Human Rights and Justiciability a survey conducted in Rio de Janeiro (original) (raw)
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Critérios de judicialização de casos pela comissão interamericana de direitos humanos
The main objective of this work is to analyze the criteria used by the Inter-American Commission on Human Rights to submit cases before the Inter-American Court of Human Rights, having in mind that the first body is the only legitimate to present individual cases to the court. The IACHR functions as a negative filter of cases, both admitting petitions to processing and deciding which cases will be sent to the IACourtHR. However, despite the requirements set by the American Convention on Human Rights, not all cases that fulfill these criteria are judicialized, providing the body a blurred and not transparent performance. Because of that, the present work seeks to verify what other determining factors could influence IACHR decisions. Cases with determined characteristics, be they regarding the profile of the victims, the type of violation or the potential impact they could cause in the country or in the region, have more chances in being admitted to processing and, later, sent to the IACourtHR. In this scenario, this work also aims to verify the performance of human rights NGOs playing the role of representatives of the victims in the Inter-American Human Rights System, taking into account that they also use specific requirements to select which cases will have their support and defense. NGOs, acting through strategic litigation, have a leading role in the Inter-American system. The main question this work intents to answer is: to whom, after all, serves the Inter-American Human Rights System?
Global Jurist Topics, 2006
The recent judiciary reform in Brazil (Constitutional Amendment 45) added Paragraph (3) to Article 5 of the Brazilian Constitution. The new clause establishes that international human rights treaties if approved by three fifths of the members of the Parliament, in two readings in both Houses (Chamber of Deputies and Federal Senate), are to be incorporated into the Brazilian legal order as constitutional amendments. Contrary to what a significant number of Brazilian legal circles have asserted, the author argues that the judiciary reform, at least in regard to the matter of the status of human rights treaties in Brazilian domestic law, represents a backslide from the normative point of view when compared to what was originally established by the authors of the 1988 Constitution. This is so, because, from now on, rights established in treaties cannot be considered as equal in rank to rights originally established in the 1988 Brazilian Constitution, by the Constituent Power, but as rights originated from the Amending Power-a difference with substantial consequences from the Brazilian constitutional law point of view. Some controversial topics originated from the new Article 5 (3) are analyzed in order to stress the problems Brazilian legal profession will have to face to provide a stronger sense of openness of Brazilian law to the International Law of Human Rights.
The purpose of this book series is to publish high quality volumes on the history of law and justice. Legal history can be a deeply provocative and influential field, as illustrated by the growth of the European universities and the Ius Commune, the French Revolution, the American Revolution, and indeed all the great movements for national liberation through law. The study of history gives scholars and reformers the models and courage to question entrenched injustices, by demonstrating the contingency of law and other social arrangements. Yet legal history today finds itself diminished in the universities and legal academy. Too often scholarship betrays no knowledge of what went before, or why legal institutions took the shape that they did. This series seeks to remedy that deficiency. Studies in the History of Law and Justice will be theoretical and reflective. Volumes will address the history of law and justice from a critical and comparative viewpoint. The studies in this series will be strong bold narratives of the development of law and justice. Some will be suitable for a very broad readership. Contributions to this series will come from scholars on every continent and in every legal system. Volumes will promote international comparisons and dialogue. The purpose will be to provide the next generation of lawyers with the models and narratives needed to understand and improve the law and justice of their own era. The series includes monographs focusing on a specific topic, as well as collections of articles covering a theme or collections of article by one author.
This article aims to show how Brazilian institutions are coming to the conclusion that the crimes perpetrated by state agents during the Brazilian dictatorship of 1964–1985 are crimes against humanity. This conclusion is now being reflected in few judicial rulings but, paradoxically, in several institutional opinions (delivered by prosecutors, truth and reparatory commissions). The article provides an approach to the historical context of Brazilian dictatorship and the transitional justice measures that came after that exception period. An overview of how criminal responsibility for crimes perpetrated by Brazilian public agents was put aside during several decades will have a climax in the Brazilian Federal Supreme Court (Brazilian Supremo Tribunal Federal) holding of 2010. On the flip side, the condemnation of Brazil by the IACtHR in the Gomes Lund Case will be followed by the incorporation of the notion of crimes against humanity. In conclusion, it will be possible to ascertain that Brazilian institutions started to conform to the normative demands of international human rights law concerning criminal individual responsibility, even if judicial authorities obstinately resisting it.
Brazil and the Inter-American Human Rights System
Let me start by thanking Paulo Abrão, and Marcelo Torelly in particular, for the very kind invitation. It is a pleasure to be here. I very much look forward to the discussions as many of the themes that I would like to cover involve issues on which you are the real experts.
Human rights defenders are the protagonists in bolstering democracy and undertaking human rights change. As they face up the establishment and challenge the dominant groups controlling economic and political power, human rights defenders are more often than otherwise targets of state and non-state violence and, consequently, they need protection. Yet, what does Brazilian law say about the protection of human rights defenders? To whom belongs the obligation to protect human rights defenders in Brazil exactly? While considering the interaction of international law, politics and national law vis-à-vis the protection of human rights defenders fighting for democracy, human rights and social justice, this paper conducts an analysis of the legal framework for the protection of human rights defenders at the level of Brazilian jurisdiction. It does so in order to contend there is a legal obligation for the Brazilian State to protect human rights defenders and that there is a series of rights that are crucial for human rights defenders to be able to conduct their activities. The final section presents a brief conclusion in which this paper’s discussions are recapitulated. Keywords: Human Rights; Human Rights Defenders; Brazilian Law.
Human rights defenders play a crucial role in strengthening democracy and bringing about human rights change. As they challenge dominant groups that control the economic and political powers, human rights defenders are frequently victims of state and non-state violence and, consequently, they are in constant need of effective protection. However, what do international, regional and Brazilian law say about the protection of human rights defenders? To whom belongs the obligation to protect human rights defenders exactly? While considering the interplay of international law, politics and national law in the protection of human rights defenders who are fighting for democracy, human rights and social justice locally, regionally and globally, this paper conducts an analysis of the legal frameworks for the protection of human rights defenders at the level of United Nations (UN) and Organisation of American State (OEA) human rights systems as well as Brazilian jurisdiction. It does so in order to argue that the Brazilian State has an obligation to protect human rights defenders and must adopt robust means of doing this, embracing their work as opportunity rather than a threat in building up a democratic society, as well as that there is a series of rights that are crucial for human rights defenders to be able to conduct their activities. The final section presents a brief conclusion in which this paper’s discussions are recapitulated. KEYWORDS: Human rights defenders. International human rights law. Brazilian law.
Brazil, (Post-)Transitional Justice, and the Inter-American Human Rights System
This paper examines the Inter-American Human Rights System and its relevance for human rights protection in Brazil. The focus of the paper is not primarily legal or jurisprudential. Rather it locates the Inter-American System in its relevant political context to try to understand the various ways in which the System matters. The paper is particularly concerned with current processes of post-transitional justice in Brazil. By this I mean the “prospects for the revision of [the] transition-era human rights settlement” in Brazil. More specifically, the paper emphasises what types of transitional justice policies may be required from Brazil in light of the Gomes Lund ruling by the Inter-American Court of Human Rights from November 2010. It also draws out some key implications of what the ruling, and the Brazilian government’s response to it, tell us about the prospects for and limitations on Brazilian post-transitional justice, and arguably, Brazilian democracy more broadly.