master of laws - human rights

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José Anastácio de Sousa Aguiar José Anastácio de Sousa Aguiar London Metropolitan University London Metropolitan University Master Of Laws: Master Of Laws: Human rights Human rights Human rights Human rights

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Page 1: Master of Laws - Human Rights

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José Anastácio de Sousa AguiarJosé Anastácio de Sousa Aguiar

London Metropolitan UniversityLondon Metropolitan University

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O tema Direitos Humanos, em especial o que se refere a sua efetiva implementação no âmbito internacional, é assunto recente. Foi na Declaração Universal dos Direitos Humanos, aprovada pela Assembléia Geral das Nações Unidas em 10

de dezembro de 1948, que efetivamente o seu ideário tomou forma e começou a existir. A sua aprovação, bem como a própria criação da ONU, foi refl exo direto da II Guerra Mundial. Os países fi nalmente se convenceram que o mundo não poderia fi car a mercê de governos autoritários e delirantes que colocassem em risco a própria existência da hu-manidade, ou pelo menos, do mundo civilizado.

É possível afi rmar que desde então muito foi feito para a efetiva implementação e respeito aos direitos do homem, entretanto em que pese os avanços alcançados, mui-to há por fazer. Por incrível que possa parecer o maior inimigo do referido ideal não é o próprio homem, mas sua personifi cação em (des)governos pelo mundo afora. Sim, a maior ameaça ao homem, desde as mais priscas eras, são os governantes. Esse assunto já foi brilhantemente abordado quando do estudo da real necessidade do Estado por notáveis pensadores, como Th omas Hobbes, Jean-Jacques Rousseau, John Locke e por que não citar Norberto Bobbio. Talvez seja possível concluir que o governo perde a sua legitimidade quando os interesses dos governantes se sobrepõem à liberdade do povo. Sim, cito liberdade e não qualquer outro bem social, pois como já disse Voltaire: “Prefi ro a liberdade ao pão.”

No extremo oposto, temos a Democracia como grande aliada dos Direitos Huma-nos. Um rápido olhar na história nos mostrará que os maiores benefícios auferidos pela humanidade são refl exos diretos da capacidade de uma sociedade se organizar em uma democracia.

Hodiernamente, a liberdade, e como via de conseqüência os Direitos Humanos, enfrentam uma nova ameaça: governos populistas travestidos de democracia. Ancorado em anseios populares legítimos, alguns governantes aproveitam-se do apelo popular para chegar ao poder e manter-se indefi nidamente. Suas primeiras vítimas são a imprensa e a classe média que são perseguidas por anteverem os malefícios que ditos “governos do povo” trarão ao próprio povo. Mal sabem esses auto-denominados “salvadores da pátria” que serão eles mesmos os primeiros a serem engolidos pelo monstro que eles criaram.

Muito temos a agradecer às gerações passadas que em muitos casos sacrifi caram a própria vida para não se submeterem a ideais totalitários que tornavam o povo escravo de interesses inconfessáveis de governantes sempre dispostos a ludibriar as massas com promessas falaciosas e megalomaníacas. É chegada a vez da nossa geração manter acessa a chama da liberdade e da democracia, e o seu preço será, por certo, a eterna vigilância na defesa a qualquer custo do maior dos bens dos direitos humanos: o direito a ser (e ser tratado como) humano.

Como dizia Fernando Pessoa, “o homem é do tamanho de seus sonhos”. Esta obra do jurista e fi lósofo Prof. José Anastácio de Sousa Aguiar é uma prova inconteste de que tudo se torna possível quando temos a coragem e a determina-ção de enfrentar os desafi os em busca de nossos sonhos. Este livro é o resultado de uma extensa pesquisa em um curso de mestrado em Londres.

Das lides de suas atribuições como professor e jurista o autor poderia ter escolhido diversos outros temas para sua pesquisa. Porém, motivado por sua agu-çada responsabilidade social e por sua grandiosa visão de futuro, preferiu apro-fundar suas refl exões sobre a criança e o adolescente. Analisar e trazer para deba-te os impactos das políticas de proteção à criança e ao adolescente demonstra a preocupação do autor com o futuro do Ceará e do país, além de ser um tema signifi cativamente oportuno, uma vez que faz parte das agendas dos organismos internacionais, como as Nações Unidas, União Européia, Banco Mundial e diver-sos outros, que dentre suas atividades está a elaboração e fi nanciamento de políticas com essa fi nalidade.

No Brasil, desde o fi nal do século passado, as crianças e os adolescentes passaram a contar com um estatuto que garante seus direitos e defi ne diretrizes para as demais políticas nos três níveis de governo. Porém, a luta deve continu-ar para que tais políticas sejam conside-radas uma questão de Estado e não de governo e para que não venham a sofrer descontinuidade que comprometam seus resultados.

O Dr. Anastácio nesta pesquisa apro-funda com muita propriedade muitas ou-tras questões e trás para o debate determi-nados pontos que servirão para a refl exão dos policy makers e responsáveis pelas po-líticas de desenvolvimento daqueles que representam o futuro desse país. Pois, jamais poderemos esquecer o que disse Karl Mannheim, sociólogo e professor da London School of Economics: “O que se faz

agora com as crianças é o que elas farão depois com a sociedade”.

Por isso, este livro além de trazer no-vos conhecimentos, chama a atenção para uma questão estratégica para o futuro do Ceará e do Brasil.Parabéns ao autor!

José Joaquim Neto Cisne

Curriculum do autorJosé Anastácio de Sousa Aguiar é Ad-

vogado da União, em exercício na Pro-curadoria da União no Estado do Ceará. Formou-se em Direito pelo Centro de Ensino Unifi cado de Brasília/DF (Uni-CEUB) em 1997. Pós-graduado pela Escola da Magistratura do Distrito Fe-deral em 1998. Ex-professor de Direito Constitucional e Administrativo da Asso-ciação de Ensino Unifi cado do Distrito Federal (AEUDF) e de diversos cursos de preparação para concursos públicos, em especial o Obcursos, em Brasília. Co-autor de 02 livros jurídicos: Questões Comentadas de Direito Administrativo e de Direito Constitucional, editados pela Atlas. Co-autor do livro sobre genealogia ‘Família Aguiar – 7 Séculos de História’ e autor do livro sobre fi losofi a ‘O Des-pertar para a Filosofi a’. Co-fundador em Londres do Latin American Issues Forum (LAIF). Mestre em Direitos Humanos pela London Metropolitan University. Di-plomado em profi ciência no idioma es-panhol pela Universidade de Salamanca na Espanha.

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Master Of Laws:Master Of Laws:

Human rightsHuman rights

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José Anastácio de Sousa Aguiar

Fortaleza2010

Master Of Laws:Master Of Laws:

Human rightsHuman rights

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Projeto Gráfi co e CapaGilberlânio RiosValdianio Macêdo

Impressão Expressão Gráfi ca

Contato com o [email protected]

Catalogação na FonteBibliotecária Perpétua Socorro T. Guimarães

CRB 3 801

A 282 m Aguiar, José Anastácio de Sousa Master of Laws: Human Rights./José Anastácio de Sousa Aguiar.- Fortaleza: Expressão Gráfi ca Editora, 2010. 190 p. (Texto em Inglês, prefácio em Português) 1.Direitos Humanos- Brasil I. Título

ISBN 978-85-7563-555-1 CDD: 341.481

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Dedicatória

“Minha gratidão a Deus, aos fa-miliares e amigos que direta ou indiretamente contribuí-ram para a elaboração deste livro e a minha querida espo-sa Soraya Aguiar, pela existência tão doce. Dedico a todos aqueles que se interessem pelo tema.”

José Anastácio de Sousa Aguiar

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Sumário

Presentation..........................................................................................................9

Prefácio ................................................................................................................13

Essay – Human Rights and International Law ...........................................17

Essay – Human Rights and Relativism .........................................................27

Essay – Researcher of Law ...............................................................................37

Essay – Globalisation and Transnational Religious Actors (TRA) ..................................................................................47

Essay – 2008/2009 – Israel Gaza Confl ict ..................................................61

Th esis Proposal ............................................................................................... 115

Dissertation – A Critical Appraisal of the Child and Adolescent Statute (ECA) 1990 and the Brazilian System and Policies Toward the Protection of Children’s Rights ........................................................................ 123

Apêndice I – Award Confi rmation ............................................................ 185

Apêndice II – Letter of Reference from my Supervisor ........................ 186

Apêndice III – Fees Payment ..................................................................... 187

Apêndice IV – Diploma ............................................................................... 188

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Apêndice V - Diploma Supplement ........................................................... 189

Apêndice VI - Record of Learning and Archievement ............................... 190

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Presentation

We had the great chance to come to study in London (UK) just the same period Anastacio did. When you fi rst plan to leave all you have to go for something abroad you obviosly go with dreams, optimism and always a bit of fear, fear of failing, fear of not get-ting on with your challenges, but willing is always stronger and when you are lucky you fi nd strenght and resources to make it happen.

Th ings, in general, were not easy, all of us have had big problems to solve: manage to go with a scholarship which re-quest to be on activities which clashed with one of the modules (Jorge), or work hard to pay university’s fees (Andrea), all making things really hard from the very beggining. If you know London you will probably agree that beyond being a global spot with a lot of interesting things, it is also a place where the speed of diff erent relationship, a grey, cold, and rainy weather, specially, but not just, during the winter, make things hard for a foreigner not used to a North European way of being.

But just when things were getting harder, life allowed us to meet Anastacio, and that encountering meant a big change on the experience we had that year. Having met Anastacio introduced us into new ideas, diff erent ways of look at things, so then we spent long hours discussing about diff erent topics, academics and not, trying to understand the way the world works out and then undestanding the importance to take a position towards it. Th at is why this compila-tion of text is so amazing, because it doesn’t just refl ect the results of exhaustive research, but it is the refl ect of a position towards important challenges that entire humanity is facing today.

And as it is only trough special people that you fi nd the space to talk about interesting things and grow as a human

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being, and then make the most of experiences such as being studying an interesting topic in an interesting place. Th is is the reason that we will be always gratefull for having met Anastacio. We also have to recognise that without his support, our experience in the UK wouldn’t have being as interesting and pleacent as it was and we probably wouldn’t have learned as much as we did. We will never forget those days previous to exams how we were both studying together and managed to learn a lot, but also have a great time, adding humanity and reality to the topics we were facing.

And it is precisely this why we feel so proud to have a word on the present book, because we have a chance to say thank you Anastacio for all the hours we spent together, for the conversations we shared between us, and would also want to say that we hope all the plans works out for better, and wish to share as friend for the rest of our lives.

Related to the book itself, the main part (dis-sertation) is, in simple words, a great compilation of thoughts and re-fl ections on improving the standard of living of the disadvantaged chil-dren of Brazil and other developing countries. Th ese words constitute a challenge and an invitation to people who are interested in social and legal issues. Th e main goal is that the reader opens their mind and fi nds in this text the motivation to know more about the reality of millions of children and adolescents who live in very diffi cult situations, despite the progress in legislation to protect their rights.

Anastacio off ers us a deep analysis of the “Children legal framework” in Brazil, the living conditions of Brazilian children and what has been done to make a positive and signifi cant impact on their life and to protect their rights.

His conclusions remind us that to achieve this, not only do we need resources, laws and policies, we also need com-

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mitted individuals who are able to relinquish power and their own in-terests, people with a huge heart who are prepared to work together to meet the children’s real needs.

Th anks to Anastacio´s social sensitivity and his experience working with the children of his own town, Fortaleza, more people can become motivated to make a positive diff erence to the lives of children not only in Brazil but around the world.

Luz Andrea Medina SierraColombian Psychologist and Master of Human Rights and Social Justice.

Jorge O’Ryan Cavagnaro,Chilean Lawyer and Master of International Law.

Bogota and Santiago, February 8th 2010.

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Prefácio

Realizar o prefácio deste livro, que nada mais é do que os trabalhos e a dissertação que foram realizadas no mestrado em Diretios Humanos realizado na London Metropolitan University, no meu modo de ver, poderia ser resumido em uma palavra: agradecimen-to. Ninguém chega a lugar algum sem ajuda e orientação, e reconhecer este privilégio, é mais do que uma satisfação, é um enaltecimento ao valor da amizade, e por que não dizer do ser humano.

Muitos, de uma forma mais direta ou não, con-tribuíram para que eu pudesse ir, ver, vencer e voltar, seja pela simples torcida, seja pela colaboração direta em algum aspecto da empreitada. Por certo, é uma tarefa árdua nominá-los, na medida em que poderia eventualmente olvidar alguém, mas correrei o risco em nome do dever do reconhecimento direto e pessoal.

É possível dividir em duas fases distintas essa odisséia, a primeira que podemos nominar de pré-mestrado e a segunda o curso propriamente dito, e em cada um destes capítulos tive a honra de receber apoios diversos.

Importante destacar na fase pré-mestrado, pe-ríodo este no qual os planos e sonhos ainda eram embrionários, o in-cansável e doce apoio da minha esposa Soraya Aguiar. A cumplicida-de e convivência naqueles momentos foram inesquecíveis e fi carão guardados por toda a minha vida.

Grato à Divindade em primeiro lugar e aos fa-miliares e amigos que tanto me apoiaram: meus pais (Lúcio Flávio e Maria Elizabete), irmãs (Elina e Mirela) e primos, em especial, Elisabete e Teresa Alencar, Adriana Cavalcanti de Aguiar, José Joaquim Neto Cis-ne, José Batista Th omas e Antônio Th omaz Neto.

No âmbito da AGU, não posso esquecer de agradecer a Izabel Vinchon, Francisco Soares de Lima, Felipe de Araújo Lima, Adriana Villas Boas de Araújo Lima pelas dicas, força e torcida.

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Os ex-chefes da Procuradoria da União no Estado do Ceará, Clarissa Sampaio e Antônio Cláudio, agradeço pela liberação e apoio.

Agradeço também o pessoal da Embaixada do Brasil em Londres, em especial o Embaixador Laudemar Aguiar e o Auxiliar do Adido do Exército Fellipe Albarello. Não posso olvi-dar Mário Mamede e Cristina Cambiaghi, da Secretaria Especial de Direitos Humanos da Presidência da República pelas orientações.

Uma pessoa, em especial, merece muito cré-dito nessa odisséia, pois sem sua ajuda, provavelmente, a consecução do mestrado não teria sido possível. Tânia Davella é essa pessoa. Ela propiciou todas as informações necessárias, bem como agilizou e otimi-zou a documentação referente ao curso, tendo em vista que à época ela trabalhava na London Metropoitan University. Obrigado, Tânia.

Um muito obrigado também aos amigos de sempre: Augusto Cláudio Ferreira Guterres Soares, José Lindolfo We-ber da Silva e Rejane Zenir Jungbluth Teixeira, companheiros de outras caminhadas e pessoas muito queridas. Grato pela amizade sincera.

Realizar um mestrado, por si só, não é uma tarefa fácil. Realizar um mestrado em outro país, as difi culdades são diretamente proporcionais à distância, ao idioma e a adaptabilidade ao novo local. Se este novo local for Londres, o mestrado toma contorno de aventura, especialmente, se forem considerados a questão climática e os preços.

A escolha do local no qual morar foi um ca-pítulo à parte e desde os primeiros planejamentos me preocupou, em razão dos elevados preços de Londres e pelo fato de eu dar preferência a um local que fosse perto ou de fácil acesso à universidade. Após uma indicação da embaixada brasileira, chegamos ao Hanover House, 37, Emperor’s Gate, South Kensington – uma belíssima região a poucos metros do Hyde Park e do outro lado da cidade – considerando que a universidade fi ca em Holloway Road. Entretanto, para facilitar, a linha

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de metrô Picadilly Line – que cruza Londres do sudoeste para o nor-deste – passa a poucos metros do referido endereço e da universidade.

Tivemos a grata satisfação de ser recebidos pelo simpático casal, os Nakkar, que gentilmente nos atendeu e hospe-dou por todo o período, pelo módico preço de 240 libras semanais (é isso mesmo, o vizinho cobrava 370 libras).

Uma coisa que logo percebi é que deveria ter estudado mais inglês. Devo confessar que participar de aulas, nas quais a maioria dos mestrandos é nativa no idioma e os professores não estão muito preocupados em serem entendidos por estrangeiros, assusta, em especial no primeiro mês.

Entretanto, logo descobri que não era o único que achava que tinha estudado pouco o idioma. A identifi cação por afi -nidades fez nascer o que poderia dizer ter sido uma das melhores coisas do mestrado: a amizade com Jorge O’Ryan e Andrea Medina.

Com ambos, ele, chileno, e ela, colombiana, foi possível amenizar o fardo do isolamento e do idioma. Ser amigo de ambos é coisa fácil, dado sua imensa gentileza e terna compreensão. É com carinho que lembro os agradáveis passeios no Hyde Park e Rich-mond Park, bem como das incomparáveis conversas em Cambridge. Foi um privilégio tê-los conhecido e uma alegria maior a sua amizade. Não poderia esquecer a agradável companhia dos irmãos Andy Hinds e Sally Hinds, esposa de Jorge.

Outro momento importante no mestrado foi a convivência com o pessoal do LAIF – Latin American Issues Forum, fó-rum este que criamos em Londres com os mestrandos e doutourandos. Agradeço em especial a participação de Gabriela Goulart, mestranda pela LSE (London School of Economics), que com sua incansável atitu-de e capacidade de trabalho permitiu a fundação do mesmo. Agradeço ao amigo Marcelo Alves Dias de Souza, doutourando pelo King’s Col-lege, pelas agradáveis reuniões em seu apartamento. Aos demais com-

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ponentes do LAIF: Jorge O’Ryan, Andréa Luz Medina, Maarten van Munster, Victor De Martino, Razim Rzaev, David Trueman, Amanda Cumberland and Vinod Kumar Kusuma, meu muito obrigado.

Agradeço também o carinho e a amizade das irmãs Silvia e Luciana Peroba, bem como Lucia Correa e Murtaja Ha-mada, pelos bons momentos vividos e pelos gostosos almoços das sex-tas-feiras.

