FGV Direito SP - CeDHE - Artigos Acadêmicos


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    Consultation and public participation in environmental licensing of development projects in Brazil
    (3rd UNITAR-Yale Conference on Environmental Governance and Democracy, 2014) Scabin, Flávia; Cruz, Julia Cortez da Cunha; Pedroso Junior, Nelson Novaes
    Recently, the Inter American Commission of Human Rights of the Organization of American States granted Precautionary Measures on behalf of affected indigenous groups against Belo Monte, the world's third largest hydropower plant under construction in the Brazilian Amazon, due to lack of effective participation. Likewise, there are many examples of infrastructure projects being implemented in Brazil without effective mechanisms of consultation and public participation capable of ensuring the rights of local communities. In Brazil, environmental licensing covers a range of tools that seeks to prevent, mitigate and compensate the impacts caused by development projects. The guarantee of transparency and participation, including the obligation of public hearings with local communities, is required to ensure the legitimacy of the process. Based on interviews with stakeholders, the present study points out the perception that public hearings have not been an efficient instrument for the purposes granted by law, due to its delayed performance and its inability to incorporate social demands. In relation to indigenous peoples, the UN Declaration on Rights of Indigenous Peoples reinforces the relevance of prior consultation with indigenous populations, especially regarding large-scale projects and obligates States to obtain their free and informed consent. The ILO Convention 169 extends this obligation to traditional populations. Although the Convention 169 has been ratified by Brazil and internalized by domestic law, its regulation is still being outlined. In conclusion, efficient consultation and public participation during the licensing process must be extended to impacted local communities as a whole, as well as redesigned to provide effective answers to the demands and expectations that emerge in these contexts.
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    The environmental and social impacts of dams: mapping the issues
    (Law Schools Global League (LSGL) Research Paper, 2014) Juss, Satvinder; Francavilla, Domenico; Özdural, Sanem; Poppovic, Malak; Augenstein, Daniel; Oder, Bertil Emrah; Murcott, Melanie; Scabin, Flávia; Silva, Victor Torre de; Usal, Zeynep Oya
    In 2011, the UN Guiding Principles on Business and Human Rights ('Guiding Principles') for the first time established an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. These were the product of many years’ research and extensive consultations by UN Special Representative John Ruggie involving government, companies, business associations and civil society around the world. The Guidelines described how states can better manage business and human rights challenges based on the three pillars 'Protect, Respect and Remedy' Framework: 1) the state duty to protect human rights, 2) the corporate responsibility to respect human rights, and 3) the need for greater access to remedy for victims of business related abuse. This common paper analyzes the challenges faced as a result of large-scale infrastructure projects, in particular dams. The experiences of five countries are considered – Turkey, Spain, Brazil, India and South Africa – in light of national and international law and the UN Guiding Principles. Dams present particular challenges. They are long-term projects, unlike other businesses. Their impact on local communities is more enduring, ranging from environment to social issues, from national development policies to the resolution of the country’s energy and resource needs, and they have potential human rights impacts, arising from land expropriation, to forced eviction, and to the displacement and resettlement of local communities, and the compensation of victims. But most importantly, they fall beyond John Ruggie’s important UN Guidelines on Business and Human Rights, making this current study especially significant for that reason alone. As we will see, the interests of foreign investors, international treaty obligations, as well as the demands of global institutions such as the World Bank are in addition also further factors that complicate the state’s response – political and legislative – to the challenges raised by dams. The experience of the five countries highlights how legislative, judicial, and executive initiatives have an increasingly important role to play in navigating around these myriad interests. Sections II and III of this paper focus on the legislative experiences of South Africa and Spain, respectively, while section IV explores the various challenges faced by Brazil in the protection of the rights of local population during the two phases of dam development: planning and bidding, and construction and outsourcing. Sections V and VI examine the legislative, political and judicial responses to the issues raised by large scale dam development in Turkey and India.
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    Processos de auditoria em direitos humanos e mecanismos de participação: lições e desafios advindos do licenciamento ambiental brasileiro
    (ARACÊ - Direitos Humanos em Revista, 2015-09) Scabin, Flávia; Cruz, Julia Cortez da Cunha; Hojaij, Tamara Brezighello
    Processos de auditoria em direitos humanos incluem mecanismos de participação e engajamento da empresa com as comunidades impactadas por suas atividades. A participação e o engajamento de comunidades já são exigidos no Brasil no contexto do licenciamento ambiental de grandes empreendimentos. O presente artigo se propõe a analisar essa experiência e a compreender os seus desafios, isso com o objetivo de fornecer orientações para o desenvolvimento de mecanismos semelhantes no âmbito de processos de auditoria em direitos humanos. Essa comparação permite concluir que, para garantir que a proteção aos direitos das comunidades impactadas seja efetiva, as ferramentas de participação devem ser utilizadas desde os momentos iniciais do planejamento e tomada de decisão de negócios e empreendimentos, devem envolver informação e capacitação da comunidade e os resultados dos processos de participação devem ser efetivamente considerados pelos mecanismos de tomada de decisão da empresa.