Out for the money: a legal analysis of economic claims for secession in Brazil

Abstract

To a part of Brazil’s southern and south-eastern population, the 2014 presidential election was about two irreconcilable projects for the country. To them, the victory of the Workers Party contender meant the unacceptable maintenance of the current economic policy and distribution of state's benefits. In response to this outcome, they publicly called for the secession of the south and south-east regions. Even though not a new phenomenon in Brazil, the current calls for secession are made under a distinct international legal scenario. The rise of self-determination as a right could serve as a legal basis for such claims. By looking at said right, the present article endeavours to establish the legal validity of the current calls for secession coming from south and south-east Brazil. After demonstrating that these claims are economic in nature, the present work demonstrates that those from the south and south-east seeking secession cannot be classified as a people and, therefore, could not legitimately claim such right. Even if peoplehood was present in the equation, the work further concludes that the current governmental policy directed at distributing benefits to disadvantaged sections of society via taxation cannot be considered to reach a threshold of harm that would legitimise secession through the saving clause of UN Resolution 25/2625. The authors suggest that secessionists abandon their false discourse of colonial liberation and their prejudiced views based on racist stereotypes of other regions of the country, which could only be detrimental to the social cohesion of Brazil. To pursue their goals, be they legitimate or not, secessionists are advised to make use of participatory tools that could provide for the same results achieved via the right to self-determination, except for secession.

Keywords:

• secession
• self-determination
• Brazil
• peoples
• international law

Acknowledgements

The views expressed in this article are those of the authors and do not necessarily represent the views of, and should not be attributed to, their employers.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Alexandre Andrade Sampaio is a Brazilian lawyer and holds an LLM (first class honours) in International Human Rights Law from the Irish Centre for Human Rights, National University of Ireland—Galway and an MSc in Human Rights from the London School of Economics (Chevening Scholar). He works at the International Accountability Project as Policy and Programs Coordinator. Previously he contributed to the work of the Special Procedures Branch of the United Nations Office of the High Commissioner for Human Rights and the Center for Justice and International Law. He has also been a Programme Officer of Article 19 South America and a human rights attorney at the Interamerican Association for Environmental Defense.

Luís Renato Vedovato is a Brazilian international law professor at State University of Campinas (Brazil), Universidade Nove de Julho (Brazil) and Pontifícia Universidade Católica de Campinas (Brazil) and holds a PhD in International Law from the University of São Paulo School of Law. His research is concentrated in human rights and migration law.

Notes

† Luís Renato Vedovato is no longer with Universidade Nove de Julho.

‡ This paper was submitted for publication before the impeachment process in Brazil started.

1. National Anthem of Brazil in Brazil, Decree n. 15.671 (6 September 1922).

2. Economist Constantino siding with separatists that gained prominence after the 2014 presidential elections of Brazil. See Rodrigo Constantino, Não é hora de união, e sim de oposição!, Veja (27 October 2014), http://veja.abril.com.br/blog/rodrigo-constantino/democracia/nao-e-hora-de-uniao-e-sim-de-oposicao/.

3. See ibid.

4. Folha de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país (27 October 2014, 3:37 pm), http://www1.folha.uol.com.br/poder/2014/10/1539043-coronel-telhada-critica-votos-nulos-e-defende-autonomia-dos-estados.shtml.

5. Luciana Camargo, Movimentos que pedem a separação de Sul e Sudeste do restante do país ganham força após eleições, Folha Política (27 October 2014), http://www.folhapolitica.org/2014/10/movimentos-que-pedem-separacao-de-sul-e.html.

6. See, for example, ibid.; and de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

7. See Constantino, Não é hora de união, e sim de oposição!

8. Maricélia C.M. Neves, Movimentos separatistas e a formação dos estados brasileiros, Universidade Federal Da Bahia, http://www.uesb.br/anpuhba/artigos/anpuh_II/maricelia_cardoso_matos_neves.pdf.

9. Ibid.

10. It should be noted that it falls outside the scope of the present article to provide a comprehensive list of the history and motives of other secessionist movements that occurred or are still occurring in Brazil. For a more detailed account on some of those movements, see ibid.

11. The Federal Prosecutor's Office received more than 1000 complaints of discrimination against the north and north-east population after the elections. Among them there were public calls for the mass murder of north-easterners, who were constantly referred to as ignorant, stupid and beggars. See Wilson Lima, PGR recebeu mais de 1,2 mil denúncias de discriminação desde a eleição, Último Segundo (6 November 2014), http://ultimosegundo.ig.com.br/politica/2014-11-06/pgr-recebeu-mais-de-12-mil-denuncias-de-discriminacao-desde-a-eleicao.html.

