towns are directly impacted by the growing demand for services and the deterioration of existing social problems. After the completion of the construction work, the swollen population will expose yet another problem: when all the work is done, the dam will employ only a very small portion of these people, drastically increasing the unemployment rate in a region that cannot absorb everyone in the job market, even though some workers will leave when the construction is over. This situation contradicts the official discourse on the benefits of the project in terms of employment generation.

None of these problems are new to Brazil. Indeed, Belo Monte is far from an isolated case, as it presents all the same issues encountered during the construction of hydroelectric dams in the past, such as the Tucuruí and Balbina dams, or even the construction of the Madeira river complex. Although these types of conflicts are concentrated in northern Brazil, it is important to point out that rights violations caused by the construction of dams are not limited to this region. The problems faced by the affected populations in northern Brazil are similar to those encountered in the rest of the country, as confirmed in the report produced by the Council for the Defense of the Rights of the Human Person (CONSELHO DE DEFESA DOS DIREITOS DA PESSOAS HUMANA, 2008). This is why the Movement of People Affected by Dams (MAB) has, for years, been fighting for the recognition and a legal definition of “affected population”, as well as for the guarantee of the right to financial compensation and the realization of prior consultations.

One dangerous facet of this model of “development at any cost” adopted by Brazil is reflected in the policy of retaliation that the Brazilian State assumed in April 2011, when the Inter-American Commission on Human Rights (IACHR) issued a Precautionary Measure (PM) requesting that the Brazilian government immediately suspend the licensing process and the construction work on the Belo Monte hydroelectric complex until the minimum conditions guaranteeing the rights of the affected indigenous peoples were observed.⁴ The Brazilian reaction was unforgiving in its dismissal of the IACHR’s decision. Not only did Brazil refuse to comply with the PM, but in retaliation it also refused, for the first time in history, to attend a meeting of the Organization of American States (OAS) to address the case, and it also temporarily recalled the Brazilian ambassador to the OAS, withheld payment of its annual budget quota and withdrew the candidacy of Brazil’s former human rights minister to the IACHR. This reaction by Brazil can be considered unprecedented, since in the past the country has been the recipient of other precautionary measures from the IACHR and even condemned in four cases by the Inter-American Court, but it has never before responded in such a manner. Quite to the contrary, in the past it has actually demonstrated a willingness to comply with the recommendations and decisions of the Inter-American System.

The pressure was such that in May 2011, the Secretary General of the OAS said publically that the decision would be reviewed and, in September of the same year, the Commission officially announced a substantial modification to the PM on Belo Monte, alleging that the issue is outside the scope of precautionary measures. This political climate of threats, therefore, put the very credibility and efficiency of one of the oldest human rights protection systems at risk. It also exposed the weaknesses of international mechanisms when faced with the political and economic interests of countries and corporations. In this context, we should not lose sight of the fact that, given Brazil’s strong influence in the region, its position is considered crucial to the definition of the future direction of such a fundamentally important system, and also to the maintenance of democratic constitutional orders in the region (VENTURA, 2012).

3.  Human rights violations

It would be impossible, given the limits imposed by this article, to address the full range of human rights violations caused by all the various mega development projects. The list of violations includes everything from labor rights – in relation to the very often undignified and degrading working conditions on construction sites – to gender perspective, for example in relation to the increased rates of child prostitution and rape of women in the areas around the sites. And even less obvious violations, such as the right to food of the affected populations – for example, through the contamination of rivers that affects fishing, grazing and the people who use this water for subsistence.

In order to limit the scope, this article will focus on four specific issues that are generally considered the main types of human rights violations in this context. It is important to note, however, that this division is merely instructive, since the interdependence and indivisibility of human rights implies that a single situation can produce several rights violations at the same time. The presented cases do indeed reveal that the violations are invariably interrelated.

3.1  Right to housing

The forced evictions underway in Brazil, as well as other violations associated with the right to housing, are possibly the most documented type of violation when it comes to mega development projects.

