Research Program on Law and the Environment - (PDMA)
- Date submitted: 1 Nov 2011
- Stakeholder type: Major Group
- Submission Document: Download
- Additional Document:
NORMATIVE RECOMMENDATIONS FOR RIO + 20
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
(http://riomais20.direitorio.fgv.br/), 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.
GREEN ECONOMY IN THE CONTEXT OF SUSTAINABLE
DEVELOPMENT AND POVERTY ERADICATION
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
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
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
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).
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
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
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
http://www.irena.org/home/index.aspx?PriMenuID=12&mnu=Pri) (Priscila Pereira de
1) States should be Memberships in the International Agency for Renewable Energy established
in January 2009 (IRENA - http://www.irena.org/home/index.aspx?PriMenuID=12&mnu=Pri)
(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
8) Promoting public policies aimed at reducing consumption in order to reduce consumer power
demand (Luciane Martins de Araújo).
c) Biodiversity and compensation mechanisms
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
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
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
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
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
1) Adopting of a statement of principles for sustainable construction at the Rio +20 Conference
(Luiz Gustavo Bezerra).
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
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
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).
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
a) State Liability
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).
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
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
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
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
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
(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
(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
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
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
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
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
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
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).
1) Establishing publication deadlines for all documents related to environmental decisions
2) Imposing financial penalties in the case of noncompliance with publication deadlines
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
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)
4) Rule on the requirement of social balance, with the prediction of environmental and social
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
1) Writing more specific guidelines on the green bidding topic at Rio +20 (Teresa Villac P
2) Strengthening of the sustainable Public Procurement in the MERCOSUL (Teresa Villac P
1) Insertion of sustainable hiring in the planning activities of public entities (Teresa Villac P
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
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
1) Reduce asymmetric information (specific case of Guarani Aquifer) (David Cassuto and
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
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
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
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
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
1) Integration of the principles of non-regression of the human rights area into environmental law
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).
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
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
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
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
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
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
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
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
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).
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
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
c) The fundamental right to land and food
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
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
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
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
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
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).
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).
NATIONAL AND INTERNATIONAL INSTITUTIONAL FRAMEWORK FOR
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
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
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).
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
6) International Institutional Framework
a) Existing Institutions
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
b) The Necessity of new institutions: the World Environmental Court
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
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