Research Program on Law and the Environment - (PDMA)
  • Date submitted: 1 Nov 2011
  • Stakeholder type: Major Group
  • Name: Research Program on Law and the Environment - (PDMA)
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The recommendations in this document are the result of preparatory meetings and online public consultations conducted and organized by the Research Program on Law and the Environment - (PDMA) at Getulio Vargas Foundation School of Law in Rio de Janeiro (FGV DIREITO RIO). These initiatives include: the Rio+20 International Preparatory Meeting, held on 24 and 25 June 2011. This preparatory meeting was entitled: ?Green Economy in the Context of Sustainable Development: Governance of Public and Private Stakeholders", and resulted in a book compiled by Carina Costa de Oliveira and Rômulo S. R. Sampaio. Two other initiatives included: the Online Forum for Sustainability regarding Rio+20 (, which received contributions from around the world debating issues relating to governance and green economy divided in 70 topics. Lastly, it is worth mentioning PDMA?s participation in The Access Initiative - a network of nongovernmental organizations that works with the implementation of Principle 10 of Agenda 21 designed to address the issues of access to information and public participation.

Several partnerships were crucial to organizing those initiatives and continue to be important as we get closer to the official debates during the Rio+20. The organizations participating with PDMA in these endeavors are: Centre International de Droit Comparé de l?Environnement, Pace University and Brazilian American Institute for Law and the Environmental (BAILE), the The Acess Initiative, Núcleo de Estudos e Pesquisas do Senado Federal Consultoria do Senado, Escola da Magistratura do Estado do Rio de Janeiro, Academia Paranaense de Direito Ambiental, Ministério Público da União, PUC-Goiás, Universidade Católica de Brasília, Uniceub, Universidade Federal do Pará, IEDC - Instituto Estudos Direito e Cidadania, Mackenzie-SP, Prefeitura do Rio, CEDA, NKF Advogados, Tribuna Animal, CEDAM, FEMPERJ, PUC-São Paulo, IBRADA, and Universidade Estadual do Amazonas. In addition, professors, researchers, and professionals, who are not part of the above mentioned institutions above mentioned, participated in the development of the set of proposals. They are all cited at the end of this document.

Some recommendations are made on the general topics of the conference based on the following major subjects: 1) Definitions, 2) Sustainable Trade and Investments, 3) National and International Governance, 4) National Institutional Framework for Sustainable Development, 5) International Institutional Framework for Sustainable Development. In each topic recommendations are divided in of national and international scope.



a) Important aspects for Green Economy concept

1) The need for internalization of social and environmental negative externalities. Policies promoting internalization of negative externalities include, but are not limited to, building reliable methodologies for natural resources valuation and working with tax incentives to encourage sustainable practices (PDMA).

2) Defining social goals and creating objective criteria to achieve them within the context of a "green economy". These goals include: job expansion, consumption decline, promoting more sustainable and housing guarantees. Relevant policies would promote sustainable public expenditure, enable green regulation and encourage public investment in priority areas (PDMA).

3) In relation to green economy, it is observed that the more this analysis is divided into sectors, the easier policies that could encourage the construction of ?green? perspective can be identified. Each specific area, such as construction, tourism, biodiversity, energy, cities, enjoys its own set of peculiarities. The concept of green economy could be taken from the sustainable progress of each economic sector (PDMA).

4) "There should be an environmental concern on the macroeconomic policy design. The decisions related to interest rate, trade balance and the adjustments to be made in the trade balance are used to induce the production / import / export of certain products. Each of these products contributes differently to maintain an ecologically balanced environment. So we must be concerned with the regulation of microeconomic aspects such as the internalization of externalities through tax incentives or parafiscal taxes, but also, and perhaps with even greater force, we should be concerned with the macroeconomic aspects of regulation as the establishment of mandatory parameters that prevent the adoption of macroeconomic policies potentially harmful to the environment "(Arivaldo de Souza).

b) Important aspects for sustainable development concept

1) Identifying general criteria for sustainability from a definition given by each country. Each country can send to the UN Secretariat for the Rio+20 its definition of sustainable development. This proposal stems from disparities between economic, social and environmental development of each state. Each one must identify how it can contribute to the present and the future of those from the following generations.

2) Opinion on the relevance of the concept of each State:

"A concept is an abstraction that is used to intellectualize a complex issue. Thus, it is possible to explain the complexity of reality that becomes more accessible. However, the risk that comes with the use of a concept is the simplifying and trivializing of it. It can be regarded as the perfect mirror of reality. It is a methodological and scientific error. Many times the same happens to the concept of sustainable development. People who work on this issue want to universalize and standardize the concept. As a result, they destroy the content of sustainable development. The principles of sustainable development must be implemented by each state. Each State has its own level of development, its economies and its society. Therefore, they are different and have neither the same goals, nor the same means to accomplish their goals. Environmental considerations, for instance, do not have the same value in each state. In this sense, what is sustainable development for a State is not necessarily the same thing to another State. So in this sense, it is not useful to have a single definition of the concept of sustainable development. In practice, every State knows its needs within its development. Thus, it can decide its policies according to its reality. Finally, it is useful to emphasize a last point. The final receptors of development and sustainable development theories ? humans - are sometimes forgotten and neglected by those working on these issues. Their realities are so complex, so different that it is difficult to understand how a theory of sustainable development can be created without some practical studies. Moreover, these theories are often built in offices, in few hours. This is one reason why sustainable development has little practical effect "(Nitish Monebhurrun).

3) Opinion on the debate:

"Ultimately, Planet Earth is bearing the benefits or the burden of how effective a theory of sustainable development is built?. The Planet?s environment must be balanced in order to provide for a harmonized relationship between humans and other creatures that, combined, form the biota. That is the question of sustainable development. Furthermore, sustainable development is a political concept which aims to establish the grounds for dialogue between different stakeholders. The answer for sustainable development is "Shall we all talk? What are the terms? The question that may be asked is what are the parameters to developing each political entity and what are the parameters of sustainability?" (Arivaldo de Souza).

