La Perspectiva Pro Persona - Fabián Salvioli

Understanding the Role of the State in Human Rights

Introduction and Context

• The speaker expresses gratitude to Jorge and acknowledges the audience, including those studying international relations.

• The speaker feels a sense of belonging at the Inter-American Institute of Human Rights, reflecting on personal connections made during previous discussions.

• The topic of discussion is significant for the speaker, linking it to their doctoral thesis work.

Key Premises on State Functionality

• The speaker introduces seven key premises regarding state functions and human rights, emphasizing a pro-person perspective.

• They argue that when states were created, human rights were not initially considered; however, this outdated view should not persist.

Importance of Human Rights in State Functions

• The function of the state is fundamentally about respecting and guaranteeing human rights; failure to do so renders the state ineffective.

• Public officials must operate within a human rights framework; otherwise, they risk international accountability for violations.

Secularism in Public Service

• The exercise of public functions must be secular; personal beliefs should not interfere with fulfilling state responsibilities.

• An analogy is drawn comparing religious beliefs preventing someone from performing their duties as a lifeguard.

International Human Rights Framework

• International human rights law includes various instruments that integrate into domestic legal systems through constitutional frameworks.

• States are obligated to comply with ratified treaties in good faith; democracy cannot exist where systematic violations occur.

Conclusion: Human Rights as State's Core Purpose

• Respecting and guaranteeing human rights is essential for democracy; mere voting does not equate to substantive democracy if rights are violated.

The Role of the State in Guaranteeing Rights

Importance of State Structures

• The state must ensure that all branches, including legislative, judicial, and administrative powers, as well as private services fulfilling state functions (like education and health), uphold rights without invoking objections to conscience.

• Article 28 of the San José Pact emphasizes that the state should function as a mechanism for guaranteeing rights rather than violating them.

International Oversight and Critique

• Every political decision made by the state should align with the goal of protecting human rights; states voluntarily engage in international procedures that establish cooperation and oversight mechanisms.

• Despite criticisms towards international bodies like the Inter-American Court, their contributions have significantly improved societies across the continent.

Contributions of International Human Rights Law

• The establishment of international supervision mechanisms is considered one of the most significant contributions of contemporary international law to humanity's history.

• These mechanisms monitor whether states violate human rights within their jurisdictions, emphasizing that human rights are a crucial ethical legacy.

Development of Human Rights Standards

• Various international organs produce reports, opinions, and judgments which contribute to standards in human rights law alongside academic work in this field.

• This body of work forms an essential roadmap for states to follow in fulfilling their obligations toward society regarding human rights.

Implementing Human Rights Policies

Respecting and Guaranteeing Rights

• It is clear that states must respect and guarantee human rights; however, determining how to do so effectively remains a challenge.

Pro Persona Perspective

• The "pro persona" perspective serves as an interpretative method for legal practitioners aimed at ensuring compliance with public policy objectives related to human rights.

Elements of Pro Persona Perspective

• This perspective incorporates dynamic elements that evolve over time. For instance, it has adapted concepts such as the right to truth within judicial guarantees or expanded disability rights following new paradigms established by international conventions.

Core Principles

• The principle pro persona (or pro homine for inclusive language), along with its interpretation methods, form the heart of this perspective but are often confused with it.

Understanding the Pro Persona Principle in International Law

The Importance of Rights and Guarantees

• The discussion begins with Article 29 of the San José Pact, emphasizing that states cannot deny the application of international instruments that guarantee more rights.

• The principle pro persona is highlighted as a crucial safeguard for individuals against public power, advocating for broad interpretations of rights.

Interpretation and Application of International Law

• A critique is made on classical international law, suggesting it fails to effectively address contemporary issues; likening it to contradictory ideologies.

• The speaker argues that modern international law has become more democratic due to broader participation beyond state structures.

Object and Purpose Over Literal Interpretation

• Emphasizes that the object and purpose of legal norms should guide public policy rather than strict literal interpretations which may lead to unreasonable outcomes.

• Cites Article 31 from the Vienna Convention on Treaties, arguing that a literal interpretation contradicting the object and purpose lacks logic.

Security Jurisprudence: State vs. Individual Rights

• Asserts that individual security rights are paramount over state security concerns, urging states to prioritize human rights in their policies.

• Highlights that interpretation must evolve with time rather than remain static based on historical contexts.

Non-discrimination Principles in International Instruments

• Discusses how gender discrimination is implicitly prohibited under the San José Pact despite not being explicitly mentioned.

• Calls for state officials to enhance their competencies in guaranteeing rights actively rather than passively fulfilling duties.

Good Faith Principle in International Obligations

• Introduces good faith as essential for applying international standards; emphasizes its binding nature contrary to some beliefs about non-binding opinions.

• Argues all decisions by international courts are rooted in consultative opinions, reinforcing their binding character.

Policy Making Beyond Fear of Condemnation

• Advocates for a shift from fear-based compliance with international obligations towards genuine commitment to human rights protection as a core function of public service.

Principles of Public Policy and Human Rights

The Principle of Useful Effect

• The principle of useful effect emphasizes that public policy decisions should generate appropriate outcomes, aligning with the French perspective on effective governance.