12. See section II.

13. See United Nations, Charter of the United Nations, article 1 (24 October 1945).

14. See article 1 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); and article 1 of the International Covenant on Economic, Social and Cultural Rights (adopted 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).

15. See Constantino, Não é hora de união, e sim de oposição!

16. Ibid.

17. See Benito Giordano, ‘Italian Regionalism or “Padanian” Nationalism – The Political Project of the Lega Nord in Italian Politics’, Political Geography 19, no. 4 (2000), §§ 3.1.1–3.1.2.

18. See ibid., §§ 2 and 3.1.1.

19. See ibid., § 3.1.2.

20. See, for example, Camargo, Movimentos que pedem a separação de Sul e Sudeste; and de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

21. See de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

22. RICAM consultoria in Camargo, Movimentos que pedem a separação de Sul e Sudeste.

23. See, for example, ibid.; and de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

24. See note 15 and accompanying text.

25. See de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

26. See case concerning the frontier dispute (Burkina Faso v. Republic of Mali), ICJ, paras 20–3 (22 December 1986). For exceptions to the rule, none of which applied to Brazil at the time of decolonisation as the state did not consent on the separation of parts of its territory and there was no threat to peace and security, see Malcolm N. Shaw, ‘Peoples, Territorialism and Boundaries’, European Journal of International Law 3 (1997): 493. It should also be noticed that these exceptions mentioned by Shaw seem to be largely based on the principles and purposes of the UN charter, which at the time of Brazilian decolonisation did not exist.

27. See, for example, Shaw, ‘Peoples, Territorialism and Boundaries’, 484. Hannum complements the definition by clarifying that classic colonialism was exercised exclusively by European metropolitan states. See Hurst Hannum, ‘Rethinking Self-determination’, Virginia Journal of International Law 34 (1993–1994): 32.

28. See Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), 44.

29. See requisites of military occupation under international humanitarian law at article 42 of the Hague Regulations concerning the Laws and Customs of War on Land (18 October 1907).

30. See Brazilian Const., art. 18.

31. See, for example, Christian Tomuschat, ‘Self-determination in a Post-colonial World’, in Modern Law of Self Determination, ed. Christian Tomuschat (Dordrecht: Martinus Nijhoff Publishers, 1993), 8–11; Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, Cornell International Law Journal 35 (2002): 333; and Alexandra Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-determination, ed. Nazila Ghanea and Alexandra Xanthaki (Leiden: Martinus Nijhoff Publishers, 2005), 23–4. For more on secession see section IV.

32. See note 25 and accompanying text.

33. Giordano, ‘Italian Regionalism or “Padanian” Nationalism’, § 3.1.1.

34. See ibid., §§ 1 and 3.1.1.

35. de São Paulo, Coronel Telhada fala em separar Sul e Suldeste do resto do país.

36. Constantino, Não é hora de união, e sim de oposição!

37. See, for example, Final Report of the United Nations Educational, Scientific and Cultural Organization (UNESCO), International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, para. 5 (27–30 November 1989); and Kathleen McVay, ‘Self-determination in New Contexts: The Self-determination of Refugees and Forced Migrants in International Law’, Merkourios 28, no. 75 (2012): 37 and 43.

38. For a historical account of a time when the application of self-determination beyond colonialism was contested especially by Western states, see Cassese, Self-determination of Peoples, Chapter 3.

39. See, for example, United Nations, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625 (24 October 1970) (UN Resolution 25/2625).

40. See, for example, International Labor Organization, Convention Concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989).

41. See Human Rights Committee, General Comment 12, Article 1 (Twenty-First Session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 12 (1994), para. 1. For a brief account on the progress of the interpretation on how self-determination can be enjoyed, see Vinodh Jaichand and Alexandre A. Sampaio, ‘Dam and be Damned: The Adverse Impacts of Belo Monte on Indigenous Peoples in Brazil’, Human Rights Quarterly 35 (2013): 420–1.

42. See common article 1(1) to the ICCPR and ICESCR. Emphasis added.

43. See Cassese, Self-determination of Peoples, 54.

44. See Hannum, ‘Rethinking Self-determination’, 35.

45. See case Raposa Serra do Sol v. União, Supremo Tribunal Federal (Brazil), Petição n. 3.388–4, Relator: Carlos Britto, paras 5–7 (19 March 2009).