2) Investments and Sustainable Trade

a) Forests

International Recommendations

1) Adopting a treaty dealing with forests (Luciane Martins de Araújo).

2) Increasing the input of financial resources in order to provide for the recognition and payments for environmental services, using the Global Environmental Facility as a model. (Luciane Martins de Araújo).

3) Strengthening and harmonizing existing environmental certifications (José Antônio Tietzzman Silva).

4) Including recommendations for environmental damage under the Human Rights Council and UN Councils or Commissions of the Regional System of Protection of Human Rights (José Antônio Tietzzman Silva).

National Recommendations

1) Implementing monitoring mechanisms and instruments through voluntary and coercive measures. (Fernando Meneguin).

2) Implementing policies and measures to combat deforestation (Fernando Meneguin).

3) Implementing state incentives for environmental preservation, and opining up the process for public and private participation (Fernando Meneguin).


4) Use annual fluctuations in the opportunity costs in forested areas, rather than carbon stocks (Virgílio Gibbon).

5) Unifying the credit registries of all the states into a single registry office to avoid double valuations of credits on the national level (Virgílio Gibbon).

6) The need to incorporate the concept of opportunity cost in the search for solutions to the issue of native forests deforestation (Virgílio Gibbon).

7) Establishing a REDD+ regime demands that the rights and duties are clear not only in national but also in international levels (PDMA).

8) Local participation and transparent processes of defining access to benefits and allocation of REDD+ resources are crucial for guaranteeing effective governance (PDMA).

b) Renewable energy

International Recommendations

1) Specifically, a framework convention on renewable energy could include: a)Establishing a renewable energy list classified according to economic criteria (cost of production, levels of energy demand, the necessary resources for its production, levels of importation, exportation, capacity to create jobs, etc) and environmental (rate of substitution of fossil fuels, environmental impact, carbon balance of the production process, etc.) (Meryem Deffairi).

b)Establishing a binding target, "a minimum" of renewable energy in 10 years for developed countries and in 15 or 20 years for developing countries (obligation of result, leaving the states free of the means used to achieve this) and finally integrate the planning requirements for each state. (Meryem Deffairi).

c)Providing a mechanism for financial sanctions applicable in 10 years, and every five years, depending on the level of renewable energy in each state, by paying a fine to an independent international institution responsible for "re-injection" of funds in development projects of technology for renewable energy production. (Meryem Deffairi).

2) Instead of discussing a new institutional framework, we should question the function and capacity of action undertaken by the International Agency for Renewable Energy established in January 2009 (IRENA (Priscila Pereira de Andrade).

National Recommendations

1) States should be Memberships in the International Agency for Renewable Energy established in January 2009 (IRENA - (Priscila Pereira de Andrade).

2) Regulating ethanol in Brazil - implement the Regulation on Conformity Assessment for Ethanol Fuel, signed by Brazil, the purpose of which is to define criteria for evaluating the intrinsic properties of ethanol, considering established technical standards, and assessing social and environmental requirements applicable to the production process, based on labor and environmental laws in Brazil and abroad (PDMA).

3) Adopting government policies to encourage transition from energy sources based on fossil fuels to renewable energies (Luciane Martins de Araújo).

4) Implementing, through local government, legislation and regulations that promote the use of renewable energy (Luciane Martins de Araújo).

5) Giving preferences in the process of granting intellectual property rights to renewable energies that would favor developing countries (Luciane Martins de Araújo).

6) Facilitating the acquisition of patents, given the need for investment in renewable energies precipitated by recent weather events (Luciane Martins de Araújo).

7) Reducing tariffs and establish subsidies in order to implement technologies used to produce renewable energies as well as to reduce their cost and increase production (Luciane Martins de Araújo).

8) Promoting public policies aimed at reducing consumption in order to reduce consumer power demand (Luciane Martins de Araújo).

c) Biodiversity and compensation mechanisms

International Recommendations

1) Producing a judicially manageable definition of biodiversity and give it legal standing in the international arena (Jessica Makowiak).

2) Creating international compensation mechanisms for loss of biodiversity and their criteria (Jessica Makowiak).

3) Bolstering the notion of compensation with recognized principles of international and environmental law (the precautionary principle, "polluter-pays" principle). Such relief or compensation may also be injunctive (Jessica Makowiak).

4) Ranking priorities in order of the intensity of the threat to biodiversity, the possibility of preventing loses, and of compensation. (Jessica Makowiak).

5) Limiting compensation actions where projects do not cause major or irreversible reduction of biodiversity (Jessica Makowiak).

6) Defining, classifying and prioritizing compensation arrangements in the context of biodiversity (Jessica Makowiak).

7) Providing in the texts of such laws or agreements means of compensation and provisions for monitoring, surveillance and control (Jessica Makowiak).

8) Imposing sanctions for instances of noncompliance with measures for monitoring and their effects (Jessica Makowiak).

9) Accessing compensation practices at the institutional level (which actors are appointed to decide, implement and monitor compensation measures) (Jessica Makowiak).

10) Identifying means of channeling economic resources allocated to biodiversity conservation towards biodiversity-rich developing states (Luiz Gustavo Bezerra).

d) Green Private Contracts

International Recommendations

1) Promoting the Inclusion of social-environmental clauses and prohibit "stabilization" clauses in order to enable the adoption of standards in the area of private law for human and environmental rights ratified after the signing of agreements (Sílvia Pinheiro).

e) Technology Transfers

International Recommendations

1) Promoting funding mechanisms for the acquisition of clean technology in developing countries (Renata Calsing, Maria Marinho and Carlos Henrique Rubens Tomé Silva).

2) Establishing a fund that allows the purchase of clean technologies considered relevant to environmental protection (Renata Calsing and Maria Marinho).

