Análise da relação entre a Lei n. 3135/2007 do Estado do Amazonas e o direito internacional à luz da doutrina antiformalista francesa

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

Since the 1970s, legal instruments aimed at environmental protection have been proliferating. International Environmental Law has been expanding as an answer to environmental challenges faced by mankind. Climatic changes caused by manmade greenhouse gases (GHG) emissions are probably, the greatest of such challenges, since it is directly related to the lifestyle adopted (or desired) by most of the current human societies, which makes it more difficult to cope with the problem. Therefore, the international negotiations concerning the matter have resulted only in the establishment of an international legal protection regime for the climate which is considered insufficient due to the magnitude of the challenge. Moreover, not all of the great greenhouse gases emitters are obliged to reduce their emissions, notably the United States, since they have not ratified the Kyoto Protocol, a key piece of the regime. Furthermore, developing countries which are also large emitters, such as China, Indonesia, Brazil and India, are not subject to any obligations to reduce their emissions and, finally, there are not any incentives, in this international regime, to the reduction of emissions from deforestation. It is in this context that the State of Amazonas, a Brazilian sub-national unit, has enacted State Ordinary Law # 3135/2007, as well as other legal instruments, and has designed a specific policy to address the issue of climate changes, even though Brazil has not yet adopted similar measures; furthermore, the State is willing to develop market mechanisms in order to promote the reduction of emissions from deforestation, a rather different position from that of Brazil. It should be noted that the Law # 3135/2007, directly in its text, provides for the relation between itself and International Law. The conduct adopted by the State of Amazonas seems to address an aspiration from local and global societies, besides, possibly, result in a relativization of the concept of sovereignty and in the performance of typical functions of international law. Therefore, this work aims at verifying if the State of Amazonas, under the French antiformalist legal doctrine, has performed functions of international law when it enacted a specific legislation to address the issue of climate change. The choice of this doctrine derives from the fact that it is more adequate to explain legal phenomena which do not fit in more traditional notions. To achieve the goal of this work: firstly, an exposition of the French antiformalist legal thought is performed, taking into special consideration Léon Duguit, Nicolas Politis and Georges Scelle; secondly, an analysis of the expansion of the juridical protection of the environment and the construction of the international regime to address the climate is performed; thirdly, an analysis of the legislation from the State of Amazonas and International Law is executed. Finally, it is concluded that the State has indeed performed international law functions and that it, probably, resulted both from internal and external pressures, as well as from the perception that the State could potentially obtain political and economic gains by adopting such legislation.

ASSUNTO(S)

direito ambiental meio ambiente - legislação - amazonas direito

ACESSO AO ARTIGO

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