The right to housing covers the right to an adequate standard of living and is not limited to housing, but should also include: legal security of tenure, availability of services, facilities and infrastructure, affordability, habitability, non-discrimination and prioritization of vulnerable groups, adequate location and cultural adequacy (NAÇÕES UNIDAS, 2011). From the full application of this right derives the protection against forced evictions, which should be avoided to the maximum extent possible, since they constitute one of the worst existing types of human rights violations, as the UN has recognized since 1993.

Regardless of the deed or the legal form of residency, everyone has the right to receive protection from forced evictions, which may only occur in order to promote the general public interest, observing the principles of reasonableness and proportionality, and be regulated in order to guarantee fair compensation and social reintegration. The legitimacy of evictions may only be determined through a democratic and participative process, based on transparent information, and after alternatives have been considered and communities have been given sufficient warning (NAÇÕES UNIDAS, 2011).

But everything that “should be” contrasts dramatically with what has actually happened in places like Comunidade do Trilho, in Fortaleza, or Comunidade da Vila do Autódromo, in Rio de Janeiro. Both these decades-old communities are located in areas that, as the cities have expanded, have become coveted by the real estate industry. Recently, opportunistic arguments have been put forward that evictions are essential for the construction projects, even though in fact everything indicates that viable alternatives exist that do not involve the removal of these people. In the case of Vila do Autódromo, for example, residents and universities partnered to develop a Grassroots Plan, presenting an urbanization proposal which demonstrates that there is no incompatibility between the construction of the future Olympic Park and the continued existence of the community and environmental preservation.

In addition to the complete lack of information and the exclusion of citizens from the decision-making processes, intimidation and ruthlessness in the treatment of residents is commonplace. Similar cases can be found in all the cities that are preparing to receive the World Cup, as has been extensively documented. It is estimated that between 150,000 and 170,000 people may be evicted from their homes to make way for this mega-event (ARTICULAÇÃO NACIONAL DOS COMITÊS POPULARES DA COPA, 2011).

The evictions occur not only because the residents are forced from their homes by tractors and the police, and without proper warning, but also due to the lack of guarantees against real estate speculation and the appreciation of properties in certain regions, since artificial price increases can also result in eviction. The explosive rise in property prices and rents has restricted the enjoyment of the right to housing by pushing low-income families into even more insecure situations, exposing them to the risk of becoming homeless.

Judging by the way they are being handled, forced evictions also reveal a discriminatory approach. In the first place, they are discriminatory against poor, historically marginalized communities. The deference with which the mayor of Rio de Janeiro said he would deal with the matter of compensations in one of the few “upper middle class” neighborhoods affected by the construction work, for example, shows the absolute lack of fairness by the authorities in the treatment of citizens. For residents of poor neighborhoods, the government has used different forms of intimidation, such as the marking of houses and warrantless home invasions. In the second place, there is also an element of racism and prejudice against traditional communities. In Porto Alegre, for example, construction work for the World Cup is being used as a pretext for the dispossession of dozens of “terreiro”⁵ Afro-Brazilian religious sites, including what is believed to be the oldest terreiro in the state of Rio Grande do Sul, in the same location for more than 40 years.

The struggle by Brazilian grassroots movements in this area has produced some results. Pressure has reached international spheres, and complaints have been submitted to the UN Human Rights Council (HRC). This has led to important recommendations by the UN Special Rapporteur on the Right to Housing, and also to questions on the matter being raised by countries during Brazil’s Universal Periodic Review in the HRC. In response, the Council for the Defense of the Rights of the Human Person (CDDPH), of the Human Rights Secretariat, created a Working Group on Adequate Housing in 2012 with the mandate to gather information on the housing problems faced by the population, with a focus on the impacts of mega-projects and mega-events, and to forward the recommendations to States and municipalities.

A very similar situation can be observed in rural areas, where countless violations of the right to housing are taking place, with affected populations being forcibly displaced (JERONYMO et al., 2012). In a context already marked by intense conflicts over land, the situation is further complicated by the fact that most of the affected populations in the countryside are traditional populations – such as indigenous, riverside and quilombo communities – whose rights as minorities are safeguarded by specific legislation (NETO, 2007). In addition, mega-projects have an even greater impact on populations with an inseparable bond to land that is considered traditional territory, even though the proper documentation supporting this status may not yet exist. This sphere, therefore, includes violations of the territorial rights of traditional peoples.