3) Recognizing the need to stimulate the creation of collaborative platforms for clean technology licenses (Renata Calsing and Maria Marinho).

4) Promoting discussion on the adaptability of a mandatory license allowing access to clean technologies and discuss other mechanisms of transfer (if the invention improves upon existing technology or reduces production costs, the company holding the license will exercise its exclusive right in order to differentiate itself in the market. Therefore, the incentive to transfer technology through licensing will only be effective if states establish mechanisms to compensate the private sector holder or co-holder of protected technologies that impact environmental protection) (Renata Calsing and Maria Marinho).

f) National and international trade systems

1) Investing U.S. bonds certificates that comprise the international reserves of BRICS members (Brazil, Russia, India, China and South Africa) in funds managed by the shareholders (Virgílio Gibbon).

2) Developing rules for the Investment Fund regarding the possibility of issuing a ?Green Currency? up to value of its assets. The Green Money shall only be applied to actions or funding of sustainable projects of countries that agree to be beneficiaries of the Fund (Virgílio Gibbon).

3) Accede to a Shareholders Agreement that accords the Green Currency the same treatment given to the U.S. dollar today. In other words, it is computed as international reserve and gives rise to the issuance of corresponding domestic currency (Virgílio Gibbon).

4) Adopting social and environmental indicators on the stock market. Examples: Domini 400 Social Index (DSI), Dow Jones Sustainable Index (PDMA).

g) Sustainable Production

1) Creating a coordinated consumer products policy based on the evaluation of the environmental impact of products throughout their life cycle. Fostering discussion between the public and private sectors on the subject of producing more effective measures and lowering costs (PDMA).

2) Promoting the idea of corporate social responsibility throughout the entire production cycle, including: local communities, paid employees, shareholders, business partners, suppliers, consumers, and public authorities (PDMA).

3) Sustainable financing - direct funding for specific areas: such funding would benefit some communities or disadvantaged municipalities by granting loans through local development banks in deposits, with rates equal to or below the market price (PDMA).

h) Sustainable Consumption

1) Responsibility of individuals and companies for their sustainable consumption (PDMA).

2) Consumer protection against misleading advertising by companies through notices that detail environmental protection or certifications related to Corporate Social Responsibility in their Codes of Conduct (PDMA).

3) Creationing a website specializing in the exchange of information and tips on environmentally friendly products and companies (NKLF Lawyers Association).

i) Sustainable Construction

International Recommendations

1) Adopting of a statement of principles for sustainable construction at the Rio +20 Conference (Luiz Gustavo Bezerra).

National recommendations

1) Creating financial incentives (benefits and tax exemptions) for sustainable products and technologies to be used in construction (Luiz Gustavo Bezerra).

2) Creating a government website for the commercialization of sustainable technologies and products (Luiz Gustavo Bezerra).

j) Exploitation of Genetic Resources

International Recommendations

1) Ratification of the Nagoya Protocol and the Nagoya-Kuala Lumpur Protocol, ensuring the implementation of the ABS regime and the liability regime for damages in the case of transnational movement of GMOs (Solange Telles da Silva and Tarin Frota Mont?Alverne).

2) The Right to access information on biotechnology and nanotechnology (Solange Telles da Silva).

3) Requirements for independent studies on the risks and adverse effects on human health and the environment before genetically modified organisms are made available for human and animal consumption (Solange Telles da Silva).

4) Requirements for monitoring after such GMOs are made available on the market and for the publication of these studies (Solange Telles da Silva).

National recommendations

1) It is important that countries have the legal tools necessary to access these resources effectively and benefit from sharing in a fair and equitable manner, especially after the adoption of the Protocol of Nagoya (Tarin Frota Mont?Alverne).

3) Green Economy in the Sustainable Development context: Governance and Institutional Framework

a) State Liability

International Recommendations

1) All Signatories shall promote sustainable management, especially within the government administration (Maria Augusta Ferreira).

2) Sustainable management means one that is conducted with transparency, accountability, and in an ethical manner, with public participation and respect for the concerns of interested parties (stakeholders ? employees, customers, suppliers, society, and government), human rights, and the environment (Maria Augusta Ferreira).

3) Respect for the environment in public administration is founded on the following pillars: environmental education, sensible use of resources, proper disposal of waste, sustainable public procurement, and a healthy work environment (Maria Augusta Ferreira).

National Recommendations

1) The environmental responsibility of federal, state and local entities includes, beyond liability for damages, a responsibility to prevent damages by reducing the environmental impact of state activities, though the adoption of sustainable management practices (Maria Augusta Ferreira).

b) Companies Liability

International Recommendations

1) Creating guidelines that impose strict liability on companies for environmental damages caused by those companies, with joint and several liability between both parent companies and their subsidiaries (Carole Peychaud).

2) Having an Agreement on "Rights and responsibilities of market players" with guidelines such as: (PDMA)

a) Minimum criteria, which would constitute the basis for the Code of Conduct for Companies (obligations and their subjects must be precise and clear) (PDMA).

b) Creating an obligation to produce annual statements that consider environmental and social criteria; (PDMA).

c) Promoting imperatives for voluntary certifications obtained according to the standards of ISO, for example (PDMA).

3) Environmental conventions containing provisions for conflict of laws and jurisdictional conflicts, giving preference to the laws and courts that could best grant relief. Examples of rules (PDMA):

a) Conflict of laws:

1) In the case of compensation for environmental damage, the rule most favorable to the victim and to environmental protection should be applied; 2) if there exists environmental insurance, the law on the rights of the insured should be applied, 3) in case of environmental damage, the law of the jurisdiction of the parent company may be applied if it has control over the activities of its subsidiary.

b) Conflict of jurisdictions: (PDMA)

1) The victims of environmental damage may choose the court most expedient for the granting of relief, for example: based on the proximity of the evidence;

2) If the parent company has control over the activities of its subsidiary, the jurisdiction of the parent company will be competent to hear the case;

3) A multinational corporation may be sued in the court of the domicile of the defendant. If the defendant is a corporation, the domicile of the defendant may be found in any of three places: a) where the company has been incorporated, b) the location of its headquarters, or c) its principal place of business.

