DISSERTAÇÃO DE MESTRADO: PAPEL DA SOFT LAW NA EFETIVAÇÃO DO DIREITO AMBIENTAL INTERNACIONAL (original) (raw)

After the arising of rules superior to the will of States (jus cogens), another type of rule has appeared and is still in a period of comprehension, called soft law. Developed in a moment of transformation of International Public Law, it has its origin based on the increasing participation of multilateral diplomacy during the 20th century. Its flexible norms constitute rules that, in case of non-compliance, do not bring on any kind of sanction. This characteristic is resultant of its concept and limits which are still under construction. In this context, the present dissertation aims to comprehend how a non-obligatory norm can serve as an inspiration to the growth and evolution of a new branch of Law through the incorporation of such concepts. In this sense, the present study is structured in two parts: a first part has a more normative nature, and the second part has a more practical characteristic. In the first part, the relation between soft law and the sources of International Law were analyzed, where it was possible to conclude that soft law can not be considered an autonomous source, according to the terms of the Statute of the International Court of Justice. However, it serves as an inspiration for International Environmental Law to develop and achieve more guarantees, which are gradually transformed into hard law. In the second part, the analysis focuses on the evolution of International Environmental Law, where it can be verified that soft law plays an extremely important role for its development. The instruments of soft law, especially those produced during the UN Conferences, were fundamental for changing the behavior towards environment protection, which became a relevant concern for mankind. An example of this influence of soft law was demonstrated in the last part of this study, where it is analyzed the reception of the principles of the Rio Declaration by the Constitutions of the State-Parties of MERCOSUL. It was concluded that soft law is a new manner to advance in polemic topics and that it is can serve as a step before achieving a coactive and obligatory law. Besides, it is a gradual and necessary evolution so that something can be built in respect to environment protection. It can be noticed that the acceptance by multilateral diplomacy of other normative sources suggests that Law must correspond to the will of society. The instruments of soft law are a possibility for this goal. Nevertheless, it is not the case of transforming the instruments of soft law into hard law. Besides creating new rules of environmental protection, it is necessary to comply with the already existing rules. In this sense, the fact that the regulation is soft or hard is not capable of assuring that a rule will by complied with or not.