3.2  Right to Health and Environment

Inevitably, all mega development projects have serious impacts on the ecosystems where they are implemented. Even though prior environmental impact studies are conducted and offsetting measures are adopted and put into practice to mitigate their effects, there is no doubt that the pollution and damage caused to the water resources and the biodiversity of the ecosystems have negative consequences on the living conditions of the residents of these regions.

In the case of mining complexes, for example, numerous health problems can be caused by the emission of pollutants into the air, as well as the contamination of soils, rivers and groundwater. In the case of hydroelectric dams, another example, the fragmentation of the landscape and the predatory exploration of natural resources lead to a deterioration in the quality of life and income of indigenous populations, the loss of biodiversity, the propagation of endemic diseases and a reduction in the quality and availability of drinking water. Complaints also reveal that numerous serious accidents are not documented, among other irregularities in the environmental licensing processes related to the activities of these industries.

The case of Belo Monte involves the examples of both mining and hydroelectric companies. Late in 2012, an alarming situation was revealed after the announcement that the largest gold mining project in Brazil, and one of the largest in the world, would be built on a stretch of the Xingu river, which will lose 80% of its water flow as a result of the implementation of the hydroelectric plant, where two indigenous lands and hundreds of riverside families are located. The project, for the extraction of minerals and storage of toxic waste, is already in the environmental licensing stage, despite the fact that the studies presented so far ignore the accumulated impact of the two projects together. This demonstrates how these impacts can be underestimated, especially when a mega-project draws other subsequent projects.

Negative impacts like these are aggravated when the affected populations do not know who to approach to solve the problems. There is a lack of information on the mechanisms of access to justice and to basic health services that can monitor and provide treatment to the affected populations – for example, by tracking cases of illnesses typically related to mining areas, such as cancer.

In this context, we must not lose sight of the importance of the principle of prevention as a way of avoiding serious damage to the environment or to people’s health. Access to justice should not be discussed merely in terms of compensation, after the damage, probably irreversible, has already been done. It is also worth pointing out the seriousness of this type of violation for indigenous peoples, whose cosmology is closely linked to the preservation of the environment. The degradation of the environment, in this case, is an assault on the right to life of these peoples.

Another problem derives from the indifference with which the affected populations are identified. Generally speaking, the government leaves it up to the companies to define ‘who is affected’ and deal with the resulting compensation claims. As the MAB has been defending for years, a restrictive or limited definition of ‘affected population’ is one of the key factors causing human rights violations, since this ends up disqualifying certain groups that should also be considered eligible for some kind of compensation (MOVIMENTO DOS ATINGIDOS POR BARRAGENS, 2011, p. 97-99). After all, ‘affected’ includes everyone whose way of life and, more importantly, whose source of income and sustenance is affected by the planning, implementation and operation of the mega-project, namely land squatters, small traders, prospectors, fishermen and other groups whose survival depends on access to natural resources.

3.3  Right to information and participation in the decision-making process

Public participation by citizens in the monitoring, assessment and control of government acts is, unquestionably, one of the main instruments of democracy. The right to information is a basic prerequisite for the maintenance of a democratic order, without which full citizen participation and control of public policies would not be possible. According to Principle 10 of the Rio Declaration on Environment and Development (1992), the processes of development should take place in an environment conducive to freedom of expression, in which access to information is guaranteed and the affected groups have the opportunity to express their opinions, which should be considered in the decision-making processes.

Specifically in relation to indigenous peoples, the right to Free, Prior and Informed Consultation (FPIC) has been recognized in relation to the actions of the State that could affect their possessions and lands. According to Convention 169 of the International Labour Organization (ILO) on the Rights of Indigenous and Tribal Peoples, ratified by Brazil in 2002, the government must consult with indigenous peoples and seek their consent before undertaking or permitting any program for the exploration of resources on their lands. The right to FPIC involves basic requirements to ensure that the process is not merely informative, but instead a legitimate dialogue between the State and the affected populations to work towards the reconciliation of interests.