Specific Recommendations for International Law of Investments

1) The integration of clear environment protection provisions in international investment agreements: the future investment agreements or the renegotiation of existing agreements should include specific provisions on environment protection. These provisions can consider (Nitish Monebhurrun):

(i) The definition of an investment activity: The activities of those companies which are constituted without knowledge of domestic environmental laws should not be qualified as an investment and therefore should not benefit from the protection of the investment agreement. The international investment agreement provision on the definition of the investment must underscore this point. The agreement must state that the investor has a duty to check, examine and understand the legal framework of the host state, especially the one applicable to the environment, so that it shall start and conduct its activity accordingly.

(ii) The definition of the environment: Environment is not an abstraction and in the vein of the previous proposition, some details must be available to define or to identify what is to be understood by environment. It might be a complex task to give an exhaustive definition but it is not impossible to give a list of indicators. These indicators may vary from one state to another.

(iii) Affirming the right of states to regulate according to their environmental concerns: compensation is usually provided in case of exploitation. For example, expropriation with environmental motives should have a specific status and the compensation for this kind of expropriation should be designed to give legitimacy to the objective of environment protection.

(iv) The legitimate expectations of States: The agreement must declare that States have a legitimate expectation that private companies investing on its territory will always act in good faith in order to collaborate with them, whenever environmental goals are concerned. Therefore, private companies have a duty to act accordingly and must not frustrate these expectations.

2) The integration of clear rules of conflict in international investment agreements: emphasizing the prevalence of environment protection norms over investment protection norms (Nitish Monebhurrun):

(i) The principle: Whenever there is a potential conflict between the investor's or the investment's protection and the environment protection, the investment agreements must present clear rules of conflict. The investment agreement can assert that whenever an investment protection provision is in conflict with an environmental norm, the latter shall prevail over the former. As environment protection is a unanimous goal which is fundamental, it must be a priority.

3) Promoting the use of the systemic integration principle (Nitish Monebhurrun):

(i) The principle: Hereby, agreements should declare that international investment law is not isolated from the rest of international law and that the interpretation of an international investment treaty does not exclude references to other non-investment norms, like environmental norms. This is in agreement with article 31(1)(c) of the Vienna Convention on the Law of Treaties. Hence, environmental norms can be integrated in international investment dispute settlements. They can be invoked by states and will have to be taken into consideration by arbitral tribunals.

National Recommendations

1) Implementing and publicizing the system of National Contact Points in the OECD so that companies can be questioned about their actions by society (PDMA).

2) Controlling the private activities through: 1) creation of precise sustainability criteria which companies should present; 2) mandatory presentation of these criteria, and

3) Government oversight of the information published. These criteria may be based on the GRI (PDMA).

c) Financial Institutions Liability

1) Organizations, whether public or private, national or international, which finance or support activities or projects which pollute the environment or may potentially pollute the environment shall require the submission of all documents relating to the environmental licensing of the project financed by them and issued by responsible controlling agencies, under penalty of becoming jointly liable for any effects arising from the violation of this Act or its regulations (Bruna Acerbi).

2) In addition, an environmental cost-benefit analysis must be taken into consideration, defining the aims of a project and identifying its impacts, defining them according to their relevance and measurement in physical units, as well as appraising them in monetary terms. (Luiz Borges)

3) Experience from a Brazilian financial institution on incorporating socio-environmental criteria into institutional and management policies of credit allocation: ?Itaú Unibanco has a Socio- Environmental Risk Policy which sets out the internal guidelines for the identification of socio- environmental risks of the projects1 to be financed. Consequently, Itaú Unibanco has a specialized multidisciplinary team, which (i) accesses the socioenvironmental conformity of the project and that of the potential corporate client, (ii) issues an opinion which is taken into account in the credit approval process, and (iii), as the case maybe, monitors the projects and respective clients. To check socio-environmental conformity, this team: a) verifies if the potential corporate client is involved in activities related to forced labor, child labor and prostitution. Should such activities come to light, the request for credit will be turned down; b) verifies if the potential client operates in sectors which have a significant socio-environmental impact, such as2: (i) extraction and production of wood, firewood and charcoal from native forest areas; (ii) mining and industrialization of asbestos; (iii) fisheries; or (iv) production and sale of firearms, munitions and explosives. In these cases, Itaú Unibanco conducts specific investigations in accordance with the activity involved: i)investigates the potential customer?s socio-environmental management and the existence of any legal or administrative actions or news items which might cast the client in an unfavorable light; ii)solicits socio-environmental documentation with respect to the potential client and the project itself, among which, the environmental license; iii) undertakes technical visits, as required; and (iv) requests a technical analysis of the project where necessary. Once the financing is approved, the contract is drawn up to include environmental clauses allowing Itaú Unibanco to suspend with immediate effect the liberation of funds and to require early repayment of the operation in the event of the financed entity?s non-compliance with the socio-environmental legislation and regulations. There are also specific contractual provisions for such cases, among others, genetically modified organisms (GMO) research, compliance with legal forest reserve norms, permanent preservation areas and lands declared as pertaining to indigenous peoples? reservations. Where a transaction is collateralized with real estate, Itaú Unibanco checks as to whether the property given in guarantee carries any environmental liabilities through an examination to be performed by an appropriate expert? (Itaú Unibanco).

d) The liability of non-governmental organizations

1) Consolidate Chapter 27 of Agenda 21, in particular: "27.1. (...)The credibility of nongovernmental organizations lies in the responsible and constructive role they play in society. Formal and informal organizations, as well as popular movements, should be recognized as partners in the implementation of the Agenda 21. The nature of the independent role played by non-governmental organizations within a society calls for real participation (...); 27.5. Society, Governments and international bodies should develop mechanisms that allow non-governmental organizations to play their partnership role in a responsible manner and effectively in the process of environmentally sound and sustainable development. 27.6. In order to strengthen the role of non-governmental organizations as social partners, the United Nations System and Governments should begin a process of reviewing formal procedures and mechanisms for the involvement of these organizations at all levels from policy-making and decision-making to implementation, in consultation with non-governmental organizations (Erico Mabellini).

e) Information Access and Public Participation

International Recommendations

1) It is necessary to define the meaning of the right of access to information at both the international and national levels (PDMA).

