in Santiago in 1998 embraced promotion of the Universal Declaration of Human Rights and its regional counterpart, with particular reference to women, migrant workers, and indigenous peoples.24 We are convinced that a basic commitment to human rights will emerge as part of a completed FTAA.
After eight productive years of work, the FTAA became a casualty of its own ambition in 2003, with Brazil effectively breaking off talks when it became clear that the United States was not going to put its huge agricultural subsidies and its powerful anti-dumping law on the negotiating table. In essence, FTAA talks are on hold until trade ministers can take these two subjects to the next liberalization as part of the WTO’s Doha Round of multilateral negotiations, which also have broken off because of protectionist pull-backs in the leading developed countries.
How may we summarize the place of regional trade agreements in the Hemisphere in the human rights and trade interface? In addition to the promise that they hold as ubiquitous instruments that may more easily than the WTO begin to address the intersection purposefully, now they serve human rights by buttressing national efforts to promote the rule of law, and with it, institutions and systems that hold government accountable for the treatment of its citizens.25
3
Global Laws, Local Lives
Basic Concepts and Legal Regimes of Human Rights Law in the Americas
3.1 Introduction
International human rights are essential predicates to life for human beings.1 They are rooted in moral, social, religious, legal, and political concerns for respect and dignity of individuals.2 Such rights are vital to personhood, to a human being’s identity.3 The human rights idea is a relatively recent one. There are strong disagreements regarding whether there is a single, universally applicable concept of human rights. While some insist on such universality, others urge a culturally relative view.4
The evolution of international rights of persons dates to the 19th and early 20th centuries. At that time, particularly with shifting national borders, states began to enter into treaties that protected the rights of minority populations within a state. Also, treaties that abolished the practice of slavery effectively were for the protection of individuals.
The watershed events for the emergence of the human rights framework followed the unparalleled Nazi atrocities of the Second World War. After Nuremberg, for the first time individuals, and not only states, were accepted as actors in the global sphere. In the post–Second World War era individuals are both objects and subjects of international law.
This narrative about the emergence of the human rights system has been critiqued as Northern and Western in perspective and scope. In response to the criticism, however, the human rights community has enabled a platform for broader participation—a platform in which the North/West domination has begun to cede to global participation. The North and South, East and West—with women at the forefront—have started efforts to work side by side to create an inclusive blueprint for the further development of human rights in the 21st century.
The consensus documents that make up this blueprint address issues ranging from the environment to education; from universality of rights to respect for cultural traditions; from population growth to economic growth and sustainable development; from gender equity and equality to the empowerment of women; from the role of the family to the role of the government; from health to migration; from equity among generations to the placing of people at the center of development; from the recognition that social development is both a national and international concern to the recognition of the need to integrate economic, cultural, and social policies to achieve desired ends; and from employment to affordable housing so that the health, education, and welfare goals of individuals, families, governments, and the global community can be met.
3.2 Theoretical Underpinnings of Human Rights Law
The origins of human rights can be traced to Greece and Rome; they have been identified with “premodern natural law doctrines of Greek Stoicism (the school of philosophy … which held that a universal working force pervades all creation and that human conduct therefore should be judged according to, and brought into harmony with, the law of nature).”5 After the Middle Ages, natural law became associated with theories of natural rights, although in medieval times natural law was viewed as imposing duties on, as opposed to granting rights to, “man.” The underpinnings of natural law are assumptions that there are laws existing in nature—both theological and metaphysical—that constitute a higher law identified with all humankind and that requires protections of individual rights. An underlying assumption of natural law is that there is a common human nature that presupposes the equality of all human beings.6 Of course, it is intrinsically contradictory that the idea of human rights developed at a time during which slavery and serfdom—concepts anathema to the notion of human rights, liberty, freedom, equality, and dignity—were legally accepted.7
It is noteworthy that from the early days, however, the language used to analyze or discuss these rights of “man” suggested that they were inalienable. For example, Locke argued that “certain rights self-evidently pertain to individuals as human beings (because they existed in ‘the state of nature’ before humankind entered civil society); that chief among them are the rights to life, liberty (freedom from arbitrary rule), and property; that, upon entering civil society, pursuant to a ‘social contract,’ humankind surrendered to the state only the right to enforce these natural rights, not the rights themselves; and that the state’s failure to secure these reserved natural rights … gives rise to a right to responsible, popular revolution.”8
The writings of St. Thomas Aquinas evince the religious foundations of natural law philosophy. Aquinas posited that all human laws derive from, and are subordinate to, the law of God. He viewed the law of nature as “a body of permanent principles grounded in the Divine Order, and partly revealed in the Scripture.”9 In his 13th-century writings, Aquinas even endorsed the notion that one sovereign can interfere in the internal affairs of another when one sovereign mistreats its subjects.10 Spanish theologians Francisco de Vitoria and Francisco Suárez carried forward the religious view of the natural law. They both recognized that beyond individual states, there existed a community of states—that is, international rules that, established “by rational derivation from basic moral principles of divine origin,” governed interactions between and among states.11
Hugo Grotius, a key thinker in the development of the law of nations (international law), was guided by natural law. As a “rationalist who derives the principles of the law of nature from universal reason rather than from divine authority,”12 however, his natural law concept was secular, based on a person’s rationality rather than revelation and deduction of God’s will.13 Grotius recognized the notion of state sovereignty over its subjects. Like Aquinas, however, he recognized that sovereignty was not an unfettered right. Grotius wrote that “if a tyrant … practices atrocities towards his subjects, which no just man can approve, the right of human social connexion is not cut off in such case.”14
Grotius provided a bridge to the positivists by distinguishing between natural law and the customary law of nations based on the conduct and will of nations. The “will of nations” was central to positivism, which relied “on the practice of states and the conduct of international relations as evidenced by customs or treaties” for the statement of the law.15 Positivism focused on states’ conduct—that is, what states did in practice rather then what occurred based on forces existing in nature. The shift to positivism corresponded to the rise of the independent and sovereign nation-state.16
The value of the positivists’ contributions lies in their recognition of the importance of organizing rules by established processes of the states. Once states authoritatively can formulate rules, they can protect human rights. Positivism’s weakness, however, lies in the fact that the values