In contrast, however, what is generally seen in mega-projects in Brazil is the absence of informed public debate. According to Lisboa and Barros (2009), the instruments of participation and social control are always neglected, and the decision-making processes are ignored, giving preference to interests outside the local population. In many cases, the public hearings and consultations with indigenous communities simply do not take place or, if they do, they are only held as a formality to fulfill a requirement. According to reports of the public hearing ahead of the Candonga hydroelectric dam, in the state of Minas Gerais, the overly technical nature of the presentation created an atmosphere of hostility and intimidation, leaving little room for people to ask questions and express opinions. The silence was then conveniently used by the companies to indicate the community’s acceptance and approval of the project (BARROS; SYLVESTER, 2004).

According to a report by the non-governmental organization Terra de Direitos (2011), the processes of debate are not participative, since the information available is insufficient and does not create awareness, and it only reaches the interested parties after the relevant decision-making and planning processes have already been completed. Furthermore, the public hearings generally present what is convenient for the companies, i.e. a one sided view of ‘progress for the region’, and omit information on the true scale of the social and environmental changes.

In the consultations with indigenous communities, there is a complete disrespect for the principle of cultural adequacy, which would require translation into local languages. It is important to point out that this entire process, since it constitutes a stage of public interest, ought to be conducted by the authorities, which may not delegate the task to third-party companies, like it has been doing.

A policy of concealing information, in which decisions are made without any social control, is also present in the various cities across Brazil that are preparing to host the World Cup (ARTICULAÇÃO NACIONAL DOS COMITÊS POPULARES DA COPA, 2011). Public authorities ignore the social uproar, refusing to discuss alternatives presented by society – such as the case of the Mercado Distrital do Cruzeiro market, in the Minas Gerais state capital of Belo Horizonte, which is being threatened with demolition as a result of the World Cup construction projects, even though local residents and businessmen have presented the government, in partnership with the Brazilian Institute of Architects (IAB), with a project for its revitalization.

3.4  Violations of the human rights of defenders and activists

In various parts of Brazil, citizens who organize to defend affected communities and/or the environment have been the target of constant threats, intimidation, attacks, aggression and even killings. In most of the cases, the authorities not only fail to conduct full investigations, but they do not offer proper protection to the victims and their families. Furthermore, they stand in the way of prosecuting the perpetrators and punishing those responsible under the full extent of the law. This situation constitutes, therefore, multiple violations against the freedoms of expression and association, the right to physical integrity and the right to life, among other rights.

In Brazil, conflicts over land and natural resources every year leave dozens of fatal victims. The countless documented cases reveal the extent to which ‘development’ processes are marred by violence, with the tacit authorization of the State through impunity. One example of victims of social and environmental conflicts caused by mega infrastructure projects overseen by large companies, with the support of public funding, can be found in the case of the fishermen of Guanabara Bay, in Rio de Janeiro. Four members of the Association of Men and Women of the Sea were killed in less than four years, while countless threats have been received, and all the cases remain unsolved (CRP-RJ, 2012).

More often than not, acts of intimidation against activists are perpetrated by groups whose interests are closely linked to the mega-projects. In some cases, the repression may come from agents of the State. In the case of Belo Monte, for example, in June 2012 the civil police of the state of Pará sought the arrest of 11 people accused of taking part in protests against the construction of the dam – among the accused, in the investigation, were members of the Xingu Alive Forever Movement, a missionary priest, a nun and a documentary filmmaker from São Paulo.

Considering the weakness of the State to protect defenders and activists against violent actions by groups whose interests are threatened, there have been calls to create a legal framework in the country that effectively guarantees the protection of these people. One such bill is pending in Congress to enact the federal government’s Program for the Protection of Human Rights Defenders. This aims to overcome the barriers of lack of resources and difficulties dealing with state-level governments, among other problems, such as the slow analysis of requests.

There is a concern that violence against human rights defenders is encouraged by the existence of a process to criminalize and make these people invisible, which views them as ‘defenders of criminals’ instead of as people who provide a service for wider society and who contribute to the strengthening of democracy in the country. The few community leaders who do receive some kind of protection ask the same important question that baffles their police escorts: what is the point of providing security so community leaders can continue to expose crimes that the State does not punish?