2) Signing a Regional Convention in Latin America in order that the principle of information access may be implemented, under the control of an institution, such as ECLAC (The TAI Network).

3) Ratifying of the Aarhus Convention (PDMA).

4) Establishing the right to access information on biotechnology and nanotechnology as well as nuclear and other advanced technologies (Solange Telles da Silva).

National Recommendations

1) Establishing publication deadlines for all documents related to environmental decisions (PDMA).

2) Imposing financial penalties in the case of noncompliance with publication deadlines (PDMA).

3) Ratifying of the Aarhus Convention (PDMA).

4) Signing a Regional Convention in Latin America to be implemented the access to information in the region under control of a regional institution (PDMA).

5) Establishing a fully detailed decree of often imprecise terms, with some examples of articles (PDMA):

a) Public audiences may be conducted, for instance, by sector, population or community, in order not to allow domination of the audience by people who have greater chance to express themselves (Colin Crawford).

b) Requiring effective mechanisms of access to all relevant documents to public audiences by population and interested communities, as well as access to versions with comprehensible language of details of the proposed projects (PDMA).

c) Providing training courses for community leaders and mediation techniques in order to qualify the ones who need to access the public audience procedures (PDMA).

d) Requiring public participation from the beginning of the procedure or process that will affect a specific community (PDMA).

6) Requiring the preparation of Environmental Impact Report (EIR) linked to the Preliminary Study Environmental Impact Assessment (EIA) (PDMA).

7) Environmental documents shall be available on the Internet (Larissa Clare Pochmann da Silva).

f) Oversight and Accountability

1) Implementation of the monitoring system such as the GRI in the States (PDMA).

2) Controling of information provided by the companies in their annual reports by the state through a government agency (PDMA).

3) Disclosure of corporate balance sheets on the Internet (with compatible data set by States) (PDMA).

4) Rule on the requirement of social balance, with the prediction of environmental and social aspects (PDMA).

5) Issuing a decree stipulating the criteria that should be in the company's annual social report in order to make that information comparable (PDMA).

g) Green Public Procurement

International Recommendations

1) Writing more specific guidelines on the green bidding topic at Rio +20 (Teresa Villac P Barki).

2) Strengthening of the sustainable Public Procurement in the MERCOSUL (Teresa Villac P Barki).

National Recommendations

1) Insertion of sustainable hiring in the planning activities of public entities (Teresa Villac P Barki).

h) Water: The Creation of Protected Areas on the High Seas

1) In order to achieve sustainable development, States should create marine protected areas (Fernanda Salgueiro Borges).

2) Marine Protected Areas should be considered as areas of full protection, essential for the conservation of biodiversity and for the maintenance of essential ecological marine processes (Fernanda Salgueiro Borges).

3) Any activity affecting or potentially affecting the ecological balance and biodiversity conservation in marine protected areas should be considered prohibited in respect of the right to an ecologically balanced environment for the present and future generations (Fernanda Salgueiro Borges).

4) Marine Protected Areas should ensure the protection of biodiversity and the quality of marine waters, to avoid acidification and death of organisms for biotic and abiotic necessary to capture carbon from the atmosphere, responsible for mitigating global warming and climate changes (Fernanda Salgueiro Borges).

5) Marine Protected Areas should ensure the preservation of natural fisheries resources, required for food security of present and future generations (Fernanda Salgueiro Borges).

i) Water: The Management of Aquifers Located under the Territories of Several Countries

1) Reduce asymmetric information (specific case of Guarani Aquifer) (David Cassuto and Romulo Sampaio).

2) Increase regional and local engagement (awareness, capacity-building and traditional knowledge) (David Cassuto and Romulo Sampaio).

3) Harmonization of national legislation (David Cassuto and Romulo Sampaio).

4) Regulatory structures (environmental services) (David Cassuto and Romulo Sampaio).

j) Taxation as a Means of Environmental Management

International Recommendations 1) Establish a limit (cap) for each country of carbon emissions. The initial cap will be the result of the average carbon emissions over the past three to five years. A transition rule might be created (more lenient rule) for developing countries and LDCs (Least Developed Countries ? according to WTO classification) - so that these countries are not disadvantaged because of their low level of current development, and so they can still develop despite the targets for carbon reduction (Tatiana Falcão Octaviano).

2) The carbon emitted in each country shall be taxed in order to encourage companies to use resources in developing new technologies for clean energy production. The tax rates should be the same in each country (we suggest the establishment of a maximum rate and minimum rate), so that they are not created "carbon tax havens" (Tatiana Falcão Octaviano).

3) Establishing maximum and minimum rates that will also prevent the adoption of tariff adjustments on products importation (Border Tax Adjustments "BTA") (Tatiana Falcão Octaviano).

4) Creating a treaty that establishes a origin for the carbon emitted as a result of international activities (Tatiana Falcão Octaviano).

5) Creating a new international body with police power in order to monitor and eventually penalize those who do not comply to the limits imposed by the treaty (Tatiana Falcão Octaviano).