A realização da minha tese de mestrado sobre o Estatuto da Criança e do Adolescente só foi possível graças às perti-nentes orientações de Maria das Graças Sá Gadelha, Ana Márcia Dió-genes Paiva Lima e Nadja Bortolotti, do CEDECA/CE. Sem o carinho delas, essa obra não teria alcançado o sucesso que obteve. Sou muito grato à minha orientadora na tese do mestrado, Anjana Bahl, pelo ca-rinho, atenção e paciência em me mostrar o melhor caminho a seguir. Agradeço também aos amigos de longas datas, Paulo Marcelo Ribeiro e Antenor Madruga, pelas dicas de contato.

Claro que houve momentos de ansiedade e angústia, seja pela difi culdade inerente ao próprio curso e idioma, seja pela hostilidade do clima ou pela adaptabilidade a um ambiente novo, entretanto, posso afi rmar com clareza que os bons momentos em muito superaram os maus.

A beleza do mestrado, todavia, deveu-se a uma pessoa em especial, a minha esposa. Conviver com ela por quase um ano em um minúsculo studio foi uma das experiências mais signifi cati-vas e interessantes da minha história de vida e ter podido compartilhar aqueles momentos com ela não tem preço. Sim, como já disse Gonza-guinha; “faria tudo outra vez, se preciso fosse...”.

Fortaleza/CE, 11 de fevereiro de 2010.

José Anastácio de Sousa Aguiar

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EssayHuman Rights and International LawAssess and explain the importance that human rights have attained within international law.

“You cannot conceive the many without the one.”(Plato, Dialogues, Parmenides, 166)

IntroductionTh is essay examines the historical develop-

ment of human rights, the importance that they have attained within international law and their infl uences for defi nition of a new internatio-nal legal order, allowing the formation of a new system of international rules for protecting those rights.

It also has a brief study of the correlation be-tween the stages of development of human rights and their infl uence in the limitation of state sovereignty. It contextualizes the events in World War II and the role of United Nations in promoting and consolidating the human rights, and at the end concludes about the proposed topic.

Historical EvolutionTh e evolution of the concept of human rights

is closely linked to the recognition of the individual as a subject of ri-ghts and the consequent decline of the absolutist state. Th e idea of the existence of human rights began to gain strength from the events in the eighteenth century. However, one can say that: “Th ere are divergent views as to the origins of human rights: the existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured in various predominantly European schools of thought since that time.”1

1 SMITH, Rhona K. M. – International Human Rights – Oxford University Press – 2nd edition – Oxford – 2005 – p. 5.

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It is important to highlight, however, that the-re were signifi cant attempts in a remote past to impose restrictions on the power of the ruler, such as the Magna Carta of 1215, considered the foundation of English liberties, in which feudal lords imposed on the king John of England that document, which stipulated that from then on, the English kings could only raise taxes or change laws with the approval of the Great Council, composed of members of the clergy, counts and barons.

Among the documents before the Second World War, three stand out: Th e English Declaration of 1689 (Bill of Rights), which besides establishing the foundations of parliamentary monarchy, established the guarantee of press freedom and individual liberty, protection of private property and autonomy of action of the judiciary; the American Declaration of Independence, drafted by Th o-mas Jeff erson, and the French Declaration of the Rights of Man and of the Citizen of 1789, which was a direct result of philosophical and legal movements by some European philosophers, and whose infl uence on the independence movements of Latin American countries cannot be ignored. Th e principles established by the three aforementioned state-ments were welcomed in the main liberal constitutions. Th e protection of rights was, however, of a domestic nature.

Th e Second World War, with a series of atro-cities, showed that human rights should be protected by international law. In structuring the international order, the institution of the Uni-ted Nations through the Charter of San Francisco, signed on June 26, 1945, came to give to the human rights a constitutional stature in the planning of the rights of the people. Since its foundation, it was not safe to assume that there were, in Public International Law, conscious and organized concern on the theme of human rights.

Th e adoption of the Charter guaranteed the legal assumptions that led to its General Assembly, meeting in Paris, to adopt the Universal Declaration of Human Rights in December 1948, which is the most important milestone in the study of human rights. Th e Declaration

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is a document that expresses so widely the substantive rules relating to the subject, and in which the later conventions would fi nd their principles and inspiration. However, those rules are not exactly a legal obligation for each state, since the text was adopted in the form of resolution of the Assembly, but: “Th e declaration is also the source of an international movement, and of numerous national movements, of political activists who struggle against oppression, injustice and exploitation (…).”2

Th e Universal Declaration of Human Rights

Th e phenomenon of internationalization of human rights got great emphasis by the atrocities committed during the Second World War, together with the lack of state control to ensure the eff ectiveness of those rights, and safeguard of human dignity.

When human rights are no longer regarded as matters of exclusive jurisdiction of states sovereign and began to be inser-ted between the prerogatives of international society, their defense began to occur regardless of the territorial limitations imposed by the states.

 Just from the creation of the United Nations, human rights became to be an integral part of the interest of internatio-nal society, as it is said: “Before the foundation of the United Nations, the human rights protection which existed was clearly sporadic.” 3

Since that time, the human rights were no lon-ger a mere abstraction, but a real topic of interest to the entire interna-tional community, as: “Th e fi rst step taken by the United Nations with respect to human rights was the affi rmation of the existence of a body of international human rights.” 4

2 FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 36.

3 SMITH, Rhona K. M. – Op. cit., p. 24. 4 Ibid., p. 30.

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In this context arises the Universal Declaration of Human Rights of 1948, drafted by the General Assembly, a body of the United Nations - UN. Th e human rights became the center of attention and decisions rather than a peripheral issue. Th e universality and indivisibility of those rights began to be priority in guiding the development of public policies by the states, and should be observed regardless of cultural, political, economic and religious needs of each society, as: “Undoubtedly, the creation of a treaty-based body of inter-national human rights law has been one of the successes of the orga-nization. In little over fi fty years, international human rights law has become a documented reality.” 5

Th e Human Being as Subject of Rights

Th e human rights were born because of the need of the citizens to be holders of certain rights in relation to the state sove-reign and then in relation to international society. With this design, the individual was brought before the international society, opening space be-tween sovereign states, which hitherto were the only subjects of rights, as it is said: “Th e signing of the United Nations Charter brought about a fundamental change. For the fi rst time ‘human rights’ were reff ered to in the constitution of an international organisation. It is true that the reference was in general terms, but the very mention was signifi cant because it suggested that here was a concept of universal application.”6

Th e universality and the internationalization of human rights led to the formation of some international regulatory systems (universal and regional) for protection of these rights. Adop-ting the value of the primacy of the human person, these systems com-plement each other, interacting with the national system of protection,

5 Ibid., p. 35.

6 ROBERTSON, A. H. and MERRILLS, J. G. – Human Rights in the World – Manchester University Press – 4th edition – Glasgow – 1996 – p. 330/331.

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to provide the greatest possible eff ectiveness in the protection and pro-motion of fundamental rights.

Accepting the international apparatus protec-tion, as well as international obligations arising therefore, the states shall accept the international monitoring, as regards the way in which funda-mental rights are respected in their territory. It is important to emphasize, however, that international action is always an additional action, provi-ding an additional guarantee of protection of human rights.

Th e Resizing of State Sovereignty

In this context, it has become inevitable to re-cognize that human rights really bring essential values to any group and it also bring a new reading of the concept of state sovereignty, as: “Th e evolution of the concept of human rights is closely related to the evolution of the concept of sovereignty. Th is is also refl ected in modern international law.”7

Th e respect for human rights, as called for in many international acts, especially from the second post-war period, has contributed to the spread of protective actions and sedimentation in the perception of individuals about the existence of a moral obligation to preserve them. Th is gradual integration of certain international standar-ds for protecting human rights has contributed decisively to give them a general reach.

Moreover, the duty to respect human rights has long been emphasized by the internationalist doctrine and can be em-bedded in the general principles of law recognized by civilized nations. Accordingly, it is clear that the international order must be concerned with their implementation, diminishing the once inviolable dogmas of

7 BERTING, Jan – Human Rights in a Pluralist World: Individuals and Collectivities – UNESCO – 1990 – p. 17.

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sovereignty and providing truly eff ective mechanisms for their protec-tion, as it is said: “At its highest level of abstraction the naturalist logic posits human dignity as the highest global value, whose pursuit does not even require the consent of a sovereign state authority.”8

Th e process of internationalization of human rights has been slow and painful, but its importance to the legal deve-lopment of those rights is undeniable, making easier the recognition of their universal and supra-state character. In the aspect of ownership, it has contributed to the expansion of the active subjects of international law, not allowing the domestic jurisdiction to occupy an exclusive role in the protection of these rights.

However, it seems indisputable that the inter-national protection of the individual counts in a serious threat to the sovereignty of the state. It is undeniable that the importance of the-se principles requires eff orts to ensure their coexistence, avoiding one being used to annihilate the other.

Th e New World Order

Th e changes arising from the move-ment of international human rights also contributed to the pro-cess of democratization of the international scenario since, besi-des the states, new subjects of law are going to take part in the international arena, as individuals and nongovernmental organizations. In this context, individuals have become subjects of international law - traditionally, an arena in which only states could participate, as: “Ori-ginally, international law was, literally, the law of nations. It was exclu-sively concerned with the interation of States – diplomatic relations and the laws of war.”9

8 Ibid., p. 174.

9 SMITH, Rhona K. M. – Op. cit., p. 7.

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Indeed, insofar as they keep a direct rela-tionship with the international instruments on human rights, indi-viduals are being designed as subjects of international law. Provided that subjects of international law, it is up to individuals the right to drive international mechanisms, such as the petition or individual communication, in which an individual, groups of individuals or, sometimes, non-governmental entities, may refer to competent in-ternational bodies complaint of violation of law enshrined in inter-national treaties.

In fact, the human rights have introduced in international law a new dimension of the concept of citizenship. Th is concept is now extended and expanded, in order because it includes not only rights under national level but also internationally listed rights. Th e international system of accountability has yet to integrate this new concept of citizenship in order that, next to national guarantees, are added guarantees of international nature.

Nowadays, it can be said that the full realiza-tion of the rights of citizenship involves the wide and eff ective exercise of the human rights, nationally and internationally guaranteed, and this was only possible through the implementation of the Universal Declaration, as: “Th e Universal Declaration attracts and deserves acco-lades of superlatives. Without doubt, it was an unprecedented step for the world – state acknowledgement that individuals were no longer so-lely subject to the whims of the State. Rather individuals were entitled as a birthright to equality and to fundamental rights.” 10

Conclusion In conclusion, it is easy to recognize the great

importance of human rights in the current international order11, es-

10 SMITH, Rhona K. M. – Op. cit., p. 43.

11 “In the past ten years, the concept of human rights has become a permanent part of the way we think about relations between nations. International human rights are now a legislative condition of foreign aid, have been institutionalized in bureaucratic structures, and, perhaps most importantly, have been stamped indelibly in the minds of the public as one of the most important standards by which we measure other countries.” ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006 – p. 21.

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pecially in the latter half century of intense development of the Uni-versal Declaration of Human Rights and the creation of increasingly eff ective mechanisms for action in this area. Th e International Human Rights Law has been recognized as autonomous branch of science and highlighted as a contemporary legal protection of man, as an individu-al, opposed to the state or any other subject of international law for the protection against any harmful act. 12

Any other idea has not caused so much change in relations between states or between states and individuals as a human rights issue. Since the publication of the Universal Declaration of the Human Rights, which this year completes 60 years old, is extremely diffi cult to ignore the extraordinary development of his ideal, and it can be easily said that no international issue could dispenses with the interference of the human rights issues.

12 “In view of this very similar terminology it would seem that we are justifi ed in speaking here of an international law of human rights and in suggesting that the approach which is adopted toward these common provisions in one system is likely to be important generally.” ROBERTSON, A. H. and MERRILLS, J. G. – Op. cit., p. 332.

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Bibliography

ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006.

BAXI, Upendra – Th e Future of Human Rights – Oxford University Press – 2nd edition – 2006.

BERTING, Jan – Human Rights in a Pluralist World: Individuals and Collectivities – UNESCO – 1990.

FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2008.

MCLEOD, Ian – Legal Th eory – Palgrave Macmillan – 4th edition – 2007.

ROBERTSON, A. H. and MERRILLS, J. G. – Human Rights in the World – Manchester University Press – 4th edition – Glasgow – 1996.

SMITH, Rhona K. M. – International Human Rights – Oxford University Press – 2nd edition – Oxford – 2005.

STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford University Press – 2nd edition – Oxford – 2000.

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EssayHuman Rights and RelativismEvaluate the criticism that the language of human rights expresses individualist norms that are alien and detrimental to the ethics of many cultures.

“Th e human understanding is like a false mirror, which, receiving rays irregularly distorts and discolors the nature of things by

mingling its own nature with it.”(Francis Bacon, Novum Organum, Aphorism 41)

Introduction

One of the oldest and fi erce controversies in the fi eld of human rights is linked to the question about the universal or relative character of these rights. In other words, should be given equal treatment in all nations to the internationally recognized human rights, or whether are they subject to changes in the hierarchical rankin-gs according to diff erent cultural basis on which a society has develo-ped, adapting to the ethical values of each culture?

Some critics believe that the universal charac-ter expresses the individualistic values and the dominant culture, wi-thout respecting the peculiarities of each group and ethical culture. Th is essay seeks to identify the issues surrounding this question, reaching to a fi nal conclusion on the proposed topic.

Defi nition

First of all, it is important to understand the limits of the concept that will be studied. In one extreme, there is the

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radical cultural relativism, and in the other, there is the radical uni-versalism: “Th e two extreme positions on cultural relativism can be called radical cultural relativism and radical universalism. Radical cultural relativism would hold that culture is the sole source of the validity of a moral right or rule. Radical universalism would hold that culture is irrelevant to the validity of moral rights and rules, which are universally valid.”1

Within those limits are the diff erent concep-tions about the interpretation and acceptance of the protetion of hu-man rights.

Universal Character

In the foundation of the rhetoric on human rights, there is the assumption that human nature is universal and com-mon to all individuals. And it could not be any other way, because if it were, it would be illogical to advocate the existence of a universal declaration of rights.

In this context, one can say that the doctrine of universal has its roots from the conceptions of the theory of natural law2. Under this doctrine, these natural laws establish certain rights inherent to all human beings and represent, as a result, a higher law, which would be considered the supreme parameter to be observed in the preparation of national and international standards relating to the humanistic dogmatic.

1 ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006 – p. 173.

2 “However, this must be amplifi ed by saying that all natural lawyers would probably that, because law may, in the fi nal analysis, involve the coercive power of the state, the basis of the law should at least be moral, because otherwise the state will be a party to immoral conduct.” MCLEOD, Ian – Legal Th eory – Palgrave Macmillan – 4th edition – 2007 – p. 20.

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For the universalists, there is a set of minimum rights inherited by all peoples, as follows: “Put simply, the partisans of universality claim that international human rights like rights to equal protection, physical security, free speech, freedom of religion and free association are and must be the same everywhere.” 3

Th ese minimum sets of rights go beyond cul-tural diff erences, and should function as true magnetic north in the preparation of laws on human rights. Th ese rules should provide basic guidelines to be prosecuted for the protection of members of a society. Th e result of taking basic rules established for the protection of human dignity by an international body representative of all nations, or at le-ast almost entirely (for example, the United Nations), would not only be limited on their wide acceptance, but also their wide applicability among diff erent peoples.

Th us, the acceptance of human rights as inhe-rent to all individuals, no matter their nationality, is one of the crucial assumptions to its actual implementation. Th e colluding with any gra-duations of those rights would have been a constant threat to the eff ec-tive protection that is intended to off er to individuals.

Th is does not imply that it is not possible to accept any kind of regional infl uence in the implementation of the-se standards. In fact, only the essence, the value ultimately provided, should be promoted and similarly guarded among all peoples.

Currently, what is happening is that the uni-versality of human rights have been interpreted considering the diff e-rent contexts, as it is said: “International human-rights institutions have generally accepted that universal human-rights standards ought to be interpreted diff erently in diff erent cultural contexts.”4

3 STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford University Press – 2nd edition – 2000 – p. 366.

4 FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 104.

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Th e Cultural Relativism

Th e proponents of cultural relativism, in turn, insist that the standards concerning human rights should be considered and implemented in accordance with the diff erent cultural contexts. Th e supporters of this current attempt to impose the idea that there is a huge cultural variety among the many societies that are spread throu-ghout the world and therefore all kinds of local customs would need to be deemed valid. It would not be correct electing a limited number of cultural models, which would be taken as universal standards, and based on them, assess and stigmatize all the others that are not con-sistent with them, as follows: “Advocates of cultural relativism claim that (most, some) rights and rules about morality are encoded in and thus depend on cultural context, the term culture often being used in a broad and diff use way that reaches beyond indigenous traditions and customary practices to include political and religious ideologies and institutional structures”.5

Human dignity would still be an important principle to be preserved but, unlike the universalist, the relativist doc-trine has used more a collective approach to the same protection of dig-nity, through interactions with society itself, which police the actions of individuals. Th is is why severe behavioral control by the community is allowed.

In fact, this would be tantamount to say that the social structure has its own internal mechanisms to protect its ci-tizens, despite the fact that these instruments may not match those employed in international documents. And, therefore, the protective guidelines outlined by international human rights standards would be not only unnecessary, but also inappropriate to prevent and repress any violence perpetrated against human beings.

5 STEINER, Henry J. and ALSTON, Philip – Op. cit., p. 366 and 367.

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Th e relativists, moreover, calling the inade-quacy of standards on human rights as called today, argue that they are located on the universalist side of the dispute.

