Friday, June 8:
In Latin American reactions against dictatorships, there was an emphasis upon both democracy and rights. At that time, the discourse of rights was primarily aimed at protecting against oppression by the state. Rights were seen as an absolute and non-negotiable barrier against the state and undergirded the demand that the dictators be brought to justice and held criminally accountable. After the transition and the consolidation of democracy, the claim for rights has grown increasingly expansive. The rights are not simply to protect against torture or kidnap but are to enhance the autonomy of the individual and embrace such matters as abortion, the environment and consumer activities. Seen from this perspective, rights seem to be in tension with majoritarian processes and to that extent pose a conflict with the democratic ideal. Is there in fact an inherent conflict between democracy and rights? Does the expansion of the domain of rights necessarily shrink the domain of politics? Are these problems and issues uniquely intense to the Latin American experience, or do they have their counterparts elsewhere in the world?
- Victor Ferreres Comella
- Andrés Jana
- Carol Rose
- Victor Ferreres Comella
Do fundamental rights restrain private as well as governmental actors? There is a strong European tradition which answers this question in the affirmative. This tradition holds that the state has a responsibility to affirmatively protect fundamental rights from all threats, even those posed by private actors. This tradition sharply contrasts with the North American one which envisions the state in more negative terms: The state shall not interfere with peoples rights but has no affirmative obligation to protect them against private interference. Fundamental rights run against the state but not between individuals. This panel will explore these two different traditions and assess their normative value. What are the negative consequences of such an affirmative vision of the state? Some may think that it threatens liberty. Others may claim that the capacity of individuals to assert fundamental rights against other individuals will destabilize the constraining force of the private law tradition. Aside from these larger normative issues, this panel should also address the question whether there are special conditions of the Latin American experience that make it more difficult to accept the European vision of the state as an affirmative guarantor of fundamental rights. Some may see the presence of the dictatorial state in Latin American history as a reason to be especially wary of the state ever protecting fundamental rights. In addition, recent economic reforms in Latin America have resulted in a turn towards a market economy and a lessening of the role of the state in economic matters. It could be argued that this development has made it imperative that private actors which have grown in power be bound by fundamental rights, while at the same time making it more difficult to turn to the state as an affirmative guarantor of those rights. Although demands for equality have traditionally supported state activism, as the commitment to equality has waned, so might the commitment of the state to constrain economic actors, for example, from interfering with one another. In this context there appears to be very little room for the state as a promoter of rights.
- Marcelo Alegre
- Fernando Atria
- Daniel Bonilla
- Marcelo Alegre
Effective protection of fundamental rights essentially depends of the existence of broadly base societal support, a culture of respect for rights. The basic question for this panel is what institution arrangements are most likely to foster the development of this culture and to sustain it. In the United States, an understanding has evolved concerning the primacy of the judiciary in protecting fundamental rights. A question can be raised whether this tradition is in fact the most efficacious way of making rights real, whether in the United States, Latin America or elsewhere. One may fear that judicial primacy may retard the capacity of the legislative and executive branches to take full responsibility for the protection of fundamental rights. Such an institutionalization may also introduce a legalistic quality to what otherwise might be more open-ended public debates and thus interfere with the development of a broad based culture of rights. Rights become the special possession of lawyers and courts; ordinary citizens and political institutions may be much more hesitant to invoke rights or to accept their binding force. Aside from its social consequences, the practice of judicial supremacy introduces problems regarding the very idea of fundamental rights and its relationship to positive law. Relying upon a written constitution justifies the judiciary's role but it puts into issue the source of fundamental rights which may be understood to be independent from positive law. Moreover, equating fundamental rights with constitutional rights makes them vulnerable to repeal and modification through the amending process which typically accompanies every constitution. A regime of judicial supremacy gives the judiciary the last word in defining and protecting fundamental rights. Is this the best institutional arrangement for the protection of constitutional rights? If not, what alternative institutional arrangements might meet this purpose?
Saturday, June 9:
Is there an internal integrity to the idea of rights that imposes limits upon its invocation? This question arises from the increasing use of the language of rights in contemporary social controversies. One aspect of this question concerns the question for inclusion or exclusion within the realm of rights. For example, is it a condition for inclusion that the right be universally possessed or is it possible that the right be possessed only by a sector of society? Do rights belong exclusively to individuals or can groups also possess rights? If so, what kinds of groups, groups based on fixed status or can these groups be freely constituted? A second question is whether all rights must be in harmony with one another and if not, on what basis the conflicts may be resolved. Some rights theorists insist on a hierarchy of values but on what basis is that hierarchy to be constructed? Some see the concept of a fundamental right as a basis for creating the hierarchy but if so it presents the need for establishing a criterion for fundamentality. A third question arises as to what consequences follows from the inclusion in the realm of rights. Some proponents of social and economic rights argue that it is sufficient to treat these demands as aspirations rather than an enforceable claims. But a doubt arises as to whether this is consistent with the internal logic of rights. It may be that the very idea of rights requires some commitment on the part of society that the bearer of a right have an enforceable claim in some public authority which further presupposes that there be a precise content to the right and also that the society have sufficient resources to make the right a practical reality. Against these questions, a view may be expressed that rights have no internal limiting conditions but in fact are essentially fluid and can be used as instruments for furthering any policy.
There has been an increasing protection in international law for fundamental rights. Sometimes these international endeavors use the language of human rights, but it is not clear what distinction, if any, there is between human rights and fundamental rights. Should there be a universal conception of fundamental rights? Should this conception be expressed through international covenants or alternative means? A question has been raised about the relationship between international obligations and national law, particularly whether international agreements supercede conflicting national law. In the United States, the conflict has been resolved in favor of national law, but in Latin America, there has been increasing tendency to subordinate national law to international covenants. What are the consequences of this development both for democratic politics and the power of the judiciary? Will this development significantly enlarge the power of national judges? For judges on international tribunals, what are the institutional sources to assure their accountability? What are the constraints that they should adopt? What are the consequences of systems that may be adopted to coordinate interpretations by national and international judges?
Sunday, June 10:
- Alberto do Amaral Júnior
- Antonio Bascuñan Rodriguez
- Eugenio Bulygin
- Alberto do Amaral Júnior
This panel will explore whether there is a connection between the protection of fundamental rights and the obligation to punish violators. Is it necessary criminally to punish every violation of a fundamental right? Should we make a distinction among violations in terms of their gravity or the magnitude of the violations? Does the greater magnitude demand more stringent punishment or less? Are distinctions permissible in terms of the particular rights that are involved, for example, right against genocide, right against censorship, right against racial discrimination? In some instances where the obligation to prosecute is recognized, there is a demand to abandon the protections traditionally afforded in the criminal law regarding such matters as specificity of the indictment, the problem of retroactivity, the right to confront your accuser or the method of acquiring jurisdiction. Also, in some settings, amnesty laws and similar measures have been enacted to shield violators of fundamental rights from criminal prosecution. What effect, if any, should be given to these measures either in national or international tribunals? One could argue that such measures should be treated as a nullity when fundamental rights are at issue. All of these issues have been familiar subjects of conversation at previous SELA meetings, but they continue to have contemporary relevance and perhaps recent world developments will shed new light on them.