4.  Responsibilities

In accordance with the parameters established by international law, States have the obligation to respect, protect and promote the human rights norms they have committed to in international treaties. Rules of customary law establish that any violation of these obligations, by action or omission, is the responsibility of the State. Taking responsibility implies the duties of immediately ceasing the unlawful act and redressing the damage caused, while also guaranteeing that it will not be repeated. For the purposes of international law, the administrative division of a country into States is irrelevant, since the duties fall on the federal government, which should function as a guarantor of respect for human rights at all levels.

In Brazil’s domestic legal system, the civil responsibility of the State corresponds to the obligation of the government to make reparation for damage caused to third parties by its agents during the performance of their duties. Public agents are broadly considered to include not only elected officials and public servants, but also private individuals working in collaboration with the State, such as public companies and foundations, and private companies operating public service concessions. Brazilian jurisprudence has also determined, according to the principle of isonomy, that the duty to redress or compensate exists even when the damage was caused by a lawful act, provided that the damage is considered serious. The doctrine of objective responsibility dispenses with the need to prove fault, and requires just three elements: State action, damage and a causal link. It is, therefore, the defense mechanism that individuals and groups have before the State, i.e. how citizens assure that reparation is made for any of their rights that have been violated by public action.

Even though it can be difficult to quantify all the damage caused as a result of violations by mega-projects and, consequently, the establishment of adequate compensation for all the affected people, it is essential that this is done. The process involves not only identifying all the individuals, families and groups that could have been directly or indirectly affected, but also calculating and paying reparations for the material and moral damage suffered.

Although compensation does not always have to be strictly financial, the costs of compensation should be incorporated into the price of the project. If this were done, the costs of a project like Belo Monte could turn out to be simply unaffordable or so exorbitant as to be unjustifiable given the profit it would generate. In general, these costs are overlooked because everyone knows that, at the end of the day, they will never be paid. The anticipation of the impacts together with adequate compensation would finally prevent these violations from happening.

It is the responsibility of the Brazilian State, therefore, not only to respect the human rights norms established in the Constitution and in international treaties, but also to make private agents respect them. This is a key point, since a strong link has developed between large corporations and national governments, through which the authorities become accomplices in the abuses committed by businesses. Furthermore, in many cases, the abuses are committed by state-run companies and/or by companies financed by public institutions, such as the Brazilian Development Bank (BNDES) or the Banco do Brasil. On this matter, De Paula points out:

Big contractors play a significant role in political strategy today. Several projects implemented over the past 10 years have prominently featured four construction giants: Andrade Gutierrez, Camargo Corrêa, Odebrecht and Queiroz Galvão. From World Cup stadiums to the construction of the Belo Monte hydroelectric dam, on the Xingu river, these ‘four sisters’ are major recipients of public investments. […] According to a study by American researchers on the relationship between government contracts and campaign donations, for each R$1 donated by contactors to political campaigns, R$8.5 is received in the form of projects.
(DE PAULA, 2012, p. 102).

Concerning non-state actors more specifically, there is already a consensus that companies should at least comply with the observance of human rights norms, i.e. they should respect these rules and not violate them (RUGGIE, 2011). The notion of ‘corporate social responsibility’, for example, expresses the idea that companies should be committed to the well-being of the populations impacted by their operations. The emergence of a broad ethical and normative consensus on this matter is reflected not only on a domestic level, but also internationally.

It must be pointed out, however, that companies may start to exploit these mechanisms as ‘false solutions’, i.e. use them strategically only to improve or clean-up their image and, in doing so, conceal the real impact of their operations. Although Brazil has instruments, particularly in the civil and administrative spheres, but not in the criminal sphere, to hold companies accountable for human rights abuses, there are still barriers in the way of access to justice and affective remedies (COMISSÃO INTERNACIONAL DE JURISTAS, 2011).

Additional complications in the assignment of responsibilities arise from the fact that most mega development projects in Brazil and elsewhere in the world also involve the participation of other actors that may be transnational. This is the case, for example, of projects financed by international organisms such as the World Bank, or projects that have to observe rules imposed by international organizations such as the International Federation of Association Football (FIFA) or the International Olympic Committee (IOC). It becomes difficult, in these cases, to assign the proper responsibilities to each of the actors, especially because there are no international organisms with unified mandates to operate in this way.