The Relativism as Maintenance of Power

It is very interesting to observe that the most en-thusiastic advocates of relativism are governments and religious authorities interested more in maintaining the power and the consequent preservation of the status quo acquired than in eff ective realization of the basic needs of their societies:“It thus remains understandable that some grass roots human rights activists assail the universality of human rights in terms of cultural and political imperialism and that some heads of states and gov-ernments construct justifi cation of their impunity for violation of human rights norms and standards by appeals to cultural diff erences.” 6

Th is kind of relativism is more common in de-veloping countries. Th ey often argue that they cannot aff ord human ri-ghts, since the tasks of nation building, economic and the consolidation of the state structure are still unfi nished. Th ey say that authoritarianism is more effi cient to promote development and economic growth. It is suggested that the limitation of human rights may be understood as the sacrifi ce of the few for the benefi t of the many, as follows: “Government offi cials denounce the corrosive individualism of western values – while they line their pocket with the proceeds of massive corruption, drive imported luxury automobiles, and plan European and American vaca-tions. Leaders sing the praises of traditional communities, which they claim as a source of their political practices – while they wield arbitrary power antithetical to tradition values, pursue development policies that systematically undermine traditional communities, and replace tradi-tional leaders with corrupt cronies and party hacks.” 7

6 BAXI, Upendra – Th e Future of Human Rights – Oxford University Press – 2nd edition – 2006 – p. 160.

7 ADDO, Michael K. – Op. cit., p. 185.

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Ocidental Values

A major obstacle to be overcame, perhaps the largest, to reach a broader acceptance of human rights internationally recognized, is that the assertion that this humanistic dialectic is a con-cept originally born in the West and, consequently, does not refl ect the reality of Eastern countries, as follows: “To the relativist, these instru-ments and their pretension to universality may suggest primarily the arrogance or ‘cultural imperialism’ of the West, given the West’s tra-ditional urge – expressed for example in political ideology (liberalism) and in religious faith (Christianity) – to view its own forms and beliefs as universal, and to attempt to universalise them.”8

Undoubtedly, this vision of the human rights has its cradle in the Western world. Th e primary source of the ideas of individual freedom, democracy, human rights and other privileges of the genre is the West or, more precisely, Europe. Th is cannot be inferred, however, that other nations should not adopt and strengthen them only for this reason. Th is type of rivalry and prejudice, unfortunately, has often been the major factor that inhibit the adoption of a cosmopolitan system for protecting human being who earned universal resonance.

Another important argument proposed ai-ming to refute these Western standards is based on the History of the formulation of many of the instruments concerning human rights. Many countries in Africa and Asia, by way of example, did not parti-cipate in the drafting of the Universal Declaration of Human Rights, because they were colonies at the time and thus were not considered members of the United Nations.

On the evidence, the humanistic thinking in this fi eld, because of their own cradle, is not a universal ideology, with equivalent eff ect among all ethnic groups. Not mean, however, that it should not be universally chancellery. In summary: “In the conditions

8 STEINER, Henry J. and ALSTON, Philip – Op. cit., p. 367.

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of modern society, rights, especially human rights, are a particularly ap-propriate mechanism for protecting this basic, relatively universal core of human nature and dignity.” 9

Universality, not Uniformity

Perhaps one of the points that have not been well understood by critics of the universality of human rights is the fact that it is not the same as uniformity. Accepting the universality does not require removing all cultural, philosophical and religious variations of a particular social group, nor presenting a magic formula for resolving all problems. More so, submitting a minimum set of values that refl ect what is human in every individual, from which no human being can be excluded.

In this context, human rights derive from the simple fact of being human and not depend on any particular benefi t from any government or legal code. Th e diff erences of culture should serve to enrich the similarities and not deepen the diff erences, because for most pa-radoxical that is, only the protection of human rights can ensure diversity.

Despite the diff erences that still remain betwe-en a wide range of conceptions on human rights implementation, it is possible to see a bright future, as it is happening in Europe, as follows: “In spite of the diff erences between Eastern and Western Europe in the domain of human rights as they are related to the diff erent backgroun-ds, (...). Eastern European states accept global human rights treaties and incorporate civil and political rights in their national legislation. Western European states are becoming stronger oriented toward social, economic and cultural rights.” 10

9 ADDO, Michael K. – Op. cit., p. 188.

10 BERTING, Jan – Human Rights in a Pluralist World: individuals and collectivities – UNESCO – 1990 – p. 113.

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Conclusion

In summary, it can be said that the most re-asonable position to the question proposed lies in what was expressed by the World Conference on the Human Rights in June 1993 (Vienna Declaration), which reaffi rms the universal character of human rights, but qualifi es this statement, as follows:

Solemnly adopts the Vienna Declaration and Programme of Action.I

“1. Th e World Conference on Human Rights reaffi rms the solemn commitment of all States to fulfi l their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. Th e universal nature of these rights and freedoms is beyond question.

(…) “5. All human rights are universal, indivisible and interdependent and interrelated. Th e international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the signifi cance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, (…)”11

Th at will not put an end to this controversial issue, but makes an important step that may in future be found a for-mula that could fi nally reconcile the universality of human rights with regard to the ethical principles of each culture.

11 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.24+(PART+I).En?OpenDocument (accessed in 27/11/2008).

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Despite all precariousness listed in a globalized world like today, where there are modern means of communication and transport, the interactions between civilizations have become a cons-tant, which will mean an exchange of cultural values increasingly, and to some degree, desirable. What will result is what is expected, a higher predisposition for tolerance among diff erent peoples regarding the ideal of protecting human dignity in all its facets. For that, fi nally, to be es-tablished a common code of standards, which receive acceptance in all nations, which would provide a more eff ective protection of the rights inherent to the human person, regardless of their racial, historical and cultural lineage.

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Bibliography

ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006.

BAXI, Upendra – Th e Future of Human Rights – Oxford University Press – 2nd edition – 2006.

BERTING, Jan – Human Rights in a Pluralist World: individuals and collectivities – UNESCO – 1990.

FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002.

MCLEOD, Ian – Legal Th eory – Palgrave Macmillan – 4th edition – 2007.

STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford University Press – 2nd edition – 2000.

http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.24+(PART+I).En?OpenDocument

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EssayResearcher of Law

Th e researcher of law must take into account policy and social theory. Legal theory and consequentially legal analysis cannot be hermetically sealed from contemporary events.Discuss.

“Man is by nature a political animal.” (Aristotle, Politics, bk 1, ch 2)

IntroductionTh e issues involving the research of law have

followed the evolution of the thinking of mankind. Th ese issues have ranged from the radical positivism to the natural divine law and en-compass a multitude of intermediate positions. Th e legal researcher from every period of history has guided his vision by the dominant currents and problems of each season.

Th us, this work will make a brief summary of se-veral of the most prominent thinkers of each season showing the evolution of the concern of the legal researcher from the question “what is the law?” to the question “what the law ought to be?”, all focused on the infl uence that the researcher of law received or not from his contemporaneous events and conclude at the end about the proposed topic.

Th e Logical-Deductive Paradigm from Kelsen

Th e logical-deductive paradigm considered by the rationalists, more specifi cally for Renee Descartes, during much time led the human thought. Th e systemic vision of the rationality, which arrived at the height between century XVII and XX, only admit-ted to be considered as truth what it could scientifi cally be demonstra-ble. Th e Law, as social science par excellence, followed this trend.

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Th at mentality reached the pinnacle with the positivists, more precisely with Hans Kelsen, who reduced the legal activity to that one limited to logic-deductive operations, from a hie-rarchical system of standards created by the state. Kelsen preached ob-jectivity to the legal system. For example, the judges must refrain from their subjectivity and values to judge. To sum up, his pure theory of law: “Th e theory`s purity lies in the fact that it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law.”1

Th e Rethorical Method – Chaim Perelman

Th at system has undergone a series of criti-cisms, among them those carried out by Chaim Perelman. According to Perelman, the Law should be a creative activity, operating therefore more in practice than in theory, more in concrete plan than in the virtual one. It was then a new method, the rhetoric, which is based on the legacy left by Aristotle2 and widespread by sophistries. As Perelman puts it: “In dialectical argumentation, it is conceptions considered as generally accepted that are confronted and contrasted with each other. Because of that, the dialectical method is the method par excellence.”3

Th e rhetoric resurfaces as a new paradigm; no longer bother to keep the old-fashioned axiological neutrality, just im-porting in the discovery of a single absolute truth, but facts possible, reasonable and plausible to be applied, as H. L. A. Hart concluded: “In this part of his work M. Perelman has reached, by an independent

1 MCLEOD, Ian – Legal Th eory – Palgrave Macmillan – 4th edition – 2007 – p. 89.

2 “It is in the Rhetoric that we fi nd Aristotle’s views regarding these and a number of other questions of positive legislation, because the Rhetoric is extensively concerned with certain problems of actual living law.” FRIEDRICH, Carl Joachim – Th e Philosophy of Law in Historical Perspective – Th e University of Chicago Press – 2nd edition – London – 1969 – p. 23.

3 PERELMAN, Chaim – Th e Idea of Justice and Th e Problem of Argument – Routledge & Kegan Paul – London – 1963 – p. 167.

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route, conclusions similar to those contemporary English philosophers who have also been critical of both the rationalism and the empiricism of the past.”4

Hesse X Lassale

Another issue that can be useful to the matter of what should be taken into account by legal researcher is the discus-sion between Ferdinand Lassale and Konrad Hesse about the forces on the formation of a constitution.

Hesse demonstrated that there are intentions that can be implemented and ensure the normative force of the Cons-titution, even if subjected to confrontations with the real factors of power demonstrated by Lassale. Th e transformation of the legal issues in power issues could only be possible when these intentions cannot achieve its goals. Hesse also highlights the desire of constitution, not fl out the signifi cance of historical factors, political and social implica-tions for the eff ectiveness of legislative power of the Constitution. Th e fundamental law of a State may only be seen as an active force, an is-sue capable of producing a forceful infl uence, and eff ective participant, when the same is detected a will, a tendency to guide the conduct itself in accordance with the order therein. It must have a general desire to set, and not just the will to power, as it always has occurred in most of the leaders responsible for ensuring the constitutional order.

Th e New Hermeneutics of Peter Haberle

Th e systematic method, characterized as being hermetically sealed, marked the philosophical positivism, did not corresponded anymore to the perplexities and uncertainties cau-

4 Ibid., p. xi.

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sed by a world of new and diff erent values, especially when the atro-cities of Nazism, committed under the protection of the law, showed that the law is not always fair. Hence, the role of the Court of Nurem-berg, in the immediate post-war, to decide according to the principles of universal morality.

Note that the new set of values in a society, which was marked by deep diff erences in interests, allowed the emer-gence of a constitutional theory, which is not based anymore on strict obedience to the rule legitimately created by the state environment, but unlike, search, through universal values and common senses brought by tradition. It sought the point of convergence able to bring consensus to social confl icts, particularly the process argumentative (new rhetorical).

In this context, in which the interpretative act is questioned by pluralistic society that the constitutional the-ory has emerged looking for space in the legitimating of decisions (in the political and judicial areas) and the establishment of legal norms. From that point, it was necessary to understand the way these new agents would take part in the hermeneutic process. Peter Haberle, in his work “Constitutional Hermeneutics” innovates to theorize about the execution of a method of constitutional interpre-tation that allows for the understanding of all public powers, social groups and citizens involved.

Gustav Radbruch and Th e Philosophy of Values

Gustav Radbruch is representative of the Phi-losophy of Values (Wertphilosophie). In the prelude to his philosophical work, Radbruch presented himself as positivist, campaigning, mainly with the defense of order and security, for, secondarily, worried about the observance of justice.

However, Radbruch touched with the taverns eff ects caused by the Second World War, mainly in German society,

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and thus became a natural lawyer. At that time of fl uidity in his legal-philosophical position, Radbruch was disappointed with the legal posi-tivism, which had left unguarded and completely vulnerable the people and the lawyers against arbitrary and cruel laws. Th us Radbruch, sup-planting his original position and embracing law naturalism, provided a vehement denial of the validity of unjust laws, which supported the coercion and the vileness of force.

Objecting to the methodological monism of Hans Kelsen, Radbruch promotes a contemplation of the law by its values, characterizing the method of contemplation by two guidelines: the methodological dualism and relativism.

Th e methodological dualism is refl ected in the distinction between two cosmos of reality as embodied: judgments of existence and value judgments. Th e former is evidenced in Being (Sein) and the latter is explicit in the Duty-Being (Sollen).

Referring to the lineament relativist, Radbru-ch talks that the various ways of thinking must focus on the diversity of men and therefore it is impossible to build belief in uniform. Th us, it is noted the relativity of all judgments.

Th is tune, Radbruch builds his philosophical line, listing three ways to face the law: legal realities attitude, which is related to values, considering the law suit as cultural fact (attitude es-sential for Science of Law); attitude which considers the law as a value of culture (main attitude of the Philosophy of Law); and attitude over the values (theme of Religious Philosophy of Law).

Continuing in a logical order of thought, Gus-tav Radbruch theorizes on the idea of law. For this notable thinker, the idea of law is built on the joint analysis of three key words: Justice, End, and Social Security, as W. Friedmann puts: “Law must thus be con-ceived as a totality of facts and relations, whose purpose it is to realise justice. It is the task of legal science to analyse the law as a factual unity

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of cultural values. It is the task of legal philosophy to analyse the law in its specifi c valuations.” 5

Th e Logic of Th e Reasonable of Recasens Siches

Recaséns Sicher6, who developed the method of “logos of reasonable,” stipulates that the court should handle it in front of its creative function, and because it has responsibility to the fulfi llment of justice, starting by examining the facts and circumstan-ces, electing which standard should be applied and what its extension.

Th e concept of the logic of the reasonable can be understandable, as a method, in which the application of legal standards must be guided by criteria estimated, based on prin-ciples of fairness, i.e. electing the most reasonable solution to the legal concrete problem.

In using the logic of the Reasonable, the equi-ty appears as a symptomatic device in solving the cases of gaps and clashes in the existing rules or the law itself, which often makes the task of judging, somewhat stormy.

With fairness, the magistrate has a discretiona-ry power, however, not arbitrary, and thus can appreciate, according to the logic of the reasonable, interests and facts not determined a priori by the legislature.

In brief, the lessons off ered by Sicher ease the methodology of formal logic in the interpretation of law, because it is not possible to accept anymore that the legislature has embedded all

5 FRIEDMANN, W. – Legal Th eory – Stevens & Sons Limited – 5th edition – London – 1967 – p. 192.

6 “Th e Spanish-Mexican jurist Luis Recasens-Siches has been principally concerned with an attempt to reconcile the objectivity of juridical values, on the basis of Scheler’s and Hartmann’s theories, with the historicity of juridical ideals.” Ibid., p. 201.

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the facts of life in abstract legal concepts and norms of law, allowing the deduction as the technique for excellence in law enforcement, whose character is marked by human logic, based on fairness and prudence.

Th e logic of the Reasonable has one special fe-ature, neither rely on syllogism nor in formal submission of judicial de-cisions. It is based on prudence, in the sense of fairness and justice. Th e logic of the Reasonable presents yet, other features, which sustain its exis-tence and importance to the legal world. It is constrained by the reality of the world in which it operates; is impregnated with estimated criteria or axiological, that distinguishes, decisively, the formal logic. It refers to a real situation, among others, is governed by reasons of suitability between the values and purposes, the ends and reality, the ends and the media; the ends and the eff ectiveness of resources, and, fi nally, the logic of reasonable is guided by the lessons of experience of life and historical experience.

Th e logic of Reasonable rises to the applica-tion of legal standards in accordance with principles of reasonableness, namely choosing the most reasonable solution to the legal problem spe-cifi cally, within the social, economic and cultural circumstances invol-ving the issue, not separated from the legal parameters.

Th e Utilitarism of Bentham

It is imperative to highlight the contribution of Jeremy Bentham.7 His theory supports the idea that the interpreta-tion of the rule should take into account the actual eff ects produced. Th e description of the eff ects would be based on the utility, being con-sidered good what brings pleasure, and bad, which causes pain. Com-plementing this sentence, through the social prism, good and fair is everything that tends to increase overall happiness.

7 “For Bentham the facts of pleasure and pain were the basis upon which rational laws could be built, and the object of ethics and politics was the greatest happiness of the greatest number, or the common good.” FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 27.

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To Bentham, the citizen should obey the rule insofar as the general happiness would come with your assistance (obedience).8 Th is happiness or general interest of the community in general, would be like “an equation” hedonist - a sum of the pleasures and pains of individuals. Th us, the theory of natural law is replaced by the utility, and the main signifi cance of this transformation is the passage from a fi ctional world to the world of facts (real). It is in the empirical world, says Bentham, that is possible to verify an action or institution, its usefulness or not.

Conclusion

In summary, it is possible to conclude that the legal research is fi rst and foremost a creative activity. Th roughout this process is therefore a creation of law. It is a process in which enter hu-man will, in which the interpreter seeks to determine the exact content of words and impute meaning to a standard.

Accordingly, it is a choice between multiple options. Th e activity mainly searches to rebuild the normative content and explain the norm, especially in light of a particular case. It can be said also that researching is an activity designed to explain the meaning of a term, but may also be the result of such activity, so it cannot be hermetically sealed from contemporary events and it must take into account policies and social theories.

8 “Th e object of Bentham’s psychology is, therefore, not proof but advocacy. He commends the principle of utility as a moral principle which, he thinks, any reader will fi nd preferable to any other, given the truth of his assertion about human nature.” HARRIS, J. W. – Legal Philosophies – Butterworths – 2nd edition – London – 1997 – p. 42.

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Bibliography

FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002.

FRIEDRICH, Carl Joachim – Th e Philosophy of Law in Historical Perspective – Th e University of Chicago Press – 2nd edition – London – 1969.

FRIEDMANN, W. – Legal Th eory – Stevens & Sons Limited – 5th edition – London – 1967.

HARRIS, J. W. – Legal Philosophies – Butterworths – 2nd edition – London – 1997.

MCLEOD, Ian – Legal Th eory – Palgrave Macmillan – 4th edition – 2007.

PERELMAN, Chaim – Th e Idea of Justice and Th e Problem of Argument – Routledge & Kegan Paul – London – 1963.

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EssayGlobalization and Transnational Religious Actors (TRAs)

How has Globalization infl uenced the Growth of Transnational Religious Actors (TRAs). Illustrate your answer with two examples of TRAs.

“Civilization begins with order, grows with liberty, and dies with chaos.”

(Will Durant: US historian 1885 – 1981)

Introduction

Th is essay will examine how globalization has infl uenced the growth of Transnational Religious Actors (TRAs). To achieve this aim, it will be explained the recent resurgence of religions, how it has infl uenced the role of globalization and why and how TRA has utilized it to grow and spread their ideals and ideas.

Th e second half of the twentieth century, especially the last twenty-fi ve years, was the period of the history of mankind in which religion was reintroduced in the international poli-tics. Th e world has witnessed the resurgence of religion on a global and unprecedented scale.