National Recommendations

1) Green tax:

a) Establishing a less onerous form for the final consumer, for fuel tax, so as to encourage the consumption of cleaner fuels (such as biodiesel and alcohol) in order to reduce the consumption of high carbon concentration fuels, which are more pollutant, such as diesel and coal burning (Tatiana Falcão Octaviano).

b) Establishing a green contribution (purposing the creation of a fund to combat climate change and reduce the harmful effects of global warming) on fuel. The contribution would be progressive, more burdensome to diesel fuel and less to biodiesel, for example (Tatiana Falcão Octaviano).

c) The funds raised with the contribution should be used in development of green Brazilian technology for the production of electric cars, development of new forms of biodiesel (for instance, it is possible to transform peel potatoes and other vegetables into fuel) and even for the promotion of "green" initiatives such as increased efficiency in the recycling project, replanting of forests (which are also internationally known as "carbon sinks" as we consume and re-absorb carbon from the atmosphere), construction of bike lanes to encourage bicycle use by local people, etc (Tatiana Falcão Octaviano).

k) The Non-Regression Principle in Environmental Law

International Recommendations

1) Integration of the principles of non-regression of the human rights area into environmental law (Michel Prieur).

2) In order to preserve the sustainable development and ensure the necessary protection of the environment, states may not take legislative, administrative or judicial measures importing an unlawful reduction of their protection levels granting by laws that protect the environment except in public interest prevalent case (Maria Morelli).

3) If states adopt a legislative, administrative or judicial measure which reduces levels of environmental protection in force, they shall justify the reasonableness and proportionality of the measure (Maria Morelli).

National Recommendations

1) The environmental goals should be achieved in a gradual manner, through provisional and final targets, on the basis of a state planning that facilitates the implementation of activities related to these goals (Maria Morelli).

2) Efforts to ensure environment protection and conservation cannot decrease. So in this sense, it is forbidden to adopt legislative, administrative or judicial measures that illegitimately reduce levels of environmental protection legislation, except in case of public interest, which must prevail (Maria Morelli).

l) The definition and criteria for local sustainability

National recommendations

1) Definition and promotion of sustainability indicators that can be used for the formulation of local environmental policies. Indicators should reconcile the protection and preservation of goods, services and environmental and cultural resources with economic and social development needs (PDMA).

m) Policies and standards for the protection of animals

1) Review: As founder and director of an NGO for the animal and environment, I would like to emphasize, that the animal protection associations also have great value to the conservation of the natural environment, which is "habitat" of wild animals from all over the world. The claims of the Animal Rights Movement will allow the Rio + 20 Conference to transcend the anthropocentric world view, by citing that not only humans, but also many non-human life forms that inhabit this planet with us, as the non-human animals are subjects of rights. Another important role of the third sector aimed at the protection of animals is the constituted authorities to help in the fight against wildlife trafficking, criminal activity that destroys the environment in a completely unsustainable and unacceptable way, in all respects (Erico Mabellini).

4) Green Economy on Sustainable Development context: eradication of poverty

a) Regularization

1) Establishing property rights in forested areas and biomes in order to prevent illegal deforestation. (Fernando Meneguin).

2) The concession of rights to public lands to ensure better monitoring of national resources and to facilitate land regularization (Fernando Meneguin).

3) Imposing limits on land use; the concession of land rights, which are not absolute, but provide benefits to the title holder and to the state though terms and restrictions on the use of the land (Fernando Meneguin).

4) Establishing an effective policy and a coordinated regional planning (Jose Heder Benatti).

a) The State must be proactive and coordinate the process of regional planning for public policies that are effective, because the lack of a public goods allocation policy may leave space for the a chaotic land occupation of public areas, through land invasion and deforestation, which often happens when there is no such policy.

b) So in this sense, it is necessary to establish a regional planning policy to include: land regularization; environmental licensing of rural properties; obedience to the social function of ownership; control, enforcement and economic instruments capable of stimulating the sustainable management of natural resources, especially forests.

i) For example, the economic or tax incentives can stimulate private spending in certain areas, discourage bad behavior, and correct the market trends that can encourage actions against nature conservation and the natural resources protection.

5) Land regularization in order to ensure control and define property rights, allowing the public power to know who is occupying land and how they are being used (Jose Heder Benatti).

a) Firstly, to overcome the current land chaos, land ownership must be determined - who is the owner of the land, public or private sector? If public, which federative entity?

b) Official recognition of the different existing forms of occupation should allow the state and society to have the control over the use of land and other natural resources. Therefore, the regularization will be positive and not negative, since it prioritizes family occupation.

c) Another positive effect of land regularization policy is the fight against illegal occupation of public lands.

6) There are several necessary steps to implement a land use (José Heder Benatti):

d) To overcome the limited management capacity of agencies responsible for planning land, whether in its technical or staff.

e) Understand that the consolidation of rural property, respecting the social and environmental assumptions, represents an important step towards the strengthening of citizenship and environmental protection.

7) The process of regularization of land occupation should (José Heder Benatti):

f) Be accompanied by a survey and a descriptive, georeferenced memorandum. The financial costs for its preparation should be the responsibility of recipient of legitimacy, with exception of the processes of regularization of small properties.

g) Include in the title deeds issued by the land agency clauses requiring the beneficiary to maintain, conserve and, if appropriate, restore the permanent preservation areas and legal reserves.

8) Other necessary and complementary actions to the regularization (Jose Heder Benatti).

h) Scanning of land acquis.

i) Modernization of access to registry information of rural land in order to increase the effectiveness of the real estate property registration processes records and ensure that information can be obtained quickly and from a distance by public authorities relating to questions of federal land.

b) Environmental Education

International Recommendations

1) Making investment in education a priority in developing countries and underdeveloped countries, since the lack of education contributes to unemployment which results in crime and poverty. In addition, ensure that education serves as a tool for public awareness of the current problems in the world, such as politics, health and environmental preservation. The unequal distribution of wealth is also a consequence of poor education (Patricia Pellanda).

