Legal fragmentation and global environmental law
| Autor | Leandro Caletti - Márcio Ricardo Staffen |
| Cargo | Master in Law by Faculdade Meridional (IMED). Professor of the Law College (undergraduate course) for IMED. Professor of the Lato Sensu Law Graduation Program for IMED. Member of the 'Transnacionalismo e Circulação de Modelos Jurídicos' (Transationalism and Broadcasting of Legal Models), 'Ética, Cidadania e Sustentabilidade' (Ethics, ... |
| Páginas | 279-310 |
279
Veredas do Direito, Belo Horizonte, v.16 n.34 p.279-310 Janeiro/Abril de 2019
LEGAL FRAGMENTATION AND GLOBAL
ENVIRONMENTAL LAW
Leandro Caletti
Master in Law by Faculdade Meridional (IMED). Professor of the Law College (undergra-
duate course) for IMED. Professor of the Lato Sensu Law Graduation Program for IMED.
Member of the “Transnacionalismo e Circulação de Modelos Jurídicos” (Transationalism and
Broadcasting of Legal Models), “Ética, Cidadania e Sustentabilidade” (Ethics, Citizenship
and Sustainability), and “Direitos Culturais e Pluralismo Jurídico” (Cultural Rights and Legal
Pluralism) research groups, linked to the Stricto Sensu Law Graduation
Program from IMED. Attorney (OAB/RS).
E-mail: leandro.caletti@imed.edu.br
http://dx.doi.org/10.18623/rvd.v16i34.1455
Doctor in Public Law (Università degli Studi di Trento - Italy). Doctor and Master in Legal
Sciences for Universidade do Vale do Itajaí (Univali). Post-Doctorate internship in Law
at Università degli Studi di Perugia (CAPES/PDE Scholarship 88881.120155/2016.1).
Graduated in Law by Univali. Researcher for the Brazilian National Justice Council (CNJ).
Permanent Professor of the Stricto Sensu Law Graduation Program for IMED. Coordinator of
the Stricto Sensu Law Graduation Program (2014-2018).
ABSTRACT
the appearance of a Global Environmental Law in the scenario of legal
brought about by globalization and transnationalism; (2) to identify the law
and non-Law frameworks; and (3) to specify, according to this background,
the space of an intended Global Environmental Law. As a research
problem, the following question was formulated: Is there a space, in the
fragmented legal phenomenon, for the emergence of a global law of an
soft law cases and regulated self-
regulation. To achieve that, the study was based on the deductive method
and bibliographical research, on category and the operational concept as
research techniques.
Keywords: self-regulation; global Environmental Law; soft law.
LEGAL FRAGMENTATION AND GLOBAL ENVIRONMENTAL LAW
280 Veredas do Direito, Belo Horizonte, v.16 n.34 p.279-310 Janeiro/Abril de 2019
A FRAGMENTAÇÃO JURÍDICA E O DIREITO AMBIENTAL GLOBAL
ABSTRACT
Palavras-chave:
Leandro Caletti & Márcio Ricardo Staen
281
Veredas do Direito, Belo Horizonte, v.16 n.34 p.279-310 Janeiro/Abril de 2019
FOREWORD
At present, the fragmentation of the juridical phenomenon is
as conspicuous a circumstance as its roots, based on globalization and
transnationalism, whose initial driving forces were, respectively, world
economy and commerce. This globalized transnational structure and its
regulations managed on the fringes of National Governments, hitherto the
holders of the sovereign power do dictate the law and freely apply it.
away from the latter the power of solely dictating the law and applying it
autonomously. Later on, noticing that the globalized transnational structure
in the fringes of the States, it accurately situates the Law and non-Law
scenarios, the latter being driven by the establishment of a nearly solely
rationale: Legislative production stems directly from social and economic
development, due to new demands and political, technical, ideological
and legal pressures, so that the State itself ends up taking advantage of
“transnational private laws” to impart them with governmental facets.
At the end of this paper, soft law
as Global Environmental Law resources.
1 THE PROCESS OF FRAGMENTATION LAW IS CURRENTLY
UNDERGOING
As already announced, it is well known and agreed upon that
Law is undergoing a phenomenon of fragmentation whose roots are
embedded in globalization1 and, consequently, in the transnationality2 of
1 “Globalization, a process considered inescapable and that moves towards the ‘open society’ or the
‘Great Society’, whether we prefer Popper’s or Hayek’s phrase, tends - which is no longer a discovery
- to invade all the spaces of social, economic and political life. [...] Once considered as multinationals,
companies - which nowadays changed into true transnational corporations - have become capable of
of an economy that has become planetary. Players currently taking center stage in global economic
relations largely escape national and international regulation. A lex mercatoria has been established;
rules that pretend to be international and ensure the spreading of free trade are created on a daily basis,
imposing themselves on national rights and turning into international trade law. The State, which in
principle still holds the monopoly of law, appears as a structure that is increasingly absent when we
deal with actual legal relationships, which are increasingly moving on the fringes of “State law”. (AR-
NAUD, 2006, p. 18).
2 “The phenomenon of transnationalization is the new worldwide situation, arising mainly from the
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