One of the most prominent example of this reintroduction happened on February 1989, when Salman Rushdie was condemned to death by Ayatollah Khomeini because of his book: Th e Satanic Verses. To protect the British author, the British government put him into hiding with a police body guarding. On November of that same year by coincidence or not the Berlin Wall fell. It was the

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crepuscule of the Cold War Era and the beginning of ‘Th e Clash of Civilization’1 Era.

Indeed, it is extremely diffi cult to ignore that religious infl uence have played a central part in shaping the world throughout its history. Th e emergence and maintenance of commu-nities of religious believers has been an important factor in the forma-tion of states, empires and civilizations, as it is possible to see in the past with the survival of the Roman Empire given by the Christianity Church after 4th Century, and currently the support given by Muslim authorities to Iran government.

Nowadays, there is another key element that has played an important role in this subject, accelerating and facilita-ting the process of dynamic interaction between people, cultures and societies: it is the globalization.

Th e Role of Globalization

Firstly, it is important to defi ne what globali-zation is. It refers “to a set of technological process aff ecting the world economy, telecommunications, information technology, travel, and growing economic interdependence between states and peoples that is altering our sense of time and space, and is creating the possibility that the world will become a single social space.”2

1 Th e US academic, Samuel Huntington, fi rst presented his ‘clash of civilization’ thesis in an article published in 1993, followed by a book in 1996. Huntington claims that in the post-Cold War era most confl icts will be between several civilizations that are signifi cantly informed by religion, including Islamic and Confucian countries. In particular, the new fi ght is between the (Christian) West and the Muslim – especially Arab – world. HAYNES, Jeff rey – An Introduction to International Relations and Religion – Pearson Education Limited – 2007, p. 5.

2 THOMAS, Scott M. – Th e Global Resurgence of Religion and the Transformation of International Relations – Palgrave Macmillan – 2005, p. 29.

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Globalization has two essential aspects. It me-ans a progressive homogenization of all culture and at the same time change the context in which particular culture exist, implying transfor-mation but not the disappearance of separate and recognizable identities.

Before the resurgence of religion, economics dominated the discussion of process of globalization. Th e dominance of economic issues seemed to create a great global market, in which the discussion of the place of religion within this discourse was rare.

Now, things are changing. Religion has emer-ged and has been considered so important in human history that some scholars have assured that “the idea that religion is ‘the original globa-lizer’ destabilizes the more common assumption that markets are the primary force for globalization. It also stands in contrast to the assump-tion that globalization abolishes frontiers and leads to homogeneity.” 3

Th ere are many theories that try to explain the current global resurgence of religion. Some point out to a crisis of moder-nity and assure that the deeper disillusion with the reduction of the world to what can be perceived and controlled through reason and science is the main reason to the currently rise of religion, as follows: “A consequence is that, around the globe, especially in parts of the developing world that have missed out on many of the benefi ts of globalization, many people are said to feel both disoriented and troubled, and some return to religion as a way of dealing with associated existential angst.” 4

Other scholars prefer to say “the global resur-gence of religion is the result of the failure of the modernizing, secular state to produce both democracy and development in the Th ird World. (...) Dissatisfaction with the project of the postcolonial secular state and the confl ict between religious nationalism and secular nationalism was

3 WOODHEAD, Linda – Religion in the Modern World – Routledge – London – 2005, p. 299.

4 HAYNES, Jeff rey – Op.cit., p. 159 and 160.

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one of the most important developments in the Th ird World politics in the 1990s.” 5

In this context, there is a key component that facilitates the religion resurgence: the identity. Religion “has been un-derstood in International Relations as the main source of individual and social identity. Th is approach believes religion is one of the basic sources of diff erentiation between groups. A system of religious beliefs provides followers with the main source of their identity.” 6

In other words, the revitalization of religion is a way of asserting a particular identity, and it is a prime method of competing for power and infl uence in the global system.

Independently of the real cause(s) of the reli-gion resurgence, what is possible to assure is that the idea of religious identity has changed the old fashioned notion of citizen to a new one, called “citizen pilgrim”. In other words, citizens are not only related to a country anymore, but also in many cases to a faith.

Th is new kind of citizen is a relevant key to explain the transnational character of the religions. In other words, re-ligions have acted in international level in the same way they act in domestic level, because they currently have transnational pilgrims. Ho-wever, it is not a new phenomenon; universalistic religions have had a transnational element since their creation, especially the ones that come from the Book (Christianity, Judaism and Islam), as “religion has often been a natural accompaniment of conquest and colonization. Religion can legitimate the power of conquering people over their new subject, and serve as a resource in the imposition of power.” 7

5 PETITO, Fabio and HATZOPOULOS, Pavlos – Religion in International Relations: Th e Return from Exile – Palgrave Macmillan – 2003, p. 22.

6 DARK, K. R. – Religion and International Relations – Palgrave – 2000, p. 4.

7 WOODHEAD, Linda – Op. cit., p. 302.

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Furthermore, globalization is highlighting and accelerating the transnational character of religions, because instead of being tied to the state boundaries, religions amplify their acts and performance outside of each state, using the ways, tools and mechanisms given by a global society. Indeed, individuals are increasingly their ability to communicate with each other beyond state and cultural boundaries through advances in information and communication technology. In this context, being transnational means that religious can act beyond any boundaries or state limitation.

Indeed, globalization has facilitated a constantly evolving role of religion in international relations and it has a function, “rapidly dissolving the social and economic barrier between states, transforming the world’s diverse population into a uniformed global market (…)” 8

Nevertheless, it is important to say that globalization is not a single phenomenon, but a wide-ranging one, and it must take into account not only economic and technologic issues, but also cultural and political aspects, as follows:

“Th ese quotations collectively emphasize that globalization is a controversial and multifaceted process underpinned by signifi cant intensifi cation of global interconnectedness. Th ey point to the idea that globalization implies diminution of the signifi cance of territorial boundaries and, theoretically, state-dominated structures and process.” 9

In other words, those interconnections can aff ect and encourage people with an overall implication, hard to analyze

8 THOMAS, Scott M. – Op. cit., p. 29.

9 HAYNES, Jeff rey – Op. cit., p. 68.

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and identify the real impact on daily life. It means that people, cultu-res, societies and civilizations previously more or less isolated from one another are now in regular and almost unavoidable contact. In addi-tion, “globalization – that is, the historically unprecedented current global changes characterized by swift urbanization, industrialization, environment damage, and signifi cant technological, economic and political changes – has impacted upon religion everywhere, by un-dermining traditional value systems, including in many cases those linked to religious beliefs.” 10

Even countries’ governments are experiencing challenges to their ability to govern as a consequence of globalization. Th ey have seen a growing competition for governance, as there has been “an emerging system of multilayered global and regional governance, refl ected in the growth of intergovernmental organization (IGO) at both regional and global levels.” 11

For the fi rst time in about three and a half cen-turies – since the Treaty of Westphalia (1648),12 the pillars of an order shall be questioned by deep changes in the pattern of the system. It is the classic crisis of the international order because of the intensifi cation of interdependence – due to globalization - increasing the importance of the role of international actors (NGOs, transnational corporations, groups of individuals, etc.) and the changes in International Relations.

10 Ibid, p. 159 and 160.

11 Ibid, p. 70.

12 Th e so-called Treat or Peace of Westphalia is considered the fi rst modern diplomatic congress and initiated a new order in central Europe based on the concept of state sovereignty. It is also known as the Treaties of Münster and Osnabrück, and means a series of treaties that ended the Th irty Years War and offi cially recognized the United Provinces and Switzerland. Th e Hispano-Flemish Treaty, which ended the War of the Eighty Years, was signed on January 30, 1648 (in Münster). Th e other treaty was signed on October 24, 1648 in Osnabrück, between Fernando III, Holy Roman Emperor-Germanic, the other German princes, France and Sweden, ending the confl ict between these two powers and the Holy Empire. Th e Treaty of the Pyrenees in 1659, which gave end to the war between France and Spain, it is often considered part of the Peace of Westphalia.

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Th e classical international system until now has been essentially constructed on the basis of territorially defi ned states interacting with each other, as the unique actors, with a well defi ned secular roots.

Th at crisis, although, can be explained in order as a result of the not always easy relationship between the classical international system and the performance of new international actors, represented especially by the Transnational Religious Actors (TRAs).

Th e TRAs are groups of people that try to spread their beliefs using many ways and, as the name suggest, they have a deep religious and transnational nature and follows the features of the current transnational civil societies, as follows:

“. is an expression of ‘soft power’ 13;. focuses attention on development of

regularized, often expanding, interactions that occur between individuals and groups across national boundaries;

. involves a situation where at least one participant actor in such interaction is a non-state actor;

. unlike domestic civil society, is not territorially fi xed;

. has a fi eld of action that is fl uid;

. does not operate on behalf of a national government.” 14

13 Th e concept of ‘soft power’ refers to the capability of a political body, often but not necessarily a state, to infl uence what other entities do through direct or indirect, often cultural or ideological, infl uence and encouragement. Th e idea of ‘soft power’ works from the premise that certain attributes – such as, culture, values, and ideas – represent diff erent, not necessarily lesser, forms of infl uence, compared to hard power – that is, more direct, more forceful measures typically involving armed force or economic coercion. HAYNES, Jeff rey – Op. cit., p. 40.

14 Ibid, p. 128.

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To sum up, it is possible to say that:“Th e way in which globalization has facilitated transnational religion, however, is better described as the formation of ‘transnational religious subcultures’.” 15

When religion is conceived of as a transnatio-nal idea, it is easier to locate Transnational Religious Actors in the in-ternational scenario.

Transnational Religious Actors (TRAs)

Due to globalization, transnational networks are a reality all over the world, and each of them defends theirs ideals and ideas. Th ese “ideas represent soft power in international relations because they appeal to large numbers of people around the world who, by virtue of their collective eff ort, may seek to infl uence outcomes in the directions they would like to see.” 16

Transnational religion provides the basis for transnational actors, and they can infl uence international relations through the use of force or the power of ideas.

Th ere are many examples of transnational re-ligious societies that act in international order by the TRA. One of the most successful is the ‘Christian networks’.

Due to the activities of the Christendom so-cieties, at the beginning represented by the Roman Catholic Church and executed by Spain and Portugal, there was the conquest of America with an amazing expansion of their power with signifi cant impact on

15 DARK, K. R. – Op. cit., p. 6 and 7.

16 HAYNES, Jeff rey – Op. cit., p. 125.

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international order with the establishment of European colonies. Cur-rently, the Roman Catholic Church’s transnational activities are focused on human rights issues, especially on the decades that followed the Va-tican II in 1965. As an example of this new trend, it is possible to quote the role of the Catholic Organization Sant’Egidio in ending the civil war in Mozambique in 1992.

Another signifi cant example of TRA is the Or-ganization of Islamic Conference that follows an agenda of assistan-ce, unity and solidarity among Muslim people, especially in areas of confl icts, as Palestine and Chechnya. Its main purpose is “to promote Islamic solidarity and strengthen cooperation among member states in the social, cultural, scientifi c, political and economic fi elds. Th e OIC, an organization of nearly 60 Muslim countries, sees itself as a supporter of the established international order. Th e organization sees threats to international order as a threat to the international society of states and, as a result, it seeks to develop and sustain good relations with all states, including non-Muslim ones.” 17

On the other hand, it is possible to assume that there are some TRA that play a negative role in the world, trying to impose their way by the use of violence. One of the most well known acts of those groups is the attack against some strategic points of the USA, called the 9/11 attacks. Paradoxically is that the terrorists used the globalization to spread their ideals, as said: “It seems obvious that 9/11 was calculated not simply to wreak terrible destruction but also to create a global media spectacle” 18 and at the same time, globalization was one of the reasons of their fi ght against West culture.

In this context, TRA and religion may be a part of the solution as well as the problem of international confl ict, especially when they highlight the diff erences between the civilizations, creating the ‘clash of civilization’.

17 HAYNES, Jeff rey – Ibid, p. 145.

18 Ibid, p. 172 and 173.

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Th e Clash of Civilizations and the Role of TRAs

In most countries, the decolonization after 1945 was followed by the import of policies with a foreign ideological inspiration. With more or less nationalism, from Morocco to Indonesia, excluding the Gulf monarchies, the revenue was, in essence, imported, and religion was removed from political power.

However, a new period was emerging. And it came to succeed the “Cold War” Era. At fi rst, scholars thought that a new international order shaped by capitalism would create a new and universal international system, as follows:

“If the cold war period was marked by a clear and sharp divide between opposing socioeconomic systems operating by radical diff erent standards, then the pos-cold war order could readily be characterized as one where states were compelled to play by a single set of rules within a increasingly competitive world economy. Th e term most frequently used to describe this new order was globalization, a notion that had barely been used regularly to defi ne a apparently new system of international relations.” 19

In spite of all the expectation surrounding the post ‘Cold War’ Era, the new period that emerged was the ‘Clash of Civilization Era, which is mark by the opposing view between ‘the West Society’ and ‘the Islamic Society’.

Th ere are many theories and books trying to explain and understand this subject. Perhaps, the genesis of the matter is

19 BAYLIS, John; SMITH, Steve; OWENS, Patricia – Th e Globalization of World Politics: an introduction to International Relations – Oxford University Press – 4th edition – 2008, p. 74.

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the way that the two systems (that is, secular and religious governments) interpret the world. In general, it is possible to assure that Islam has been seen as a solution to the vices of life and governments, and a safe road to eradicate poverty and corruption. One clear example of this kind of interpretation is the Iranian Revolution of 1979, which “was the beginning of the Islamic resurgence, and the most successful example of the politicization of Islam. Since then, there has been an interpretation of history, in which the glorious imperial past is associated with the presence of religion in politics and the decline appears as a result of political marginalization of Islam. In other words, the secular models are the cause of the problem and religion is part of the solution.” 20

On the other hand, in secular countries the perception is exactly the opposite. Th e secularization, which began with Renaissance and developed by the Enlightenment, is associated with democracy, prosperity and freedom of speech. “Although religion has played an important role in the consolidation of a virtuous public ethics, essentially, it should refer to the private sphere. At least, it is widely accepted the absolute separation between the political authority and religious power.” 21

Th ese historical opposing experiences may have given the radical nature of many Islamic movements, as Al-Qaeda in Afghanistan and Hamas in Gaza. Th e fact is that Islamic radical mo-vements are in opposition and fi ght against the established power, using violence, strengthening its radical nature, and they are closely linked to the global resurgence of the religion.

Th ese historical opposing views are also refl ec-ted in the way that TRAs act throughout the world. Th e radical fun-damentalist TRAs tend to act using force. Th is is easier to identify in the way some Islamic groups act, as Al Qaeda, and the violence of their

20 Center of Political Studies and International Relations (CEPRI) – Th e Islam and Democracy – João Marques de Almeida. http://ceprilusiada.blogspot.com/2006/05/o-islo-e-democracia.html.

21 Ibid.

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behavior have roots, as some scholars suggest, due to their exclusion to the benefi ts of globalization for reasons of culture, history or geography.

Other excellent examples to be quoted are the Iranian Revolution of 1979 and the role played by Hamas in relation to Israel. Th e former transformed a secular country into an Islamic fundamentalist society. Th is emergence helped to stimulate an increase expression of dissatisfaction against Western principles and values and international order in the Islamic world. Th e latter has used all the tools and ways of violence to destabilize Israel government and destroy its state.

Both of those cases, especially Hamas, demonstrate how globalization has been important to maintain alive their ideal of spreading their beliefs and receiving support to obtain their aims, specially through their Islamic networks, spread around the world. 22

In addition, there is another key element that facilitates the spread of intolerance and anger – the failed state, which means a state with a weak or ineff ective government, and with a widespread high level of corruption and criminality. A clear example of it is Pakistan that before American invasion had facilitated the formation and development of Islamic terrorist organizations.

Th is kind of radical TRAs seems to have, as all kind of fundamentalism movement, some features as: Th ey assume the presumption that Islam is the perfect social system, take advantages of failed state or dictatorial systems and try to impose their ideal by terror, force and violence.

22 http://www.justice.gov.il/NR/rdonlyres/141B6495-AB12-4CC6-A6D1-46CDF6EBF8EA/0/418.doc by Matthew Levitt - “A November 2001 FBI memorandum on the Holy Land Foundation for Relief and Development -- the primary Hamas front organization in the United States until its closure in December 2001 -- noted that Hamas “benevolent programs” like the Hebron Muslim Youth Association “are used to enhance its image and earn goodwill in the Palestinian community.” Indeed, the FBI cited electronic surveillance of a 1993 Hamas meeting in Philadelphia where Hamas fundraisers in the United States decided that “most or almost all” funds collected from that point on ‘should be directed to enhance the Islamic Resistance Movement [Hamas] and to weaken the self-rule government [Palestinian Authority].’ To that end, the Holy Land Foundation funded zakat committees tied to Hamas.”

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To sum up, it is possible to adopt a conclusion that many events have encouraged the transnational religious actors to give priority to act in international scenario and this is due to many reasons, as the events that followed the end of Cold War, but mainly as consequence of the globalization, as follows: “Th is refl ected not only generally increased involvement of religion in international relations but also highlighted how easily domestic issues can ‘spill over’ to become issue of regional or international concern.” 23

Conclusion

As a conclusion, it is clear that globalization has had an amazing infl uence in the growth of Transnational Religious Actor, and due to this, it is easier to observe better the two sides of the same coin.

At one side, with globalization, it is possible to see the positive side of the TRA’s work, as the emergence of global human rights and peacemaker groups that protect the interests of those often victimized by the same globalization. Furthermore, with the cre-ation of organizations such as the Catholic Organization Sant’Egidio, OIC, etc., whether eff ective or not, has increased means of tolerance between cultures and religions.

At the other side, globalization has highlighted the intolerance and fanatism of some groups, as Al-Qaeda, especially after the events of 9/11, which has transformed the way states will act in a new international order.

23 HAYNES, Jeff rey – Religion and International Order: Transnational Religious Actors - http://www.allacademic.com//meta/p_mla_apa_research_citation/3/1/2/4/5/pages312457/p312457-3.php

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Bibliography

ALDRIDGE, Alan – Religion in the Contemporary World – Polity Press – 2005.