National Recommendations

1) Environmental education, at all levels, is everyone's responsibility because it contributes to the reduction of social inequalities. The principle of transversality should be followed in schools (Maria Collares).

2) Government should be able to train teachers to teach environmental education at all levels of government and to monitor the effectiveness of the method adopted (Maria Collares).

3) Information on Environmental education requires transparency to public in order to contribute to the protection of natural resources, the public health and to the poverty eradication (Maria Collares).

4) Environmental education propels sustainable development. It should be compulsory in schools, social, professional and public activities (Maria Collares).

5) The Inclusion of Environmental Law as a mandatory subject in law schools in order to contribute to educate professionals to apply effectively environmental legislation in all activities (Maria Collares).

c) The fundamental right to land and food

International Recommendations

1) Regarding the right to food, the focus of debates is on hunger eradication of people. This problem cannot be based on instruments that aim at increasing food production in the world, but on appropriate means to combat social inequalities and unequal distribution of wealth (Patricia Pellanda).

2) Cooperation and mobilization of all countries is necessary to fight against poverty and social exclusion. It is necessary to decentralize poverty policies in order to enforce cooperation, based on the premise that resources should be made available by the richest countries for the poorest countries (Alexceia Ferreira).

3) Encouraging the application of a ?Solidarity Economy?, warning private sector that their donations and supportive attitudes may contribute to the results of the company itself (Patricia Pellanda).

National Recommendations

4) Guarantee of land and territories granted to indigenous people and traditional communities as a collective right, transcending the idea of merely individual property (Patricia Pellanda).

5) Prevent State?s domestic law equating indigenous lands to family farms. On this perspective it is important to achieve an international commitment and recognition of specific features of indigenous people and their cultural practices. This measure will prevent the high development of agribusiness lands and other explorations that have been occurring frequently on these populations? lands (Patricia Pellanda).

3) The commitment of States to reduce/eliminate corruption in politics. In addition to this, States shall punish those who: divert funds, individually enrich and ?forget? their real function towards government and social obligations. Corruption can be reduced by strengthening social bases and basic education (Patricia Pellanda).

4) Public awareness that many problems can be solved in the short term through measures introduced by them and taken by the population itself, independent from the government. Problems such as hunger and environmental devastation belong to everyone. In long term, the eradication of poverty can be solved through an alliance between civil society and government. Since it is a problem that concerns everybody, it is the essential to engage various sectors of society (Patricia Pellanda).

5) Besides sufficient quantity of food to fulfill basic human needs, the quality of food and water should be prioritized, in order to achieve international food security intended. Quantitatively and qualitatively appropriate nutrition result in positive consequences for the health sector such as diseases reduction, especially those arising from the use and the consumption of pesticides and new technologies (transgenic) (Patricia Pellanda).

d) Definition and Criteria for a Sustainable City

National Recommendations

1) Definition and promotion of sustainability indicators that may be used for the development of local environmental policies. These indicators must reconcile the protection and the preservation of goods, services, environmental and cultural resources with the needs of economic and social development (PDMA).

e) The rights of indigenous people and of traditional communities

International Recommendations

1) A Protocol is necessary to precise definitions, obligations and rights of indigenous people and traditional communities with provisions such as (PDMA):

a) Prior, free and informed consent in relation to any activity held in indigenous areas;

b) Participation in the implementation of projects that can affect their lives;

c) Protection and guarantee to land access, natural resources and to benefits derived from their use;

d) Recognition of traditional knowledge of indigenous people and protection of people relocating to other territories;

e) Monitoring mechanism should be created at the international and national levels to ensure transparency and effectiveness of these rights.

2) Indigenous people may be impacted from the consequences of global climate change. It is necessary to ensure that such impacts are mitigated and that training and adaptation to climate change are rights of these peoples (PDMA).

3) Indigenous people have a crucial role in the conservation of environmental resources. This role should be recognized for compensation for environmental services and distribution of REDD benefits (Reducing Emissions from Deforestation and Degradation) (PDMA).

National Recommendations

1) Better access to information and participation of indigenous people in the implementation and development of projects that affect them directly or indirectly (PDMA).

2) Recognition of land and territories granted to indigenous people and traditional communities as a collective right, transcending the idea of merely individual property (Patricia Pellanda).

3) More precise definitions of terms such as traditional communities (Colin Crawford).


5) National Institutional Framework

a) Legal and Procedural instruments

International Recommendations: procedural instruments

1) Acceptance of civil society participation through representative entities such as amicus curiae in international environmental dispute settlement (Larissa Clare Pochmann da Silva).

2) Establishing a right to sue, the lack of implementation of environmental treaties in national tribunals (Gérard Monédaire).

3) Creation of Regional Integrations, provided with a distinct legal personality from the Member States, competent to sign Environmental Treaties (Gérard Monédaire).

4) Right of petition, so that the society can intervene in the Legislative Assemblies or Commissions (Gérard Monédaire).

5) Imposition of financial sanctions to disobedience or incomplete compliance with Tribunals decisions or laws concerning environment (Gérard Monédaire).

6) Reversal of the burden of the proofs in environmental disputes (Carole Peychaud).

International Recommendations: legal instruments

1) A treaty on the reparation of environmental transnational damage affecting citizens of other countries (Larissa Clare Pochmann da Silva).

National Recommendations: procedural instruments

1) Disclosure of condemnation of environmental damage with destination of these values to international public funds. Publicity of the application of these values to environmental protection (Larissa Pochmann Clare da Silva)

b) Analytical methods to measure the effectiveness of law enforcement

International Recommendations

1) The Secretariats of the Conventions must require States to designate national institutions to be National Points of Contact responsible for identifying the implementation of environmental treaties (PDMA).

2) The priority must not be the creation of new laws and treaties, but the political and legal commitment to the implementation of existing standards (Patricia Pellanda).

National Recommendations

1) Application of environmental quality standards such as agricultural pesticides eradication that have occurred in Europe (Solange Teles).