46. See Jaichand and Sampaio, ‘Dam and be Damned’, 417–22.

47. See ibid., 417–26.

48. See ibid.

49. Brazil ratified the ICCPR and ICESCR on 24 January 1992.

50. Brazil ratified ILO Convention 169 on 25 July 2002.

51. See article 27 of Vienna Convention on the Law of Treaties, UN Doc. A/ CONF.39/27 (23 May 1969).

52. See Jaichand and Sampaio, ‘Dam and be Damned’, 419–21.

53. See, for example, Hannum, ‘Rethinking Self-determination’, 36–7; McVay, ‘Self-determination in New Contexts’, 37; and UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, 7–8 (27–30 November 1989).

54. See Cassese, Self-determination of Peoples, 51–2.

55. See, for example, McVay, ‘Self-determination in New Contexts’, 39; and Hannum, ‘Rethinking Self-determination’, 3–37.

56. See McVay, ‘Self-determination in New Contexts’, 39.

57. See ibid., 41.

58. See Comisión Interamericana de Derechos Humanos, Pueblos indígenas en aislamiento voluntario y contacto inicial en las Américas: recomendaciones para el pleno respeto a sus derechos humanos, para. 22 (30 December 2013).

59. See UNESCO, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples. The International Commission of Jurists identified the same characteristics as relevant. See International Commission of Jurists, East Pakistan Staff Study (1972), 49.

60. The manner in which Gilbert subdivides indigenous cultural rights supports that statement. See Jérémie Gilbert, Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors Ardsley, NY: Brill, 2006), 116–17.

61. See Thomas H. Eriksen and Finn S. Nielsen, A History of Anthropology (Pluto, 2001), 266. Note that according to this definition a group formed on the basis of a national identity can also classify as an ethnical one. See Thomas D. Musgrave, Self-determination and National Minorities (Oxford, 1997), 61. It is relevant to remember that most identities are not mutually exclusive. See Bertrand Bandie, International Encyclopedia of Political Science (Thousand Oaks, CA: Sage, 2011), 1137.

62. See, for example, the cultural connection of indigenous and tribal peoples with their lands as clarified by article 13 of ILO Convention 169.

63. This seems to provide a possible answer to Tomuschat's query as to the reason why some groups are not considered peoples even though they should be according to all ethnic criteria. See Tomuschat, ‘Self-determination in a Post-colonial World’, 16. According to the present analysis, the ethnic distinctiveness without its dependence on a territorial connection is not sufficient to classify those groups as peoples in the eyes of international law as it currently stands.

64. Friedlander's definition of people seems to go in this direction. See Robert A. Friedlander, ‘Proposed Criteria for Testing the Validity of Self-determination as it Applies to Dissatisfied Minorities’, Chitty's Law Journal 25 (1997): 335–6. For a criticism regarding the fact that a definition of peoples on ethnical characteristics would amount to the application of the human right in a discriminatory manner against other individuals, see Musgrave, Self-determination and National Minorities, 154–67. It is submitted here that the fact that a right is directed at a specific group does not necessarily amount to discrimination. See, for instance, article 27 of the ICCPR, which applies solely to individuals belonging to ethnic, linguistic and religious minorities.

65. Eriksen and Nielsen, A History of Anthropology, 266.

66. The south region has, for example, dozens of indigenous tribes. See De olho nas terras indígenas: Sul. Instituto Socioambiental, http://ti.socioambiental.org/pt-br/#!/pt-br/regiao/21.

67. As can be read from the works of Mudarás and Neves, the geopolitical regions of Brazil were established in accordance with what was regarded as best for the economy and for the administration of the country, and not due to any ethnical singularity of the population. See Neves, Movimentos separatistas e a formação dos estados brasileiros; and Jones Mudarás, A geopolítica e a formação territorial do sul do Brasil, Universidade Federal do Rio Grande do Sul (2008), http://www.lume.ufrgs.br/bitstream/handle/10183/15718/000682253.pdf?sequence=1.

68. On the fluidity of ethnicity, see note 56 and accompanying text.

69. While mentioning the cases of Kashmiris, Basque, Tamils and others, Castellino highlights how subjective and politicised the recognition of a group as a people is. See Joshua Castellino, ‘International Law and Self-determination: Peoples, Indigenous Peoples and Minorities’, in Self-determination and Secession in International Law, ed. Christian Walter et al., Oxford Scholarship Online, 33 (August 2014).