BAYLIS, John; SMITH, Steve; OWENS, Patricia – Th e Globalization of World Politics: an introduction to International Relations – Oxford University Press – 4th edition – 2008.

BRUCE, Steve – Politics and Religion – Polity Press – 2003.

DARK, K. R. – Religion and International Relations – Palgrave – 2000.

HAYNES, Jeff rey – An Introduction to International Relations and Religion – Pearson Education Limited – 2007.

MAINUDDIN, Rolin G. – Religion and Politics in the Developing World: Explosive Interaction – Ashgate – 2003.

PETITO, Fabio and HATZOPOULOS, Pavlos – Religion in International Relations: Th e Return from Exile – Palgrave Macmillan – 2003.

STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context: law, politics, morals – Oxford University Press – 2nd edition – 2000.

THOMAS, Scott M.- Th e Global Resurgence of Religion and the Transformation of International Relations – Palgrave Macmillan – 2005.

WOODHEAD, Linda – Religion in the Modern World – Routledge – London – 2005.

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2008/2009 Israel Gaza Confl ict Content

Introduction

United Nations Charter

Background of the Principles of War

Civilian Protection Principle

Necessity and Proportionality Principles

Authorized Use of Force

Th e Right of Self-Defense

Preventive Self-Defense

UN Security Council

2008/2009 Israel Gaza Confl ict

Partial Conclusions

Nuclear War – Israel v Iran?

Israeli-Iranian Nuclear Deterrence

Main Determinants Aff ecting Stability of an Israeli-Iranian

Nuclear Balance

Th e Israeli Nuclear Posture: Eff ects of Iranian Nuclearization

Measures to Enhance Stability

Conclusion

Appendix

Bibliography

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* Th e topics “Introduction, United Nations Charter, Background of the Principles of War, Civilian Protection Principle, Necessity and Proportionality Principles, Authorized Use of Force, Th e Right of Self-Defense, Preventive Self-Defense, UN Security Council, 2008/2009 Israel Gaza Confl ict and Partial Conclusions” were done by Jose Anastácio de Sousa Aguiar.

*Th e topics “Nuclear War – Israel v Iran?, Israeli-Iranian Nuclear Deterrence, Main Determinants Aff ecting Stability of an Israeli-Iranian Nuclear Balance, Th e Israeli Nuclear Posture: Eff ects of Iranian Nuclearization and Measures to Enhance Stability” were done by Razim Razev.

* Th e topic “Conclusion” was done by Jose Anastácio e Razim.

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2008/2009 Israel Gaza Confl ict

“I believe a massive and united international eff ort is required to help Palestinians achieve statehood and

Israel and Palestine to live side by side in peace and security. I am determined than ever to see this achieved.”

Secretary-General Ban Ki-moon at press conference in Gaza –

20 January 2009.

Introduction

Th is essay will examine the confl ict in Gaza that involves the State of Israel and people of Palestine. In this context, it will be focused two key points: the legality of the use of force and the behavior in the confl ict itself. To achieve this aim, it will be showed briefl y the role of United Nations Charter, the background of the principles of war, the cases in which the use of force is authorized, the right of self-defense, the resolutions of the United Nations (Security Council, Human Rights Council and General Assembly) on the confl ict and the confl ict itself. At the end, it will examine a possible scenario involving an eventual confl ict between Israel and Iran.

For centuries mankind has used the appeal of war to placate their diff erences. Th is attitude has brought considerable suff ering to humans. Since twentieth century has increased the concern of nations and their leaders to fi nd proper formulas for overcoming the confl icts without the need of war, especially after the events like the invasion of Poland and ex-Soviet Union in the Second World War, as Michael Howard (1979)1 puts forward “with the intention of

1 HOWARD, Michael (1979) Restraints on War: studies in the limitation of armed confl ict Oxford University Press, p. 6.

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destroying their societies and reconstructing them as German colonies”. Th is new attitude guided the creation of the United Nations and has guided the most recent confl icts.

Tired of war, especially concerning with the destruction caused by the Second World War, the leaders of the world, representing their countries signed on 26 June 1945, in San Francisco, USA, the Charter of the United Nations that has on its preamble, as one of the main concerns “to save succeeding generations from the scourge of war, which twice in our life time has brought untold sorrow to mankind”. 2

United Nations Charter

Th e World War II changed the world in many aspects. One of them was the almost universal concern to try to avoid other wars. Th is was put as paramount in the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”3 Th is rule is extremely important especially, as Peter Malanczuk (1997)4 assures that it “is of universal validity; even the few states which are not members of the United Nations are bound by it because it is also a rule of customary international law.”

Some principles have been developed since then trying to reinforce peaceful co-existence, as Ian Brownlie (1968)5 suggests that there are fi ve principles: 1. Mutual respect for each

2 Charter of the United Nations (1945), First statement of the Preamble.

3 Charter of the United Nations (1945), Article 2, paragraph 4.

4 MALANCZUK, Peter (1997) Akehurst’s Modern Introduction to International Law 7th ed. Routledge, p. 309.

5 BROWNLIE, Ian (1968) International Law and the Use of Force by States Oxford University Press, p. 117-118.

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other’s territorial integrity and sovereignty; 2. Non-aggression; 3. Non-interference in each other’s internal aff airs for any reason of economic, political, or ideological character; 4. Equality and mutual benefi t, and 5.Peaceful coexistence.

Background of the Principles of War

Th e traditional law of war usually makes the distinction between jus ad bellum and jus in bellum, as Michael Howard (1979)6 affi rms “the former dealing with recourse to war and the latter with conduct in warfare. Th e distinction took some time to emerge. It was impeded in the medieval period by the theological-legal doctrine of the ‘just war’. Under this doctrine the major emphasis was laid upon of the authority of the Prince, the justness of the cause for which there had been resort to war and the ‘right intention’ of the individual participants.”

In the context of the history of mankind, some scholar agree that “just war” were those that are waged to redress a wrong suff ered. And based on this idea some principles have emerged as a condition for justly resorting to war (jus ad bellum), as Howard Hensel (2005)7 puts forward:

“(1) Legitimacy: only legitimate, sovereign authorities can authorize the resort of armed confl ict;(2) Just Cause: force may be used only to secure just goals;(3) Proportionality: the positive benefi ts create by a better peace following the conclusion of the

6 HOWARD, Michael (1979) Op. cit., p. 135.

7 HENSEL, Howard M. (2005) Th e Law of Armed Confl ict: constraints on the contemporary use of military force Ashgate, p. ix and x.

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armed confl ict must outweigh negative costs in human lives, damage to property, and societal dislocation incurred as a result of the armed confl ict;(4) Right Motives: the motivation for resorting to the use of armed force must be to promote good or avoid evil;(5) Last Resort: all other reasonable eff orts to resolve the dispute peacefully must have been taken before resorting to armed hostilities;(6) Prospect of Victory: except in situation involving self-defense, there must be a reasonable prospect for the attainment of the just objectives sought;(7) Declaration: the legitimate authorities must issue an explicit statement declaring the commencement of armed hostilities; fi nally,(8) Relative Justice of Cause; often, various antagonists engaged in hostilities pursue causes that are based upon relative degrees of justness.”

Related to the just conduct in warfare (jus in bello), it is possible to assure that two principles appeared as paramount:

“(1) Discrimination: a distinction must be made between combatants and objects used for military purposes versus non-combatants and properties that are not used for military purpose. Only the former may legitimately constitute the object of military operations;(2) Proportionality: the cost of military operations in terms of casualties and amount of collateral damage to civilian properties must not excessive or disproportionate compared to the military advantages gained by the partial or total

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destruction or neutralization of the contested military objectives.” 8

Civilian Protection Principle

In almost all confl icts, the group that is the most harmed is the civilian. In this context, emerge the need to protect this part of the population. Th e ideal is not new, as Howard Hensel (2005)9 has said “the principle of civilian protection had been an ancient and widely accepted rule of law of armed confl ict: not to attack civilian population or civilian objects per se, and not to attack indiscriminately. For instance, these two rules appeared in several treaties prior to the First World War, though in diff erent forms. In both the 1899 Hague Convention n.º II and in the 1907 Hague Convention n.º IV, the idea of prohibition of indiscriminate attack in land warfare appeared in the form of prohibition of attack, directed against undefended or unfortifi ed towns, as opposed to defended or fortifi ed towns.”

Th e legal international instrument related to the subject is the 1977 Additional Protocol I to the Geneva Convention explicitly stipulated the protection of civilian in a very comprehensive way (art. 48)10. Nowadays, this principle is widely recognized, as International Court of Justice (1996)11 highlighted that “the cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. Th e fi rst is aimed at the protection of the civilian

8 Ibid., p. x.

9 Ibid., p. 106-107.

10 1977 Additional Protocol I to the Geneva Convention – Art. 48. Basic Rule. In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the confl ict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

11 International Court of Justice (1996) Legality of the Th reat or Use of Nuclear Weapons Advisory Opinion (08/07/1996), item78, p. 35.

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population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suff ering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suff ering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.”

In this context, as Howard Hensel (2005)12 concludes, “no one seriously challenges the assertion today that even in non-international armed confl icts; the principle of civilian protection must apply as a matter of international humanitarian law.”

Necessity and Proportionality Principles

As said above, the events of the two World Wars led to the united eff orts to regulate the resort of states to force to settle their diff erences. Two of the most important principles to be respect in confl ict are: necessity and proportionality, as Judith Gardam (2004)13 argues that “at the beginning of the twenty-fi rst century, necessity and proportionality are fi rmly established as integral components of the law in relation to the unilateral resort to force by States. Despite the equivocal legal basis of many of the confl icts that have characterized the international community since the adoption of the United Nations Charter, State practice and opinio juris is consistent with the view that the use of force in international relation, irrespective of its alleged legal basis, must be both necessary and proportionate.”

About Necessity is important to highlight as Judith Gardam (2004)14 puts forward that “necessity is nowadays fi rmly

12 HENSEL, Howard M. (2005) Op. cit., p. 114.

13 GARDAM, Judith (2004) Necessity, Proportionality and the Use of Force by States Cambridge University Press, p. 186.

14 Ibid, p. 6.

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established as a component of legitimate self-defence. Moreover, it is assume that any forceful action must be by way of last resort in other situations where States assert the right to use force unilaterally.” To sum up, it is possible to say as Sean Macbride (1983)15 concludes that the “four basic principles that comprise the content of general international law are: Necessity, Discrimination, Proportionality and Humanity.”

Authorized Use of Force

In order to limit the use of force, the new world order that emerged from the Second World War, embodied in the United Nation Charter, established that the states member shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations (Chapter I, art. 2, paragraph 4).

Related to the use of armed force, the UN Charter consider legitimate only as an act of self-defense (Chapter VII, art. 51)16 by the individual states or in action authorized by the Security Council (Chapter VII, art. 42)17 designed to maintain or restore international peace and security.

15 MACBRIDE, Sean (1983) Israel in Lebanon International Commission, p. xix and xx.

16 Charter of the United Nations – Chapter VII – Article 51.Nothing in the present Chapter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way aff ect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

17 Charter of the United Nations – Chapter VII – Article 42.Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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Th e Right of Self-Defense

Th e article 51 of the UN Charter establishes the right of a state to use force as self-defense, but the interpretation of this article is not a pacifi c subject, as Jackson Maogoto (2003)18 assures:

“Two schools of thought have developed with regard to the scope of Article 51 - those who take the literal, or restrictive, approach and those who take the expansive view that Article 51 is considerably broader than its terms. Th e restrictionist approach cites the absolute prohibition of resort to forcible self-help as set out in article 2, paragraph 4, subject only to the limited exception contained in article 51. Th is exception permits recourse to self-defence only when faced with actual ‘armed attack.’ Th e article does not contemplate anticipatory or pre-emptive actions by a state so threatened. Rather, it requires a state to refrain from responding with like force unless actively involved in repelling an armed attack.”

Related to this subject, it is important to highlight ‘the Caroline case’19 which established the right of a state to take necessary and proportions action in anticipation of a hostile threat.

18 MAOGOTO, Jackson N. (2003) Rushing to Break the Law? Th e Bush Doctrine of the Pre-emptive Strikes and the UN Charter on the Use of the Force University of Western Sydney Law Review http://www.austlii.edu.au/au/journals/UWSLRev/2003/1.html.

19 Th e Caroline case of 1837 established the modern fundamental Anglo-American concept of self-defence. Here, during the unsuccessful rebellion of 1837 in Upper Canada against British rule, it was established that the serious threat of armed attack may justify militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, the US Secretary of State Daniel Webster outlined a framework for self-defence which did not require a prior attack. Military response to a threat was judged permissible so long as the danger posed was instant, overwhelming, leaving no choice of means and no moment of deliberation. MAOGOTO, Jackson N. – Rushing to Break the Law? Th e Bush Doctrine of the Pre-emptive Strikes and the UN Charter on the Use of the Force – University of Western Sydney Law Review – http://www.austlii.edu.au/au/journals/UWSLRev/2003/1.html

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Despite the disagreement related to the interpretation, currently it is possible to assure that the doctrine of self-defense does not permit an excessive response to even armed attack, so, as Th omas Dervort (2007)20 says “the response must be necessary and proportional, in that the magnitude of the response must be related to the magnitude of the attack.”

As said above, a wider interpretation of art. 51 of the UN Charter, as Sean Macbride (1983)21 defends, points out that the state may have “recourse to self-defense ‘to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. In addition, the State must show that it did nothing unreasonable or excessive; since the act, justifi ed by the necessity of self-defense, must be limited by that necessity.”

In addition, it is important to say that even examples of the use of the right of self-defense related to Israel are not clear, because, in general, there are, at least, two versions about the facts, as for example, the Israel attack to Lebanon in 1982, as follows: “In brief, the Israeli defense was therefore based on the assimilation of the idea of Israel security with self-defense. (…) In any event, part of Israeli argument is that Israeli’s interest in the Lebanon is not territorial but consists simply of a desire to remove a threat to its security” 22

Preventive Self-Defense

Th ere are some scholars, as Peter Malanczuk (1997)23 that has a broader interpretation of art. 51 and see it “does not limit the circumstances in which self-defense may be exercised; they deny that the word ‘if ’, as used in Article 51, means ‘if and only if ’.” Despite

20 DERVORT, Th omas R. V. (2007) International Law and Organization SAGE 1997, p. 467.

21 MACBRIDE, Sean (1983) Op. cit., p. 15.

22 Ibid, p. 4.

23 MALANCZUK, Peter (1997) Op. cit, p. 311-312.

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this, there is disagreement about the validity of the use of preventive or anticipatory self-defense. In addition, states seldom invoke anticipatory self-defense, because of the “fear of creating a dangerous precedent. (…) However, one clear example of a state invoking it occurred in 1981, when Israel bombed a nuclear reactor in Iraq.”24

Another example of the anticipatory use of force as self-defense happened when Israel attacked the Egypt Air Force, as a response to an imminent attack of the Arabic colligation: Egypt, Jordan, Syria and Iraq. However, even in this case, as Michael Byers (2005)25 concludes, Israel said that it is not anticipatory, but a response to previous attack: “Indeed, since 1945, most governments have refrained from claiming pre-emptive self-defense. Israel, concerned not to be seen as an aggressor state, justifi ed the strikes that initiated the 1967 Six Day War on the basis that Egypt’s blocking of the Straits of Tiran constituted a prior act of aggression.”

To conclude, it is possible to use the words of Ian Brownlie (1968)26 to conclude that “it is generally assumed that the customary law permitted anticipatory action in face of imminent danger. (…) It is submitted that there is considerable justifi cation for the conclusion that the right of self-defense, individual or collective, which has received general acceptance in the most recent period has a content identical with the right expressed in Article 51 of the Charter.”

UN Security Council

Currently, the Council is composed of fi ve permanent members – China, France, Russian Federation, the United

24 Ibid, p. 313.

25 BYERS, Michael (2005) War Law: understanding international law and armed confl ict New York: Grove Press, p.74.

26 BROWNLIE, Ian (1968) Op. cit., p. 257 and 280.

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Kingdom and the United States – and ten non-permanent members (with year of term’s end: Austria (2010), Burkina Faso (2009), Costa Rica (2009), Croatia (2009), Japan (2010), Libyan Arab Jamahiriya (2009), Mexico (2010), Turkey (2010), Uganda (2010) and Vietnam (2009). 27

Under the UN Charter, the Security Council has as one of its mission to maintain international peace and security in accordance with the principles and purpose of the United Nations.

Th e Security Council can determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security (art. 39 – UN Charter).

It is also its task to decide what measures not involving the use of armed force are to be employed to give eff ect to its decisions, and it may call upon the Members of the United Nations to apply such measures. Th ese may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations (art. 41 – UN Charter).

2008/2009 Israel Gaza Confl ict

Th e Gaza Strip is a coastal strip of land on the eastern shore of the Mediterranean Sea bordering Egypt and Israel. It is one of the most densely populated places on earth. Hamas assumed administrative control of Gaza following the 2006 Palestinian legislative elections and its 2007 military victory over Fatah, the secular Palestinian nationalist party. It is said that the corruption and division in Fatah and

27 http://www.un.org/sc/members.asp

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the Palestinian Authority, and Hamas’s social programs allowed Hamas to win local and Palestinian parliamentary elections. 28

Subsequently, Egypt closed the Rafah Border Crossing when EU monitors left in July 2007.29 Israel closed off all remaining access to Gaza around the same time.30 Th e blockade allowed Israel to control the fl ow of goods going into Gaza, including power and water. Palestinian groups were partially able to bypass the blockade through tunnels, some of which were used for weapons smuggling.31 Between 2005 and 2008, Palestinian groups launched over 7,200 rockets and mortars into Israel, according to the IDF (Israel Defense Force). 32

Th e Israeli-Palestinian confl ict in Gaza (2008-2009) started when Israel launched a military campaign in the Gaza Strip on 27 December 2008. Codenamed Operation Cast Lead, with the aim of stopping Hamas rocket attacks on southern Israel and included the targeting of Hamas’ members, the police force, and infrastructure. In the Arab World, the confl ict has been described as the Gaza Massacre.

A six-month truce between Hamas and Israel expired on 19 December 2008. Hamas and Israel could not agree on conditions to extend the truce. Hamas blamed Israel for not lifting the Gaza Strip blockade, and for an Israeli raid on a purported cross-border tunnel in the Gaza Strip on November 4, which it held constituted a serious breach of the truce. Israel accuses Hamas of violating the truce citing the frequent rocket and mortar attacks on Israel cities.