2) Creation of legal environmental sustainability indicators of environmental governance (Solange Teles).

6) International Institutional Framework

a) Existing Institutions

International Recommendations

1) Creating a new international agency within the United Nations to discuss sustainable development, which would incorporate the UNEP and the committee within the ECOSOC responsible for sustainable development (PDMA).

2) Creating a committee inside this new body that would represent international NGO?s selected according to their performances (PDMA).

3) Focus on UNEP (PDMA).

4) The transformation of the UN Economic and Social Council to the Economic, Social, and Environmental Council (PDMA).

5) Reforming of the Commission on Sustainable Development in the General Assembly (PDMA).

b) The Necessity of new institutions: the World Environmental Court

International Recommendations

Considering the International Court of Justice (ICJ) importance in the international community - we propose the reform of the ICJ or the foundation of a World Environment Court, based on the following proposals (Rafael Prado):

1) Increase flexibility of the ICJ Environmental Chamber, and encourage the use of principle of the public participation principle and the access of stakeholders to justice (not just government but also civil society). The public participation principle is fundamental principle in International Environmental Law and was recognized by the ICJ Judgment in the same case of the Pulp Mills on the Uruguay River (Rafael Prado).

2) ICJ shall demonstrate its wide jurisdiction over environmental matters involving Member States, not by modifying its Statute inserted in the UN Charter, but materializing the public participation principle and access to information and to justice, in case of environmental issues that directly affect national populations of litigants countries (Rafael Prado).

c) The necessity of new Institutions: World Environmental Organization

International Recommendations

1) Environmental conventions Secretariats, as technical instances of conventions, would be specialized organs in the new International Organization (Sandro Schmitz dos Santos).

2) There would be a Settlement Body, according to the model of WTO, which would also be a consulting and arbitration body on violations of International Environmental Law. This body would also be composed of a Commission with competencies similar to the Inter-American Commission on Human Rights (IACHR) (Sandro Schmitz dos Santos).

3) Three would be the new organization sources of income: the quota-share from the participant countries, major financial penalties for environmental damage, and fees obtained from carbon credits certification and environmental economics in general (Sandro Schmitz dos Santos).

Moderators of the Forum Rio + 20, researchers and institutions that have contributed for the recommendations

PDMA: Fernando Penteado, Carina Costa de Oliveira, Rômulo Sampaio, Feliciano Guimarães, Mariana Monjardim, Maria Fernanda Gebara, Mariana Campos, Renata Staudoar, Catarina Freitas; Academia Paranaense de Direito Ambiental: Alessandra Galli, Daniela Slongo; Membros da AGU: Erika Pires Ramos, Maria Augusta Ferreira, Teresa Villac Pinheiro Barki; Marcos Weiss Bliacheris; CEDA ? Daniel Barragan; CEDAM- Patrícia Précoma Pellanda, Alexceia Ferreira, Antonio Araujo, Felipe Iubel Belao, Fernando Cesar Pellanda, Herik Chaves, João Renato Lima Paulon, Juliana Correa Tuji, Liana Amin Lima da Silva e Patrícia Précoma Pellanda; Centre International de Droit Comparé de l?Environnement-CIDCE ? Michel Prieur, Gerard Monèdiaire, Fréderique Bouin, Jessica Makoviac ; EMERJ ? Escola da Magistratura do Estado do Rio de Janeiro: Maria Collares Sidney Hartung Buarque, Leila Mariano; FGV Direito Rio : Luiz Ferreira Xavier Borges, Silvia Pinheiro; IBRADA: Flávia Frangetto e Ricardo Stanziola; IEDC - Sandra Kish; Instituto de Direito e Meio Ambiente Brasil-Estados-Unidos ? BAILE ?David Cassuto; Mackenzi-SP: Fernanda Salgueiro Borges, Solange Telles; Moderadores Site Forum de Sustantabilidade Rio + 20: Maisa Nazario, Carol Manzoli, Lucas Noura, Larissa Clare Pochmann da Silva, Sandro Schmitz dos Santos, Arivaldo de Souza, João Renato Paulon, María Paula Morelli, Eldis Camargo, Leandro Eustáquio, Marcio Dias Lopes; Daniela Stump, Luiz Gustavo Bezerra, Rafael Prado, Claudio Lourenço Franco, Guilhardes de Jesus Júnior, Bruna Lagreca Acerbi, Humberto Moura, Carolina Claro, Sandro Schmitz, Tatiana Falcão Octaviano, Tarin Frota Mont?Alverne; MP Rio Grande do Sul: Eduardo Viegas; NKF advogados ? Luciana Lima, Cláudia Aleixo, Gisele Kakazu; Núcleo de Estudos e Pesquisas do Senado Federal Carlos Henrique R. Tomé Silva, Tarciso Del Maso, Fernando Meneguin, Luísa Cardoso e Mateus Brasileiro; Prefeitura do Rio de Janeiro: Eduardo Rosa; PUC Brasília: Renata Calsing; PUC Goiás: Luciane Martins de Araújo Mascarenhas, Luiz Antônio Tietzzman e Silva, Dimas Pereira Duarte Júnior; Professores da PUC-SP: Consuelo Yoshida, Erika Bechara; SUDEMA: Helena Telino Neves; Tribuna Animal: Erico Mabellini; Tulane University Colin Crawford, Marcus Gatto; Uniceub: Marcelo Dias Varela, Maria Marinho, Lucas Noura; Humberto Moura; Universidade do Estado do Amazonas ? UEA ? Joelson Cavalcante; Universidade Federal do Pará José Benatti. Um agradecimento especial também aos seguintes juristas: Priscila Pereira de Andrade, Carole Peychaud, Meryem Deffairi, Virgilio Gibbon, Nitish Monebhurrun, Grace Ladeira. Um agradecimento ainda a todos que fizeram comentários no FORUM FGV Direito Rio + 20
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