Here on the IDP Blog , we've studied that the 1988 Federal Constitution contains a list of fundamental rights and guarantees.

We explained that constitutionally guaranteed rights are not limited to those inscribed therein, but also include those derived from international treaties to which Brazil is a party, as stated in Article 5, § 2, of the Constitution of the Republic. 

This also includes human rights treaties and conventions. Regarding their hierarchy, we have presented two understandings: one from specialized legal literature and the other from the winning vote of the Brazilian Supreme Court in Habeas Corpus 87.585, from December 2008.

But what are Human Rights? What is their purpose? Who are they intended for?

In this text, we will explore these questions and discuss two myths surrounding Human Rights that we need to deconstruct.

Come on!

"Human rights for decent humans"? "Rights of the thugs"? Is that really how it works?

There is no single definition of Human Rights. They can be viewed from the perspective of various fields of knowledge, and take on different forms – even because the notion of Human Rights is the result of a long historical process.

They weren't born all at once, nor are they static.

As Flávia Piovesan, a professor at IDP, says: the protection of Human Rights is a construct, a human invention, that is subject to continuous development according to the limits of political viability and intellectual reasonableness of each era.

Given these considerations, we can understand Human Rights as a set of rights that protects and guarantees that every person can live with dignity. They are universal, inalienable, interdependent, and indivisible.

Three of its main principles are the dignity of the human person, equality, and freedom.

Everyone deserves equal respect, despite the numerous biological and cultural differences that distinguish them from one another. That is why no individual, race, ethnicity, sex, social class, sexual orientation, gender identity, religious group, or nation can claim to be superior to others.

In this sense, Human Rights also aim to guarantee that everyone has a life free from arbitrariness and violence, so that they can develop fully and participate in all aspects of community life.

Human rights include a range of civil and political rights, such as the right to freedom of expression, freedom of assembly and association, due process of law, and protection against discrimination and violence.

They also include economic, social and cultural rights, such as the right to education, health, food, housing and work.

It is important to remember that even those who commit crimes or break the law are still human beings and have rights that need to be protected.

Let's recall some constitutional rights and guarantees contained in Article 5 of the Constitution of the Republic, specifically concerning criminal matters:

• non-existence of a special court or tribunal;
• full right to defense within the jury system;
• The absence of a crime without a prior law defining it, or a penalty without prior legal stipulation;
• The impossibility of applying criminal law retroactively, except to benefit the defendant.
• The absence of death penalties (except in cases of declared war), perpetual sentences, forced labor, banishment, or cruel punishments;
• Prisoners, both male and female, are guaranteed respect for their physical and moral integrity;
• Female prisoners are guaranteed conditions that allow them to remain with their sons and daughters during the breastfeeding period;
• No one can be prosecuted or sentenced except by the competent authority;
• Full defense and the right to challenge evidence are guaranteed to litigants and defendants in general, with the means and resources inherent to it; and
• No one can be considered guilty until a final and unappealable criminal conviction is reached.

However, it is important to emphasize that the protection of Human Rights does not mean impunity for those who commit crimes or violate the law.

The legal system must ensure that people are held accountable for their actions and that appropriate punitive measures are applied, without violating or disrespecting rights.

"Will Human Rights end Brazil's sovereignty?" Is that possible?

Many people wonder whether International Human Rights Law intends to disregard domestic law and infringe upon national sovereignty.

In this regard, Piovesan explains that Constitutional Law and International Law have begun to interact in order to safeguard the same value: the primacy of the human person. 

This means that, in current times, conflict resolution, the protection of rights, and the determination of duties, regulated by domestic law, are part of a system that does not exclude the international order.

Ultimately, national sovereignty does not mean unlimited state power. Currently, the basic premise of the rule of law prevails, according to which the state acts within certain limits, established internally by the domestic legal system and externally by international law.

National constitutions, on the one hand, have opened their legal systems to international treaties for the protection of human rights, regulating their incorporation and application.

This is precisely what the Brazilian Constitution did in Article 5, § 2: it established dialogical relations of harmonization between national sovereignty and International Human Rights Law.

States themselves, when ratifying a human rights treaty, relinquish a portion of their sovereignty in order to safeguard the rights and freedoms of those under their jurisdiction.

On the other hand, international systems have begun to reinforce the protection of constitutional values, providing an additional , supplementary layer of protection for the rights that national law seeks to safeguard against abuses and authoritarianism.

Thus, the applicable rule is, in principle, the domestic one. In case of conflict between a domestic rule and an international treaty, and if the international treaty provides greater protection to the citizen, it is the treaty that should prevail over domestic law.

Conversely, if the domestic law of a State party is compared with that contained in an international human rights treaty, and the domestic law is found to be more protective, it should be applied to the detriment of the international law.

This is thanks to the pro homine or pro persona principle , which means the principle in favor of man or the principle in favor of humanity. It is a legal principle that implies that laws and decisions must be interpreted and applied in a way that protects human rights and the dignity of individuals.

In short, he seeks to ensure that Human Rights are always put first, in any situation.

The result of the interplay between domestic law and international human rights law was the creation of a multi-level system for the protection of the human person, with complementary mechanisms, each with its own rules and operation.

Stay tuned to the IDP Blog, because we also discuss Regional and Global Systems for the Protection of Human Rights.

Are you interested in this topic? Do you want to know more?

Enroll in the Postgraduate Program in Constitutional Law at IDP and deepen your knowledge of Human Rights and the International Protection of Fundamental Rights.

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References

BARROSO, Luís Roberto. Constitution and international treaties: some aspects of

The relationship between international law and domestic law. In : MARINONI, Luiz Guilherme;

MAZZUOLI, Valerio de Oliveira (Coords.). Conventionality control: a

Latin American panorama: Brazil, Argentina, Chile, Mexico, Peru, Uruguay. Brasília:

Gazeta Jurídica, 2013, pp. 147-180.

BOBBIO, Norberto. General Theory of Politics: Political Philosophy and the Lessons of the Classics. Rio de Janeiro, Campus, 2000.

BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil of 1988.

PIOVESAN, Flávia; CRUZ, Julia Cunha. Course on Human Rights: Inter-American System. São Paulo: Grupo GEN, 2021.

PORTELA, Paulo Henrique Gonçalves. Public and Private International Law

including concepts of Human Rights and Community Law . Salvador: Ed.

Juspodivm, 2011.

SALAZAR, Elard Ricardo Bolaños. Fundamentals of Conventional Control:

Omnipresent International Human Rights Law. VOX JURIS , Lima,

v. 37, n. 1, 2019, p. 57-66.