28 CORDESMAN, Anthony H. (2009) Th e Gaza War: A Strategic Analysis Center for Strategic & International Studies, p. 5. http://csis.org/fi les/media/csis/pubs/090202_gaza_war.pdf

29 http://www.china.org.cn/english/international/242029.htm

30 CORDESMAN, Anthony H. (2009) Op. cit., p. 7.

31 DOWLING, Kevin (2009) Strikes on Gaza continue ahead of imminent ceasefi re http://www.timesonline.co.uk/tol/news/world/middle_east/article5535747.ece

32 IDF Spokesperson Report (2009) http://idfspokesperson.com/2009/01/03/rocket-statistics-3-jan-2009/ 

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Th e Israeli operation began with an intense bombardment of the Gaza Strip, targeting Hamas bases, police training camps, police headquarters and offi ces. Civilian infrastructure, including mosques, houses and schools, were also attacked. Israel said many of these buildings stocked weapons. Hamas intensifi ed its rocket and mortar attacks against targets in Israel throughout the confl ict, hitting previously untargeted cities as Beersheba and Ashdod. On January 3, 2009, the Israeli Defence Forces ground invasion began.33

International reactions during the confl ict have included calls for an immediate ceasefi re and condemned all violence and hostilities directed against civilians and all acts of terrorism as in the United Nations Security Council Resolution 186034, and concern about the humanitarian situation in the Gaza Strip and the hindrances in delivering aid. Human rights groups and aid organisations have accused Hamas and Israel of war crimes and called for independent investigations and lawsuits.

Th e confl ict came to an end on January 18 after fi rst Israel and then Hamas announced unilateral ceasefi res. On 21 January, Israel completed its withdrawal from the Gaza Strip. In the days following the ceasefi re, the BBC reported that more than 400,000 Gazans were left without running water. Th e BBC further reported that 4000 homes had been ruined, leaving tens of thousands of people homeless.35

It is important to bear in mind related to the United Nations Security Council Resolution 1860 is that it is a binding resolution and despite that, it has been ignored by Israel and Hamas when

33 CORDESMAN, Anthony H. (2009) Op. cit., p. 36-37. http://csis.org/fi les/media/csis/pubs/090202_gaza_war.pdf

34 Resolution 1860 (2009) - Adopted by the Security Council at its 6063rd meeting on 8 January 2009.  35 BBC News (2009) Scale of Gaza destruction emerges (19 January 2009) http://news.bbc.co.uk/1/hi/world/middle_east/7836869.stm

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it was issued (8 of January 2009). Th e continous international community pressure and the edition of two other UN resolutions (Human Rights Council Resolution on 12 of January 200936 and General Assembly Resolution on 16 of January 200937) together with the Resolution 1860, had a strong impact toward the end of the confl ict on 21 January 2009.

Partial Conclusions

Th e facts related to Israeli invasion to Gaza are not clear yet. It seems to be early to conclude if Israel or Hamas have committed war crimes. A four-person team has been appointed by United Nations Human Rights Council to investigate alleged violations of International Law, including possible war crimes. 38

It seems that States and non-state actors continue to use force in their own interest, and almost any rationale can be used to claim that this is done in legitimate self-defense. Th e opponents of war – or any given side -- can claim that virtually any act of violence is excessive. Th e advocates of force can claim that virtually any act is necessary.

However, all of these positions ignore the fact that war remains inherently amoral, regardless of it endless eff orts to defi ne legitimacy and just wars. Wars can and should be fought with restraint, but war will still ultimately be about killing and destroying until the confl ict ends. Th is does not excuse any use of force where there clearly are ways to avoid civilian casualties and collateral damage

36 United Nations Human Rights Council Resolution - Th e Grave Violations of Human Rights in the Occupied Palestinian Territory particularly due to the recent Israeli military attack against the occupied Gaza Strip - 12 January 2009.

37 United Nations Security Council Resolution adopted by the General Assembly [without reference to a Main Committee (A/ES-10/L.21/Rev.1)] ES-10/18 - General Assembly resolution supporting the immediate ceasefi re according to Security Council resolution 1860 (2009) - 36th plenary meeting - 16 January 2009.  38 BBC News (2009) UN seeks $ 11m for Israeli raids (6 May 2009)http://news.bbc.co.uk/2/hi/middle_east/8036054.stm.

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and achieve the same military objective. It does not excuse any failure to take humanitarian action where this is required by international law.

Nuclear War – Israel v Iran?

“This cancerous tumor of a state be removed from the region.”39

Th e end of Second World War had brought another series of armed confl icts. It started with the formation of State of Israel, and occupation of Palestinian territories. Th e ‘confl ict with no end’ lasts for ages, and the last Israeli invasion of Gaza strip showed how naive thoughts about peace. Th e consequences of this confl ict even worse than they might seem, Hamas activists who are in charge in Gaza are supported by Iran and other Arab states. Its not a secret how dangerous can be involvement in the confl ict of Iran, the possibility of using nuclear weapon becomes one of the possible means of fi ght.

Iran has repeatedly accused Israel in aggression against Palestinians and expressed a desire to blow up the whole state, which was accepted quite seriously in Israel. “Israel — and not only Israel — cannot accept a nuclear Iran,” Sharon warned. “We have the ability to deal with this and we’re making all the necessary preparations to be ready for such a situation.”40 Th ese statements show how Israel is going to respond on any threats form Iran. Full support of US administration makes clear what kind of confl ict may arise between Iran and Israel. Iranian nuclear program is a sty of western powers, with Americans who take a strong line regard Iranian authorities and its nuclear program. Th e tensions between Iran form one side and Israel and American from may bring dramatic results for each side. Mutual threats of possible attack may fi nd ground in current situation.

39 Iran’s supreme leader Ayatollah Ali Khamenei’s statement on Israel.

40 http://www.timesonline.co.uk/tol/news/world/article757224.ece

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Israel carried out a major military exercise earlier this month that American offi cials say appeared to be a rehearsal for a potential bombing attack on Iran’s nuclear facilities.41 Th e potential war between two states proved to be possible after the last Israeli operation in Gaza, Iranian authorities announced full support of Hamas, alongside with provision of weapons and arms. Israeli neighbours, such countries as Lebanon and Syria are also in full support of Hamas movement and the involvement of these states will not make Iran to stand out of the confl ict. “As soon as the green light is given, it will be one mission, one strike and the Iranian nuclear project will be demolished,” said one of the sources.42 So Israel is fully prepared for a prospective war with Iran, as all the above mentioned statements prove how seriously they plan to react.

Th e documentary prepared by BBC 2 revealed some evidence on how Israel is going to respond on a possible aggression from Iran and in what stage there is a preparation of a preventive strike of Israeli forces.43 As a main threat the Israeli authority considers Iranian nuclear weapon, which they think has been developing to destroy State of Israel, and now the question is whether they (Israel) are going to wait or take its own measures to defend itself.

Iranian offi cials have claimed that by 2020, the country’s growing population and the expected global demand for oil will require the extensive use of nuclear power to meet Iran’s increasing energy needs while still enabling signifi cant petroleum exports.44 Iran is developing both indigenous uranium enrichment capabilities to produce weapons-grade uranium and a heavy-water

41 http://www.nytimes.com/2008/06/20/washington/20iran.html?_r=1

42 Ibid.

43 BBC News (2006) Will Israel bomb Iran? Th is World (10 October 2006).

44 AGHAZADEH, Reza (2003) Iran’s Nuclear Policy: Peaceful, Transparent, Independent presentation by the vice president of Iran, IAEA headquarters, Vienna, Austria.

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plutonium production reactor and associated facilities for reprocessing spent fuel for plutonium separation.45 So while Iran is developing its nuclear weapon Israel is not sitting and waiting.

Israel has prepared its own plan of possible attack on Iran. Th e Israelis have three possible attack routes. Th e fi rst is to fl y north over the Mediterranean, refuel from airborne tankers, and then fl y east over Turkey to Iran. Th e second is to fl y southeast, skirt Jordan and Saudi Arabia, and then to northeast across Iraq (essentially the Osirak route), possibly refueling in the air along the way. Alternatively, the Israelis could to northeast across Jordan and Iraq. Finally, they could to southeast and then east along the Saudi-Iraqi border to the Persian Gulf and then north, refueling along the way.46

Taking into account the full scales of Israeli preparations and readiness to destroy Iranian nuclear bases, there is no doubt that they will do it. Why can it be possible, simply because they did to Iraqi Osirak nuclear reactor on 7th June, 1981 air strike which heavily damaged the nuclear plant. Th e success of that operation had forced Iraqi government to forget about nuclear weapon for long time. So why would not they do the same in Iran? But is it just because of the nuclear weapon? It would be naïve to think that Israel acts with no permission of US administration. Th e US involvement in this tension has its own interest, as Iran with its rich oil resources and the only great power in the region, is out of the US control.

Th e US therefore seeks regime change in Iran for classical realist reasons. Installing a pro western Iranian government is also longstanding goal in the neocon vision of “a new Middle East”, which is informed by a confl ation of corporate interests, militarism, Zionism, and recidivist notions that the US must play a vanguard role

45 FRANCE presentation (2003) Latest Developments in the Nuclear Programme in Iran, In Particular on the Plutonium Way Nuclear Suppliers Group 2003 plenary meeting, Pusan, Republic of Korea.

46 RAAS, Whitney, LONG, Austin (2007) Osirak Redux?” Assessing Israeli Capabilities to Destroy Iranian Nuclear Facilities.

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in the West’s anti-Islamic civilizing mission.47 As the main ally of Israel in the Middle East, the US will give its own green light when to start operation. It may appear in the UN Security Council resolution where it would be stated the necessity of Iranian intervention.

A major air strike on Iran requires a suffi cient casus belli, however, or at least suffi cient political cover to secure international passivity. Public statements by Israel an the US over the past year have therefore attempted to cultivate an international consensus conductive to military intervention against Iran; especially, through a disinformation campaign exaggerating intelligence about Iran’s intensions and capacity to develop nuclear weapons, coupled with a push in the security council (SC) to pass a resolution that will legitimize force against iran if it doesn’t abandon its uranium enrichment program (on the apparent expectation that Iran will refuse to do so).48

Israeli-Iranian Nuclear Deterrence

Presently, Israel and Iran – as leading regional powers – perceive each other as major adversaries. Th e extreme ideological stance that Iran has adopted vis-à-vis Israel, Iran’s support and encouragement of armed hostilities against Israel, andits eff ort to sabotage the peace process has turned Iran into one of Israel’s staunchest enemies. Iranian nuclearization, therefore, appears as a major existential threat to Israel. In turn, the Israeli international diplomatic eff orts against Iranian nuclearization and the implied military threats to destroy the Iranian nuclear facilities have enhanced Iranian hostility toward Israel. A potential source for confrontation might result from a clash between Israel and a neighboring state allied to Iran, or between Israel and a sub-state armed organization (Hizbollah).

47 HOVSEPIAN Nubar, KHALIDI, Rashid (2007) Th e war on Lebanon A reader p. 295.

48 Ibid.

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Th ere is no scientifi c way of assessing the probability that an extreme Iranian regime would attempt the fi rst use of Iranian nuclear weapons out of an ideological drive to destroy Israel. Hypothetically, a regime that is totally devoted to the pursuit of its extreme ideological objectives and is even ready to sacrifi ce part of its population might entertain this option. Th is presumably might become a more viable option if Iran accumulated an arsenal with several dozens of bombs and credible delivery vehicles, and on this basis, might hope that using all of them against Israel would destroy all of Israel’s nuclear capabilities. If some remained, then Iran would be ready to absorb a limited Israeli counterstrike49.

However, in view of Israel’s widely assumed large nuclear arsenal and numerous delivery vehicles, including various protected platforms that form a second strike capability, it appears highly improbable that even a fanatic leadership would choose such a policy. Th e dangers are enormous, not only to Iran as a country but fi rst and foremost to the regime itself. No regime, even if endowed with the most extreme ideology, chooses to commit suicide50. Moreover, Iran must consider not only Israel’s second strike capability, but also the high probability of a devastating American response.

Main Determinants Aff ecting Stability of an Israeli-IranianNuclear Balance

Regional political context. It is a commonplace that the Middle East has long suff ered from political instability in the form of confl icts, arms accumulation, and wars – between Arab states, between Israel and the Arabs, and between Iran and Iraq – as well as intensive domestic instability in many areas. However, certain long term and mid range processes have introduced important modifi cations to the

49 PARSI, Trita (2008) Treacherous Alliance: Th e Secret Dealings of Israel, Iran, and the United States Yale Univeristy Press pp.10-11.

50 MENASHRI, David (2001) Post Revolutionary Politics in Iran: Religion, Society and Power London: Frank Cass p 130.

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regional system, which thus departs in some signifi cant ways from what existed until the 1980s. Th e Arab state system has undergone radical changes, and Arab states as a group have lost much of their infl uence over regional developments. Among Arab states, the infl uence of Syria has deteriorated. Th e United States has gained an unprecedented power position in the region. Most of the Arab regimes are clearly oriented towards the West; Egypt and Jordan have peace treaties with Israel; and in general Arab nationalist radicalism has declined as a mobilizing and unifying force51.

All the Arab regimes presently perceive of radical militant Islam as their main threat and share a vital interest in resisting it. Th ese trends appear to enhance the prospects for greater political and strategic stability. On the other hand, the continued Israeli-Palestinian confl ict, the pressure of domestic forces backing militant Islam, the rise of Iran under a radical fundamentalist Islamic regime, the uncertain future of Iraq, and the possibility that region-wide terrorism would increase following the expected withdrawal of American forces from Iraq all continue to serve as sources of instability. Currently, the only neighboring Arab state hostile to Israel is Syria.

It is of course diffi cult to predict what Syria’s international orientation and its relationship with Israel will be in several years time, once Iran acquires a nuclear capability. But if it maintains its current foreign policy and if it establishes a defense alliance with Iran, the potential for Israeli-Iranian escalation will increase52.

Number of Main Actors. Th e deep suspicions that most regional actors have about Iranian intentions might lead to further proliferation were Iran to nuclearize. Saudi Arabia (with possible help from Pakistan), Egypt, and Turkey are considered possible

51 MORRIS, Benny (2009) One State, Two States: Resolving the Israel/Palestine Confl ict Yale University Press p. 30.

52 Ibid.

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nuclear contenders. Multipolar “anarchical” systems (namely devoid of a central power imposing stability) would severely complicate rational decision making during nuclear crises. Territorial Contiguity. Similar to the superpowers context, Israel and Iran do not have common borders and have no direct confl icting territorial claims. Th is reduces to an extent the potential level of friction between the two states and the potential for direct military friction. A possible future deployment of Iranian forces in Syria as part of a defense alliance might increase the danger of direct confl ict. Regime, Society, and Socialization in Nuclear Aff airs. At issue is to what extent the type of regime and the degree of social coherence aff ect control over nuclear systems and the nature of decision making53.

Past experience suggests that authoritarian regimes can have as eff ective control over nuclear systems as democratic ones. Th e problem with Iran regarding control, therefore, is not its lack of democracy, but the possibility of violent domestic political changes and also frictions between diff erent regime agents regarding control of nuclear assets. Extreme ideological positions and distorted and paranoid perceptions of the adversary’s intentions might lead to irrational decisions during times of crisis. Finally, it is not clear to what extent the Iranian leadership and the high level bureaucracy in charge of defense policy have undergone a process of socialization (i.e., education) in the nuclear “facts of life.” Th is usually takes a long time, and – as the Indian-Pakistani crises demonstrated – opponents’ diverse interpretations of events could lead to quite diff erent understandings of the role played by nuclear weapons54.

It can be assumed that after almost forty years of purportedly having a nuclear capability Israel has adopted eff ective means

53 STEIN, Kenneth, SICK, Gary , LEVY, Daniel, and MENASHRI, David (2009) Sh’ma: A Journal of Jewish Responsibility -- Iran, Israel, and U.S. Foreign Policy (Iran, Israel and U.S. Foreign Policy) Kindle Edition p. 45.

54 Ibid.

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of control over its nuclear systems. However, there is still a broad need for further eff ort to be invested in the socialization in nuclear aff airs and the study of various contingencies involving nuclear aff airs. Furthermore, the extreme ideological positions of Iran coupled with continued existential concerns that haunt the Israeli public and leadership might adversely aff ect rational decision making.

Second strike capability is an issue that has been enshrined in the theory and practice of nuclear deterrence. In its absence by one side, a nuclear rival might entertain the hope of destroying completely the nuclear assets of its opponent and consequently expose it to unlimited military and political demands. At the same time, the party lacking second strike capability might be tempted to strike fi rst, in the hope that it would at least curtail the expected damage that might be caused by the inevitable fi rst strike by its adversary. Th us, theoretically, for the balance to be stable both sides need a second strike capability. Under conditions of uncertainty about the second strike assets of both sides, mutual anxieties might lead to fi rst strikes. At the sametime, there is no need to emulate the superpowers model exactly for a regional nuclear balance to be stable55.

Th e classic triad of strategic forces with all its components is not essential. Rather, what is surely necessary is that each side has suffi cient known or assumed capabilities to create a signifi cant measure of certainty by its adversary that it has the capability to strike back and thus cause unacceptable damage to the other side. Conditions for accomplishing this vary from one context to the other. In the Israeli-Iranian case, unacceptable damage would mean a high level of destruction to the main urban centers and especially to the centers of government and the command and control facilities. Th ere is possibly an asymmetry between Iran and Israel in regard to the eff ect of second strike capabilities. In view of repeated declarations by Iranian leaders

55 GILDER, George (2009) Th e Israel Test Richard Vigilante Books 1st edition p. 121.

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that Israel should disappear from the map, versus the complete absence of interest on the part of Israel in causing devastating damage to Iran and its people per se, the need for an Israeli second strike capability is more emphasized for mutual deterrence stability56. Th e absence of an Iranian second strike capability would not therefore “invite” an Israeli fi rst strike per se.