• If a health service does not guarantee the right to health, it indicates a failure in decision-making and implementation.

Evaluation and Practical Measures

• Effective measures must be taken based on results evaluation; failing to ensure rights signifies non-compliance with the principle of useful effect.

• The concept of "cross-fertilization" suggests learning from other entities or methods that may yield better results in public service delivery.

Learning from Others

• Acknowledging external successes is crucial for improving public work; one must adapt and evolve rather than remain stagnant.

• Reflecting on experiences within international human rights bodies reveals a tendency to overlook external advancements, which can hinder progress.

Interaction and Integration

• Harmonizing national and international mechanisms is beneficial; this integration helps avoid isolation in policy-making processes.

• Cross-fertilization should not lead to regression; if external practices are less effective, maintaining one's standards is essential.

Indivisibility and Interdependence of Rights

• An integral examination of situations by public authorities is necessary, rejecting outdated divisions between civil/political rights and economic/social/cultural rights.

• All fundamental rights hold equal importance; no hierarchy exists among them. For instance, freedom of expression cannot be deemed less important than the right to food.

Impact of Rights Violations

• Violating one right negatively affects others; thus, policymakers must adopt comprehensive views when addressing human rights issues.

• Judicial systems need to apply criteria for comprehensive reparations considering all dimensions affected by violations.

Universal Principles in Human Rights

• Universalism and non-discrimination are fundamental principles in human rights law that cannot be derogated under any circumstances.

• The principle of non-discrimination has evolved over time, now encompassing various grounds such as nationality, age, gender identity, socioeconomic status, etc.

Expanding Non-discrimination Principles

• As society evolves, new forms of discrimination will emerge that require recognition within the framework of non-discrimination principles.

Progressive Development Principle

Inter-American Human Rights: Progressivity and Ideological Positioning

The Concept of Progressivity in Human Rights

• The Inter-American system emphasizes an optimistic approach to the progressivity of human rights, which also reflects an ideological stance. This principle is crucial for public policymakers who must advance rights.

• It is essential for the judiciary to adopt evolutionary interpretations of rights, avoiding any decisions that could lead to regression in human rights protections.

Current Challenges and Threats to Human Rights

• We are facing complex times with numerous threats to human rights, including fundamentalist views that deny or discriminate against these rights. There is concern that such attitudes will intensify over time.

• The ninth postulate emphasizes non-regressivity in human rights, advocating for differentiated approaches based on specific contexts and gender perspectives.

Gender Perspectives and Inclusivity

• A feminist perspective is fundamental when working on women's human rights; one cannot be a good person without being a feminist. This applies not only to women's issues but also extends to LGBTQ+ communities.

• Issues related to machismo must be addressed as they permeate all aspects of society. International bodies often overlook these perspectives, but progress is being made against this backdrop.

Accessibility and Special Considerations

• Important measures include reasonable adjustments, universal design, accessibility, and autonomy in decision-making regarding individuals with disabilities.

• Special duties exist concerning children and adolescents' protection laws as well as active aging principles for older adults; multiple frameworks may need application simultaneously.

Public Policy Implementation and Training

• Policymakers have significant responsibilities; creating protocols for state officials regarding public policy can enhance adherence to human rights standards.

• Human rights should be the ultimate goal of the state. Public functions require expertise in human rights law, necessitating focused training during recruitment processes.

Evolving Perspectives on Human Rights

• Continuous evolution within the pro-persona perspective requires adaptation based on new contributions addressing emerging needs within society.

• Individuals unable or unwilling to uphold this perspective should not hold positions within the state due to potential harm caused by their actions or beliefs towards citizens' welfare.

Decision-Making Framework

• Questions guiding decision-making should align with ensuring that choices maximize rather than restrict individual rights while maintaining legal legitimacy.

• Decisions must consider various approaches while adhering strictly to international standards of non-regressivity in human rights guarantees.

Comprehensive Analysis Required

• An integrated examination of issues ensures consideration of universality, non-discrimination, indivisibility, interdependence among human rights across different demographics (e.g., gender).

La Responsabilidad del Estado en la Protección de Derechos Humanos

Importancia de la Inclusión de Todos los Derechos

• Se enfatiza que las políticas públicas deben considerar todos los derechos, incluso aquellos que no han sido invocados explícitamente. Esto es crucial para salvaguardar los derechos humanos en su totalidad.

• Se menciona que tanto los estados como los órganos internacionales a menudo carecen de una visión integral sobre derechos humanos, lo que puede llevar a decisiones incomprensibles.

El Rol del Poder Judicial y la Educación Jurídica

• El poder judicial tiene la responsabilidad ineludible de garantizar y mejorar el disfrute efectivo de los derechos humanos, sin excusas por falta de instrumentos legales.

• Las universidades y facultades de derecho también tienen un papel fundamental; se argumenta que si el poder judicial falla, esto refleja deficiencias en la enseñanza del derecho.

Necesidad de Reformas Universitarias

• Se aboga por una reforma curricular en las facultades de derecho con un enfoque en derechos humanos, destacando que es momento para una nueva reforma universitaria en América Latina tras un siglo desde la primera.