Nevertheless, some innovations have emerged over the past decade. One is the World Bank’s Inspection Panel, an independent administrative mechanism that victims of projects financed by the bank can use to seek reparation for any damages they have suffered. Another example are the lawsuits in the United States, in which the Alien Tort Statute (ATS) was invoked before the country’s Supreme Court to demand that companies be held accountable for human rights violations committed in other countries.

It must be admitted that this is a rather recent discussion, and there are still many issues and uncertainties over how to deal with the accountability, on various levels, of all the transnational actors involved. The State, however, remains the primary actor in its obligation to ensure the observance of human rights in its jurisdiction.

The question remains, then, of how to enforce the guarantees of law. The sluggishness of the legal system in Brazil and the inefficiency with which it has dealt with these types of cases, together with the position that the Brazilian government has taken before international bodies, makes for a fairly hopeless scenario. This is why it is essential that, in cases of violations by mega development projects, the discussion should not be limited to responsibilities over compensation – even though this is an extremely important aspect of the debate, since most of the affected populations in the past have never received any type of compensation for damages suffered. From a perspective of future planning, however, the discussion needs to be expanded to include the crucial aspects of prevention. In other words, how to develop and promote a model of development that does the most to minimize the potential for violations? How to develop of model of development that genuinely serves the interests of human rights?

5.  Final Considerations

If the slogan of the current Brazilian government – “Brazil, a rich country is a country without poverty” – really does convey its commitment, then it should be possible to reconcile the development goals of the government with those of human rights defenders. If they do indeed share the goal of ending poverty and building a more inclusive, prosperous and fair society, then they should also be interested in working together more closely. This is because the role of human rights defenders is not only to denounce violations and embarrass the authorities, but primarily to provide information and guidance for the decision-making processes. There is, therefore, a window of opportunity for dialogue that must not be wasted.

The so-called “human rights approach to development” represents the application of the complementary nature of human rights as the means and ends of development. This approach integrates norms, standards and principles of the international human rights system into local development plans, policies and processes. The law confers legal status to the processes of development that should, then, be guided by the principles of participation, empowerment, transparency and non-discrimination (ROBINSON, 2005). The main merit of the human rights approach lies precisely in the attention it draws to discrimination and exclusion. A refusal to let macro-scale gains and results be inadvertently based on violations of the rights of those people who do not benefit from these projects.

On this point, there is a positive answer to the initial question posed by Wamala (2002). Yes, it is possible to reconcile economic and social development with the realization of individual and collective rights and freedoms. This convergence is established in the very concept of “human development”, according to which development is seen as a process of expansion of an individual’s opportunities to choose, so they can have access knowledge and resources, and therefore lead a healthier life (PROGRAMA DAS NAÇÕES UNIDAS PARA O DESENVOLVIMENTO, 2000). The idea that development should serve the interests of human rights, in that there can be no development without respect for these rights, has become increasingly more widespread and has even been incorporated into the rhetoric of the authorities. In practice, however, there is still a long way to go before it can be implemented.

What this article proposed to do was demonstrate that the current development model in place in Brazil has not necessarily freed Brazilians from poverty, but instead accentuated the inequalities and aggravated the situation faced by historically marginalized groups. It has shown that Brazil does not guarantee all the principles that should govern the processes of development, namely participation, empowerment, transparency and non-discrimination. The development model adopted in Brazil today is not liberating and it does not promote the expansion of opportunities and capabilities for individuals and their communities. The choice made by Brazil is a catalyst of social and environmental conflicts and really only benefits a few privileged groups.

The time is ripe for Brazilian society to broadly discuss alternatives and critically demand from the authorities a model of development that truly benefits all Brazilians. Human rights, in this context, serve as a parameter. Statistics offer good numerical indicators – on housing, income etc. – and they are useful for measuring inequalities. But mere statistics do not account for non-material aspects and, as a result, they do not convey what is most important. That is, the humiliation and loss of dignity suffered by those who are excluded from development. Human rights, therefore, must serve as fundamental criteria for the planning of public policies and the assessment of their potential results.