Th e mutual images the parties have of second strike capabilities would be based on some calculations, be they even crude, about the survivability of the rival’s nuclear systems. Israel maintains a veil of ambiguity over all its nuclear capabilities, but international sources have suggested that it has a large arsenal of warheads (60-80, according to one American offi cial estimate, up to 200 according to the IISS, and more according to other possibly less reliable sources)57. In addition, it has been widely suggested by foreign sources that Israel’s warheads are carried by both aircraft and missiles, with suffi cient ranges to hit Iran. Both the airports and the missile silos are presumed to be hardened. Th us, it can be assumed that no rational decision maker would doubt the Israeli capability to strike back at Iran if the latter decided to launch a counter force fi rst strike.

In the Israeli-Iranian context, the dangers of early warning failures are much higher than was the case in the superpower context. First, because of the short distances, the warning lead time is much shorter, and therefore the scope for mistakes is wider. Th is might be even worse were Iranian nuclear missiles or aircraft to be deployed in areas nearer to Israel. Second, while Israeli early warning systems are developed and sophisticated, this cannot be said about the Iranian counterparts. Th ird, since additional actors might be involved in an Israeli-Iranian crisis, the ability of early warning systems to

56 Ibid, p. 122.

57 ITAR-TASS Th e Military Balance (2007) Iran celebrating day of nuke technology.

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carefully detect and diff erentiate incoming fl ights or missile launches from the outside would be much more complicated than was the case in the superpowers context58.

Fourth, it would be virtually impossible to determine what kinds of armaments are carried by incoming aircraft or missiles: conventional, biological, chemical, or nuclear. Diff erent munitions, however, require diff erent responses. Th ese points relate primarily to the technical dimension of early warning systems. Equally important is the ability of decision makers to make rational decisions upon receiving early warning signals. Misperceptions about the intentions of nuclear adversaries could easily lead to disastrous consequences. Th us, for example, the image of Israel as the “small Satan” An Israel-Iran Balance of Nuclear Deterrence: Seeds of Instability that is invoked regularly among the current Iranian leaders might lead to mistaken conclusions about Israeli military steps59.

Any early warning of incoming fl ights from the assumed direction of Israel might be construed as an Israeli nuclear attack, or alternatively of a conventional attack designed to neutralize Iran’s nuclear capability. It is likely that the conceptual background of Israeli decision makers would be at least partly aff ected by images of Iran’s presumed desire to destroy Israel. Th is might provoke an Israeli decision to launch a preemptive counterforce nuclear strike against Iran if there are signals that an Iranian fi rst strike is imminent. Extremely short time spans for making such decisions and the possible built-in technical problems involved in any early warning system coupled with the relatively short distances involved might cause very signifi cant diffi culties for rational and cautious decision making.

58http : / /www. i i s s .org/publ ica t ions/ade lphi -papers /ade lphi -papers -2007/ i ran-under-ahmadinejad/?locale=en

59 Ibid.

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Th e Israeli Nuclear Posture: Eff ects of Iranian Nuclearization

Because of its offi cial strategy of ambiguity, the Israeli nuclear posture has never been formally articulated. Indirect evidence, however, coupled with a body of observations and speculation based on rational analysis leads to several assumptions about it. In the fi rst place it comprises general deterrence, that is, deterrence against a general Arab attack on Israel that constitutes an existential threat60. A second component is a weapon of last resort posture, either as a deterrent or in actual use under conditions of imminent defeat. Th e application of such a strategy raises tremendous problems: defi nition of the threshold where “last resort” uses should be invoked; to what extent eff ective deterrence could be achieved at a very last stage; and most problematic, the implications of the actual use of nuclear weapons. Th ird, there are various possibilities of specifi c or immediate deterrence, namely direct deterrence in times of crisis. Finally, there is deterrence against the use of other types of weapons of mass destruction61.

Currently, the probability of situations in which nuclear general deterrence is relevant and even more so the posture of weapons of last resort is extremely low. On the political level, Egypt and Jordan have peace treaties with Israel; Syria is isolated and very weak; and Iraq has no military power. In addition, due to many developments, Israeli conventional superiority over its opponents is highly defi ned. Finally, the American-Israeli strategic cooperation contributes considerably to Israel’s overall deterrence. Given this background, general deterrence could be based primarily on conventional superiority. Th e nuclear capability should be considered as an additional safeguard against major adverse changes (though apparently at present with very low probability) in regional politics62.

60 FELDMAN, Shai (1982) Israeli Nuclear Deterrence New York: Columbia University Press p. 165.

61 EVRON, Yair (1994) Israel’s Nuclear Dilemma Ithaca: Cornell University Press p. 56.

62 Ibid.

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However, the situation might become more complicated were Iran, for example, to become involved in defense commitments in conjunction with an Arab military coalition. Here specifi c deterrence is relevant. Adversarial regional actors might perceive the role of Iranian nuclear threats as a component in their armed confl ict with Israel. Th ey might assume that an Iranian deterrent “umbrella” would undercut Israel’s “escalation dominance” capabilities. Consequently, they might assume that Israel would be constrained in its responses to Arab military attacks. Were deterrence to fail and should Israel escalate with all its military might under conditions of military superiority, escalation to the nuclear level might ensue.

In this context, Israel might be less confi dent in either employing highly off ensive measures to bring about the complete destruction of adversary An Israel-Iran Balance of Nuclear Deterrence: Seeds of Instability forces or deeply penetrating its territory. To be sure, such exercise of Israeli force may in any event not be benefi cial from Israel’s point of view, since the experience of all prior Israeli-Arab wars has already demonstrated that an Israeli total victory is very problematic. Israel has always found it diffi cult to translate military victory into a major political achievement. (Th e Israeli- Egyptian peace process did indeed take place following the occupation of the Sinai by Israel in 1967, but only after Israel agreed to withdraw from the Sinai and with the convergence of additional conditions)63.

In all these potential situations mutual nuclear deterrent threats might be invoked. Preventing escalation to the nuclear level would depend on several factors, many of them described here. Delineating some rules of engagement accepted by both regional nuclear powers might become necessary in order to prevent dangerous escalation. Israeli nuclear deterrence against the use of chemical and biological agents would become much more dubious. If deterrence failed, it would be irrational for Israel to use nuclear weapons and

63 EVRON, Yair (1998) Weapons of Mass Destruction in the Middle East Occasional Paper 39 Washington D.C.: The Henry Stimson Center p. 80.

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thus cross a dramatic threshold, providing legitimization for the use by opponents of similar weapons.64 Th is line of reasoning could be followed by adversaries and lead to the conclusion that Israel’s nuclear deterrence against the use of chemical and biological agents is not credible. Th is implies that Israel should develop a posture of escalation dominance where nuclear deterrence is limited only to deterrence against adversarial use of nuclear weapons.

Measures to Enhance Stability

Th e fi rst measure to enhance stability involves political relations. Th ere are suffi cient reasons why Israel should have an interest in securing peace with Syria and managing its relationship with the Palestinians, but in addition such developments would considerably curb the dangers resulting from a nuclearized Iran. Th e second measure involves American and international eff orts that could contain further proliferation in the Middle East, including the extension of American defense guarantees to regional countries and the strengthening of the global non-proliferation regime, which might constrain proliferation inclinations65. On the other hand, global drifting towards wider proliferation, be it even to status quo powers, might enhance regional tendencies towards proliferation.

In addition, establishment of direct communications between Israel and Iran could serve as an important mechanism in redressing dangers involved in the nuclearization of Iran. Th is presumably will have two functions: fi rst, improving the overall relationship between Israel and Iran in order to reduce threats of friction leading to escalation. Whether such an improvement is possible given the signifi cant gaps between the two countries remains to be seen.

64 FELDMAN, Shai (1991) Israeli Deterrence: Th e Test of the Gulf War in Joseph Alpher ed War in the Gulf: Implications for Israel (Tel Aviv: Jaffee Center for Strategic Studies, Tel Aviv University) pp. 170-189.

65 Ibid.

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Second, even in the absence of political improvement, communication designed to manage critical crises should be developed. Th ird parties could also play a role in communicating between the parties. Were American-Iranian relations to improve, the US could act as a crisis manager, receiving and delivering messages between the two adversaries. Alternatively, a neutral organization might act as a conduit.

Th ere is a diff erence between two types of crisis management: fi rst, when an impending potential crisis is monitored and attempts are made to defuse it before it materializes; second, dangerous escalations in which there is an immediate development requiring response. Th e hot line established between the superpowers was designed to contend primarily with the second type. Ultimately, in order to preempt potential catastrophic results of the second type, direct lines of communications are necessary. In addition – and the following comments touch only on the Israeli dimensions – is the issue of nuclear socialization. It is important for decision makers to consider much more intensively the various scenarios and possibilities that might arise within the context of an Israeli-Iranian nuclear relationship. Indeed, under conditions of crisis, decision makers tend fi rst to rely on standard operating procedures that were already formulated beforehand. A doctrine for nuclear behavior will then gain high prominence in the decision making process66.

A “bounded rationality” model fi ts this crisis behavior. Formulating various contingency plans and an overall doctrine is also part of the socialization of decision makers on nuclear issues. Th ere are some very general issues that merit more extended discussion. First, the actual use of nuclear weapons is such a momentous event with many unexpected and potentially devastating consequences that it should be avoided in almost all circumstances. Th erefore there should be a gap between deterrence threats and the actual exercise of the threats. While Israel might fi nd it necessary to issue deterrence threats

66 ALEXANDER, Yonah and HOENING, Milton (2007) Th e New Iranian Leadership: Ahmadinejad, Terrorism, Nuclear Ambition, and the Middle East Praeger p. 45.

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that could be interpreted as nuclear, the actual exercise of such threats should be left to further discussion should deterrence fail67. At the same time, the realization of this critical gap between threat and its exercise should also inform the nature of the deterrence signals. Second, Israel should not automatically emulate the strategies and their underlying rationales adopted by the United States.

For example, in contrast to current American strategy, Israel should not threaten nuclear retaliation for adversarial use of chemical and biological weapons. Deterrence relies to a certain extent on uncertainty. However, both sides should perceive the other as primarily a rational actor. Contrary to the famous formulation of the “rationality of irrationality” and to notions of “crazy states,” nuclear deterrence should be conducted primarily as a rational instrument, and hence exercised only in the most critical circumstances. Th ese observations should refl ect also on various scenarios for “last resort” and battlefi eld uses. Th e possibility of an American-Israeli defense treaty requires a separate analysis. Such a treaty could probably enhance deterrence against Iranian irrational behavior68.

Finally, there is the question of “no fi rst use,” which also requires a separate analysis. An agreement for no fi rst use would arguably serve the strategic interests of both parties. It could materialize either through formal agreement or through unilateral steps such as declared doctrine for no fi rst use.

Why is Iran developing nuclear weapons? It can be estimated that there are four main motivations behind Iran’s eff orts: deterrence; promotion of regional hegemony ambitions; promotion of internal support of the government; and the threatening of “enemies,” and the possible use of its nuclear weapons, either without provocation

67 ALAM, Anwar (2009) Iran and Post-9/11 World Order: Refl ections on Iranian Nuclear Programme New Century Publications p. 159.

68 Ibid.

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or as a retaliatory measure. Th e utilization of the fi rst three needs the proof or apparent proof of the potential to deploy and use nuclear weapons. Th e fourth would probably need a credible self-assurance of this capability, since failure could lead to grave consequences for Iran. In the interim stage, before achieving a military nuclear capability, Iran has a variety of options, whose pursuit would determine the world’s attitude towards Iran and would also infl uence the Iranian public’s attitude towards its government69.

Many experts claim that “the government of Iran is rational.” Th at may well be true in a very general way. Th e history of recent years demonstrates, however, that the Iranian government’s rationale is not always similar to that employed by others, for example Western governments. Th e basic aims of the state, the basic values of Iran, and the methods used to achieve these aims diff er markedly from those of today’s Western states. Th e theological state, the support of terrorism, the abuse of human rights, the unwillingness to even negotiate a solution to the nuclear issue, the fi erce statements against Israel, and many other facts demonstrate this.

On the other hand, the Iranian negotiating tactics and their use – if not manipulation – of the international community’s institutes and approaches are admirable, in that they try to present a “sensible” point of view that succeeds in winning precious time for Iran. Th us, the government is behaving in a rational way, according to its own beliefs and political aims. Does the Iranian government view its nuclear weapons in the same way that most of the world does? Th e common wisdom is that nuclear weapons are weapons of deterrence, and are not intended for use in anger. What are the Iranian internal constraints; what are its checks and balances on the deployment and use of nuclear weapons? Would Iran also view nuclear weapons mainly as a deterrent and not as a weapon in a usable arsenal? Iran must also take into consideration the retaliatory capabilities of those the weapons would target, their allies, and those who would fi nd themselves in an

69 MELMAN, Yossi and JAVEDANFAR, Meir ( 2008) Th e Nuclear Sphinx of Tehran Basic Books 2008 p. 146.

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untenable situation should Iran demonstrate its political capability to attack others with nuclear weapons. What is the price Iran would be willing to pay for such an action? Th ese questions are not answerable at the present time. Th erefore, it must be assumed here that there is a possibility the Iran would put its nuclear weapons to direct use.

However, in order to be considered as an option for use, these weapons must fi rst demonstrate, at least to Iran’s own satisfaction, a reasonable probability of reaching their target and a high expectancy of reasonable performance. Iran’s development of a major missile capability, as described above, is well known and publicized by Iran itself. Iran also has a limited long range aircraft capability for delivering a nuclear weapon aided by some airborne refueling capability. Although Iran has a small submarine force, it is not certain whether it could deliver a nuclear weapon to distant targets. In an extreme case Iran could also use a nuclear explosive device in a crude, non-military form and place it inside a commercial airplane, a container, and so on, and transport it to its destination in a non-military fashion70.

It is quite certain that Iran is proceeding on a well-laid technical plan to acquire a military nuclear capability. While the previous regime in Iran did permit international pressure to infl uence the timetable of its nuclear development project, it is apparent that the reemergence of a conservative, fundamentalist regime brought about a decision not to let international political action infl uence the way Iran is proceeding towards the completion of its aims. It can be estimated that Iran will continue with its program with minimal regard of international obligations, until it is necessary to act otherwise. Iran will likely strive to achieve the maximum potential for quickly producing nuclear weapons under the IAEA safeguards, while not ostensibly acting outside its legal obligations. However, it is also

70 Two of Israel’s leading analysts, Dr Adir Pridor, founding head of the Institute for Industrial Mathematics, and Dr. Oded Brosh, Director of Studies at the Institute for Policy and Strategy in the Interdisciplinary Institute of Herzliya, voiced similar views on the rationality of Iran’s way of doing business. See addresses at the 2008 He22, 2008

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quite probable that Iran will develop a concealed parallel enrichment program. Th is will certainly not be on the scale of the overt enrichment program at Natanz71.

Th erefore, Iran would need much more time for the development of a viable nuclear arsenal. It is also reasonable to assume that Iran will continue with the development and later production of the nuclear explosive mechanism. Th is would certainly be ready when the necessary amount of HEU would be produced. Moreover, if and when Iran would declare its nuclear weapons capability, its Natanz facility could have already provided enough LEU for the rapid conversion to military grade HEU. Iran would then be the owner of not only a minimal military nuclear capability, but a considerable versatile nuclear force, consisting of many warheads, deliverable by the variety of means at its disposal72. In order to extract all benefi ts from this situation, Iran will need to declare and perhaps even demonstrate this capability. It will do so, however, only when the time is ripe, according to its own assessment of the situation. As time goes on, it will become more and more diffi cult for the world to deter or stop this development. Th ere are many means the world could use to this end, but viable options will become limited in direct proportion to the progress of the Iranian programme. Th e hope for using carrots as a means of persuasion is already almost nil, and one-sided concessions would certainly backfi re.

71 PEDATZUR, Reuven (2006) Th e Iranian Th reat – Is It so Dire? Nativ 2 no. 109 p. 39.

72 Ibid.

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Conclusion

Th e facts surrounding the Israel/Gaza Confl ict still remain unclear. On May 5th 2009, a UN report was issued accusing “Israeli army responsible in six cases in which UN property was damaged and UN staff and other civilian hurt or killed, Israeli military’s military actions involved varying degrees of negligence or recklessness, Israeli military took inadequate precautions to protect UN premises and civilian inside.” 73

Related to the accusation against Israel of war crime and other violations of law, “a four-person team has been appointed by the UN Human Rights Council with a mandate to investigate alleged violations of international law including possible war crimes.” 74

Until the fi nal revision of this essay on May 8th 2009, it seems that much can be discovered in the future, but, at the same time, all will depend on the importance that those investigations will receive by United Nations, because as the UN Secretary-General Ban Ki-moon said on May 5th 2009, “more importantly, we need to give new momentum to the search for a resolution of the confl ict in the Middle East. For this, direct Israeli-Palestinian negotiations must resume and the international community must engage.” 75

Indeed, it is extremely diffi cult to ignore the importance of United Nations and its Charter in the current international order, especially in reducing the existence of international wars and in the intense development of peace principles and treaties. Besides this, it is important to highlight the development of international law and the creation of increasingly eff ective peace mechanisms for action in this area.

73 BBC News (2009) UN seeks $ 11m for Israeli raids (6 May 2009) Op. cit.

74 Ibid.

75 Ibid.

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Despite that as Peter Malanczuk (1997)76 assures “the biggest defect in the modern rules is that they are often imprecise. Practice has done little to reduce this imprecision.” However, International Law as United Nations itself is “a mirror of the world in which we live, and there can not be a perfect United Nations in an imperfect world.”77

It is possible to conclude about the confl ict Israel/Palestine 2008/2009 that the International Community and the UN Security Council has seen the invasion of Gaza by the Israel troops as a self-defence attack.78 On the other hand, both (International Community and UN Security Council) recognize that Israel has not used proportional force in its attack and has used illegal weapons against Gaza, causing unnecessary suff ering in Gaza’s civilian people.

It is also possible to reach a general conclusion of this confl ict, which international law may help to protect civilian population and avoid confl ict. However, to assure those mechanisms to be effi cient, it is necessary the existence of political will of the International Community, especially the most powerful countries, to implement them properly.

