Aspectos jurídicos do meio ambiente ecologicamente equilibrado : limites e possibilidades a partir da experiência no âmbito do processo público de tomada de decisão de liberação de trangênicos no meio ambiente em escala comercial

AUTOR(ES)
DATA DE PUBLICAÇÃO

2008

RESUMO

The present dissertation analyses the brazilian public decision process related to commercial release of genetic modified organisms GMOs in the environment, in contrast with the constitucional principles stated by the brazilian Constitucional Democracy, in order to identify a new and significant dimension of the right to a healthy and balanced environment (article 225 Brazilian Federal Constitucion of 1988). Jürgen Habermass discursive theory of law and democracy, Ronald Dworkins theory of law as integrity and Friedrich Müllers methodology of law are the epistemological bases of this study. The constitucion is seen as a process based on a community of principles, in which everyone can and should make an interpretation, as a way of establishment of communicative courses that makes possible the participation on the discursive creation of law, understood by a procedural manner. The decision process should guarantee not only discursive and communicatively established conditions, by biosafetys and constitucions interpretation, but also the participation of all of those potencialy affected, as a democratic precondition of active citizenship, incorporated in the mencioned article 225, that reinforces the idea of self-legislation.Therefore, principles of public participation, publicity and information are legitimacy standards of decision process related to transgenics with potencial environment damages. The risks involved have a social dimension and they express a way of time binding with the future not determinable in the present, that imply a general obligation of preventivity, incorporated in the mencioned article 225, and suggests that the precautionary principle mediates between decision and risks. The historical review of the n. 11.105/2005 laws legistative process reveals that the role of the constitucion and the law is not to solve easily the problems, but to start them, in order to be discuted also in front of and by the administration, guaranteeing an adequate public sphere. The casess analysis suggests that the principles of public participation, publicity, information and precaution implicate one each others and contribute, even by their justiciability, to obrigate the decision process to organize itself by the law and to legitimate itself, by the legitimaly established law. This organization of the decision process related to transgenics implies a new and significant dimension of the right to a healthy and balanced environment, materialized by public participation and active citizenship, in order to technical biosafety decision better qualifies its decisive arguments, in a discursive manner, as valid pretensions created and accepted. The administrations desconsideration of public participation in the decision process is seen as a deficit, claimed by judicial review and prosecutors interventions, started by integrated actions of civil organizations. There is a significative asymmetry between higher consideration of technical reasons of CTNBio, established on a supposed legal administration concerned to biosafety measuress adjustment related to the environment conservation, compared to political and juridical reasons that also integrate the decision process. As a consequence, it indicates that these political and juridical reasons arent being adequately considered by CNBS, although this problem can be partially minimized by those mencioned principles and by the definition of the precautionary principles parameters of application, which could be seen as a contribution to that democratic significant and qualified new dimension of the right to a healthy and balanced environment.

ASSUNTO(S)

teoria discursiva do direito e da democracia estado democrático de direito direito ao meio ambiente ecologicamente equilibrado lei de biossegurança lei n. 11.105/2005 ctnbio direito discursive theory of law and democracy constitucional democracy constitucional principles brazilian biosafety law lei n. 11.105/2005 ctnbio organismos geneticamente modificados (ogms) princípios constitucionais cnbs princípio da precaução right to a healthy and balanced environment genetic modified organisms gmos cnbs precautionary principle

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