70. See Xanthaki, ‘The Right to Self-Determination’, 141–4.

71. UN Resolution 25/2625.

72. Cassese, Self-determination of Peoples, 119.

73. Ibid., 114. The author equates colour to race.

74. See ibid.

75. See section III. Cassese also has a narrow view of the external aspect of self-determination, equating it to secession. See Cassese, Self-determination of Peoples, 114. The fact that this interpretation is mistaken has been addressed in the previous section.

76. To that effect, see, for example, United Nations, Declaration on the Granting of Independence to Colonial Countries and Peoples. Adopted by General Assembly Resolution 1514 (XV), para. 6 (14 December 1960). See also United Nations, Charter of the United Nations, article 2(4) (24 October 1945).

77. Cassese, Self-determination of Peoples, 119. Supporting this point of view, see, for example, Gilbert, Indigenous Peoples’ Land Rights Under International Law, 307–9; and Jaichand and Sampaio, ‘Dam and be Damned’, 421. The opinions reached by the Badinter Committee also seem to be in agreement with Cassese's opinion. See opinions 1(d) and 2(b) and (c) of Badinter Arbitration Committee in the appendix in Alain Pellet, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for Self-determination of Peoples’, European Journal of International Law 3 (1992): 179. Radan states that even though the committee asserted it was dealing with a case of state dissolution, it was in fact dealing with secession. See Peter Radan, ‘Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission’, Melbourne University Law Review 24, no. 1 (2000): 50, § III (a).

78. See Hurst Hannum, ‘The Specter of Secession: Responding to Claims for Ethnic Self-determination’, Foreign Affairs 77, no. 2 (March–April, 1998): 16–17. Note that art. 11 of Brazilian National Security Law prohibits any attempt to dismember a part of the national territory, irrespective of the motives. See Law n. 7.170 (14 December 1983). As is clear, if the motives behind such an attempt complied with the threshold established by the saving clause, the utilisation of the National Security Law to criminalise those seeking independence would amount to a further violation of their rights.

79. See Glauco Lara et al., Mapa das diferenças (2° turno), Estadão (2014), http://infograficos.estadao.com.br/public/politica/resultado-eleicoes-2014/.

80. See Cassese, Self-determination of Peoples, 113.

81. Peters points to the fact that as ‘the establishment of states has been the single most important historical achievement leading to a relative decrease of interpersonal violence and bloodshed, it is justified to privilege the territorial status quo as a plausible contribution to secure human flourishing’. Anne Peters, ‘The Principle of Uti Possidetis Juris: How Relevant is it for Issues of Secession?’, in ed. Walter et al., Self-determination and Secession in International Law , 116.

82. See ibid.

83. See Hannum, ‘The Specter of Secession’, 16–17.

84. Bagenda refers to the possibility of that claim. See Emmanuel E. Bagenda, ‘A Human Rights Approach to Taxation: Some Brief Comments’, Quarterly Newsletter of The Justice Tax Network 2 (2011): 3.

85. See explanation of state benefit ‘Bolsa Família’ in Bolsa Família. Ministério do Desenvolvimento Social e Combate à Fome, http://www.mds.gov.br/bolsafamilia.

86. See ibid. Currency conversion based on Brazilian Central Bank quotation as of 7 May 2015.

87. On duties of individuals to their community as a part of the human rights framework, see, for example, Organization of American States, American Convention on Human Rights, article 32 (22 November 1969). The convention was ratified by Brazil on 7 September 1992.

88. Julio P.F.H. de Siqueira, Mínimo existencial e o dever de pagar tributos, ou financiando os direitos fundamentais, 1 Revista da Academia Brasileira de Direito Constitucional, 117 (August–December 2009).

89. Edmar Bacha, O economista e o rei da Belíndia: uma fábula para tecnocratas, Jornal Opinião, s/e (1974).

90. See Hannum, ‘The Specter of Secession’, 16.

91. See Antonello Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’, in Secession: International Law Perspectives, ed. Marcelo G. Kohen (New York: Cambridge University Press, 2006), 189–90.

92. See Brazilian Const. Chapters III and IV.

93. On the participatory process of OGP, see Open Government Partnership, ‘Civil Society Dialogue’, http://www.opengovpartnership.org/how-it-works/civil-society-dialogue. In September 2011 Brazil co-founded OGP.

94. On the participatory process of the national conferences, see Secretaria-Geral da Presidência da República, Conferências Nacionais, http://www.secretariageral.gov.br/participacao-social/conferencias.

95. See Giordano, ‘Italian Regionalism or “Padanian”’.