In Israel-Palestine Confl ict, it seems that much has been doing, but much more remains to be done, because peace seems just a distant idea. Hamas predictably will continue its operation against Israel whatever situation is. Th e Iranian support with weapons, the recent condemnation of world elite and demonstrations in all over the world against operation in Gaza, the hidden support of pro-Palestinian activists in Egypt and Syria inspiring Hamas to fi ght with no end, and as long as the Gazans continue to support Hamas

76 MALANCZUK, Peter (1997) Op. cit., p. 341.

77 Ibid, p. 430.

78 Gur, Haviv R. (2009) Law professor: Hamas is a war crimes ‘case study’http://www.jpost.com/servlet/Satellite?cid=1231866576202&pagename=JPArticle%2FShowFul

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fi ghters, they are not going to stop. Th ere is no doubt that Israel is going to attack anyone who materially supports Hamas, the bombardment of convoy with weapons in Sudan, which was going to be delivered to Hamas fi ghters, proves it. .”Israel hits every place it can in order to stop terror, near and far,” said Olmert.79 More than that, 17 trucks were destroyed and between 30-40 people pronounced dead, was it a direct warning to Iran and how Iran will react in that case time will show.

79 http://www.thenation.com/blogs/dreyfuss/421476/israel_bombed_sudan

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Appendix

Resolution 1860 (2009) Adopted by the Security Council at its

6063rd meeting on 8 January 2009

Th e Security Council,Recalling all of its relevant resolutions, including resolutions

242 (1967), 338 (1973), 1397 (2002), 1515 (2003) and 1850 (2008),Stressing that the Gaza Strip constitutes an integral part of

the territory occupied in 1967 and will be a part of the Palestinian state,Emphasizing the importance of the safety and well-being

of all civilians,Expressing grave concern at the escalation of violence and

the deterioration of the situation, in particular the resulting heavy civilian casualties since the refusal to extend the period of calm; and emphasizing that the Palestinian and Israeli civilian populations must be protected,

Expressing grave concern also at the deepening humanitarian crisis in Gaza,

Emphasizing the need to ensure sustained and regular fl ow of goods and people through the Gaza crossings,

Recognizing the vital role played by UNRWA in providing humanitarian and economic assistance within Gaza,

Recalling that a lasting solution to the Israeli-Palestinian confl ict can only be achieved by peaceful means,

Reaffi rming the right of all States in the region to live in peace within secure and internationally recognized borders,

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1. Stresses the urgency of and calls for an immediate, durable and fully respected ceasefi re, leading to the full withdrawal of Israeli forces from Gaza;

2. Calls for the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment;

3. Welcomes the initiatives aimed at creating and opening humanitarian corridors and other mechanisms for the sustained delivery of humanitarian aid;

4. Calls on Member States to support international eff orts to alleviate the humanitarian and economic situation in Gaza, including through urgently needed additional contributions to UNRWA and through the Ad Hoc Liaison Committee;

5. Condemns all violence and hostilities directed against civilians and all acts of terrorism;

6. Calls upon Member States to intensify eff orts to provide arrangements and guarantees in Gaza in order to sustain a durable ceasefi re and calm, including to prevent illicit traffi cking in arms and ammunition and to ensure the sustained reopening of the crossing points on the basis of the 2005 Agreement on Movement and Access between the Palestinian Authority and Israel; and in this regard, welcomes the Egyptian initiative, and other regional and international eff orts that are under way;

7. Encourages tangible steps towards intra-Palestinian reconciliation including in support of mediation eff orts of Egypt and the League of Arab States as expressed in the 26 November 2008 resolution, and consistent with Security Council resolution 1850 (2008) and other relevant resolutions;

8. Calls for renewed and urgent eff orts by the parties and the international community to achieve a comprehensive peace based on the vision of a region where two democratic States, Israel and Palestine, live side by side in peace with secure and recognized borders,

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as envisaged in Security Council resolution 1850 (2008), and recalls also the importance of the Arab Peace Initiative;

9. Welcomes the Quartet’s consideration, in consultation with the parties, of an international meeting in Moscow in 2009;

10. Decides to remain seized of the matter.

General Assembly – Human Rights Council ResolutionTh e Grave Violations of Human Rights in the Occupied Palestinian Territoryparticularly due to the recent Israeli military attack against the occupied Gaza Strip12 January 2009

Th e Human Rights Council,

Guided by the principles and objectives of the Charter of the United Nations and the Universal Declaration of Human Rights,

Acknowledging that peace and security, development and human rights are the pillars of the United Nations system,

Guided also by the right to self-determination of the Palestinian People and the inadmissibility of the acquisition of land by the use of force, as enshrined in the Charter of the United Nations,

Recalling General Assembly resolution 60/251 of 15 March 2006,

Affi rming the applicability of International Human Rights Law, to the Occupied Palestinian Territory, including East Jerusalem,

Affi rming also the applicability of the International Humanitarian Law namely the Fourth Geneva Convention relative to the protection of Civilian persons in Time of War, to the Occupied Palestinian Territory, including East Jerusalem,

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Emphasizing that International Human Rights Law and international humanitarian law are complementary and mutually reinforcing,

Recalling also the obligations of the High Contracting Parties to the Fourth Geneva Convention,

Reaffi rming that each High Contracting Party to the Fourth Geneva Convention relative to the Protection of Civilian persons in Time of War, is under obligation to respect and ensure respect the obligations arising from that convention,

Stressing that the right to life constitutes the most fundamental of all human rights,

Expresses serious concern at the lack of implementation by the occupying Power, Israel, of previously adopted resolutions and recommendations of the Human Rights Council related to the human rights situation in the Occupied Palestinian Territory, including East Jerusalem,Recognizing that the massive ongoing Israeli military operation in. the Occupied Palestinian territory, particularly in the occupied Gaza Strip, caused grave violations of the human rights of the Palestinian civilians therein, exacerbated the severe humanitarian crisis in the Occupied Palestinian Territory, and undermined international eff orts towards achieving a just and lasting peace in the region,

Condemning all forms of violence against civilians and deploring the loss of human lives in the context of the current situation,

Recognizing also that the Israeli siege imposed on the occupied Gaza Strip, including the closure of border crossings and the cutting of the supply of fuel, food and medicine, constitutes collective punishment of the Palestinian civilians and leads to disastrous humanitarian and environmental consequences,

1. Strongly condemns the ongoing Israeli military operation carried out in the Occupied Palestinian Territory, particularly in the occupied

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Gaza Strip, which have resulted in massive violations of human rights of the Palestinian people and systematic destruction of the Palestinian infrastructure;

2. Calls for the immediate cessation of Israeli military attacks throughout the Palestinian Occupied Territory, in particular in the Occupied Gaza Strip that have resulted, thus far, in the killing of more than 900 and the injury to more than 4000 Palestinians, including a large number of women and children, and the end to the launching of the crude rockets against Israeli civilians that resulted in the loss of 4 civilian lives and some injuries;

3. Demands the occupying Power, Israel, to immediately withdraw its military forces from the occupied Gaza Strip;

4. Calls upon the occupying Power, Israel, to end its occupation to all Palestinian lands occupied since 1967, and to respect its commitment within the peace process towards the establishment of the independent sovereign Palestinian state with east Jerusalem as its capital, living in peace and security with all its neighbors;

5. Demands the occupying Power, Israel, to stop the targeting of civilians and medical facilities and staff as well as the systematic destruction of cultural heritage of the Palestinian people in addition to the destruction of public and private properties as laid down in the Fourth Geneva Convention;

6. Demands further the occupying Power, Israel, to lift the siege, open all borders to allow access, free movement of humanitarian aid to the occupied Gaza Strip, including the immediate establishment of humanitarian corridors, in compliance with its obligations under International Humanitarian Law and to ensure free access of media to areas of confl ict through media corridors;

7. Calls upon the international community to support the current initiative aiming at putting an immediate end to the current military aggression in Gaza;

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8. Calls for urgent international action to put an immediate end to the grave violations committed by the occupying Power, Israel, in the occupied Palestinian Territory, particularly in the occupied Gaza Strip;

9. Calls for immediate international protection of the Palestinian people in the Occupied Palestinian Territory in compliance with the International Human Rights Law and International Humanitarian Law;

10. Urges all parties concerned to respect the rules of International Human Rights Law and International Humanitarian Law and to refrain from violence against the civilian population;

11. Requests the United Nations High Commissioner for Human Rights to report on the violations of human rights of the Palestinian people by the occupying Power, Israel, through (a) strengthening the fi eld presence of the offi ce in the Occupied. Palestinian Territory particularly in the occupied Gaza Strip and the deployment of the necessary personnel arid expertise to monitor and document Israeli violations of human rights of Palestinians and destruction of their properties; (b) to submit periodic reports to the Human Rights Council on the implementation of this resolution;

12. Requests all relevant Special Rapporteurs, in particular the Special Rapporteur on the Situation of Human Rights of the Palestinian People in the Palestinian Territories Occupied since 1967, Special Rapporteur on the Right to Mental and Physical Health, Special Representative of the Secretary General on Children in Armed Confl ict, Special Rapporteur on Violence against Women, Special Representative of the Secretary- General on internally displaced persons, Special Rapporteur on Adequate Housing, Special Rapporteur on the Right to Food, Special Rapporteur on Extrajudicial, Summary, Arbitrary Executions, Special Rapporteur to the Right to Education, Special Rapporteur on Extreme Poverty, to urgently seek and gather information on violation of the human rights of the Palestinian people and submit their reports to the next Human Right Council Session;

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13. Requests the occupying Power, Israel, to fully cooperate with the all the above mentioned Rapporteurs and to desist from any further hindrance of the work of the Special. Rapporteur on the Situation of the Human Rights of the Palestinian People in the Palestinian Territories Occupied in 1967;

14. Decides to dispatch an urgent independent international fact-fi nding mission, to be appointed by the President, to investigate all violations of international human rights law and International Humanitarian Law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission;

15. Requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide all administrative, technical and logistical assistance required to enable the above mentioned Special Procedures and the fact-fi nding mission to promptly and effi ciently fulfi ll their mandates;

16. Requests the Secretary-General of the United Nations to investigate the latest targeting of UNRWA facilities in Gaza, including schools, that resulted in the killing of tens of Palestinian Civilians including women and children; and to submit a report to the General Assembly in this regard;

17. Decides to follow-up on the implementation of the present resolution at the next session of the Human Rights Council.

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Recorded vote of 33 in favour, 1 against and 13 abstentions.

In favour: Angola, Argentina, Azerbaijan, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Madagascar, Malaysia, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia;

Against: Canada;

Abstentions: Bosnia and Herzegovina, Cameroon, France, Germany, Italy, Japan, Netherlands, Republic of Korea, Slovakia, Slovenia, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland.

Resolution adopted by the General Assembly

[without reference to a Main Committee (A/ES-10/L.21/Rev.1)]

ES-10/18. General Assembly resolution supporting the immediate ceasefi re according to Security Council resolution 1860 (2009)

36th plenary meeting - 16 January 2009

Th e General Assembly,

Reaffi rming the permanent responsibility of the United Nations with regard to the question of Palestine until it is solved in all its aspects, in accordance with international law,

Recalling the relevant rules and principles of international law, including international humanitarian and human rights law, particularly the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949,1 which is applicable to the Occupied Palestinian Territory, including East Jerusalem,

Expressing grave concern about the developments on the ground since the adoption of Security Council resolution 1860 (2009) on 8

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January 2009, especially following the intensifi ed military operations in the Gaza Strip, causing heavy casualties among civilians, including children and women, and the shelling of United Nations headquarters, hospitals, media premises and public infrastructure, and emphasizing that the Palestinian and Israeli civilian populations must be protected and that their suff ering must end,

Convinced that achieving a just, lasting and comprehensive settlement of the question of Palestine, the core of the Arab-Israeli confl ict, is imperative for the attainment of comprehensive, just and lasting peace and stability in the Middle East,

1. Demands full respect for Security Council resolution 1860 (2009), including its urgent call for an immediate, durable and fully respected ceasefi re, leading to the full withdrawal of Israeli forces from the Gaza Strip, and its call for the unimpeded provision and distribution throughout the Gaza Strip of humanitarian assistance, including food, fuel and medical treatment;

2. Calls upon all parties to exert all eff orts to ensure, in cooperation with the Security Council, full and urgent compliance with resolution 1860 (2009);

3. Expresses its support for international and regional initiatives and eff orts under way and for the mission undertaken by the Secretary-General of the United Nations;

4. Expresses its support for the extraordinary eff orts by the United Nations agencies, particularly the United Nations Relief and Works Agency for Palestine Refugees in the Near East, to provide emergency relief, medical and other humanitarian assistance to the Palestinian civilian population in the Gaza Strip;

5. Calls upon all Member States to urgently extend the necessary support to international and regional eff orts aimed at alleviating the critical humanitarian and economic situation in the Gaza Strip, and

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emphasizes in this regard the need to ensure the sustained opening of border crossings for the free movement of persons and goods into and out of the Gaza Strip, in accordance with the Agreement on Movement and Access of 15 November 2005;

6. Decides to adjourn the tenth emergency special session temporarily and to authorize the President of the General Assembly at its most recent session to resume its meeting upon request from Member States.

36th plenary meeting 16 January 2009

Resolutions of the Security Council on Iran

Report of the IAEA to the Security Council (February 22, 2008) Th is offi cial International Atomic Energy Agency (IAEA) report, submitted to the Security Council, records an open verdict on Iran’s nuclear program. Th e report states that Iran has answered many key questions on the development of a weapons program. However, Iran has refused to cooperate with the IAEA over US allegations that Tehran is attempting to enrich uranium and develop nuclear missile heads – describing the accusations as “baseless” and “fabricated.”

Resolution 1747 (March 24, 2007)

In this resolution, the Security Council builds on its previous decision to impose sanction on Tehran by banning arms exports from Iran and imposing a freeze on the fi nancial assets of 28 individuals and entities. After lengthy negotiations, the text takes into account some of the concerns expressed by South Africa, Indonesia and Qatar, such as the acknowledgment that all parties to the NPT, including Iran, have a right to peaceful uses of nuclear technology. Th e resolution also includes mechanisms for future negotiation with Iran and reference to a nuclear-free Middle East.

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Draft Resolution on Iran’s Nuclear Program (March 15, 2007)

Th e UN Security Council’s draft resolution on Iran calls again on Tehran to comply with the demands of the International Atomic Energy Agency (IAEA) “to build confi dence in the exclusively peaceful purpose of its nuclear program.” Further, it restricts the sale of arms to Iran and prohibits fi nancial assistance to Iran other than for humanitarian purposes. Th e director general of the IAEA is to submit a further report within 60 days on the extent of Tehran’s compliance with Resolution 1737. Th e draft resolution affi rms that all measures taken against Iran will be suspended contingent on Iran discontinuing its enrichment program.

Resolution 1737 (December 23, 2006)

Th e Security Council unanimously imposed sanctions against Iran. Th e text, calling for steps required by the IAEA, bans trade with Iran of all items, materials, equipment, goods and technology which could contribute to Tehran’s uranium enrichment program and contains a list of persons and entities, whose assets are subject to a freeze. It also established a new sanctions committee to monitor compliance of the resolution.

Resolution 1696 (June 31, 2006) In this resolution, the Security Council endorses the off er of diplomatic and economic incentives put forward by the P5 and Germany and demands that Iran suspend all uranium enrichment programs by August 31. Acting “under Article 40 of Chapter VII of the United Nations in order to make mandatory the suspension required by the IAEA,” the Council threatens Iran with sanctions in case of non-compliance, but avoids any implication that use of force may be warranted. Iran has rejected the resolution claiming that it has only made negotiations more diffi cult.80

80 http://www.globalpolicy.org/security/sanction/indxiran.htm

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BibliographyBooks

ALAM, Anwar (2009) Iran and Post-9/11 World Order: Refl ections on Iranian Nuclear Programme New Century Publications.

ALEXANDER, Yonah and HOENING, Milton (2007) Th e New Iranian Leadership: Ahmadinejad, Terrorism, Nuclear Ambition, and the Middle East Praeger.

BROWNLIE, Ian (1968) International Law and the Use of Force by States Oxford University Press.

BYERS, Michael (2005) War Law: understanding international law and armed confl ict New York: Grove Press.

DERVORT, Th omas R. V. (2007) International Law and Organization SAGE 1997.

EVRON, Yair (1994) Israel’s Nuclear Dilemma Ithaca: Cornell University Press.

EVRON, Yair (1998) Weapons of Mass Destruction in the Middle East Occasional Paper 39 Washington D.C.: Th e Henry Stimson Center.

FELDMAN, Shai (1991) Israeli Deterrence: Th e Test of the Gulf War in Joseph Alpher ed War in the Gulf: Implications for Israel (Tel Aviv: Jaff ee Center for Strategic Studies, Tel Aviv University).

FELDMAN, Shai (1982) Israeli Nuclear Deterrence New York: Columbia University Press.

GARDAM, Judith (2004) Necessity, Proportionality and the Use of Force by States Cambridge University Press.

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GILDER, George (2009) Th e Israel Test Richard Vigilante Books 1st edition.

HENSEL, Howard M. (2005) Th e Law of Armed Confl ict: constraints on the contemporary use of military force Ashgate.

HOVSEPIAN Nubar, KHALIDI, Rashid (2007) Th e war on Lebanon A reader.

HOWARD, Michael (1979) Restraints on War: studies in the limitation of armed confl ict Oxford University Press.

MACBRIDE, Sean (1983) Israel in Lebanon International Commission.

MALANCZUK, Peter (1997) Akehurst’s Modern Introduction to International Law 7th ed. Routledge.

MELMAN, Yossi and JAVEDANFAR, Meir (2008) Th e Nuclear Sphinx of Tehran Basic Books 2008.

MENASHRI, David (2001) Post Revolutionary Politics in Iran: Religion, Society and Power London: Frank Cass.

MORRIS, Benny (2009) One State, Two States: Resolving the Israel/Palestine Confl ict Yale University Press.

PARSI, Trita (2008) Treacherous Alliance: Th e Secret Dealings of Israel, Iran, and the United States Yale Univeristy Press.

PEDATZUR, Reuven (2006) Th e Iranian Th reat – Is It so Dire? Nativ 2 no. 109.

STEIN, Kenneth, SICK, Gary , LEVY, Daniel, and MENASHRI, David (2009) Sh’ma: A Journal of Jewish Responsibility -- Iran, Israel, and U.S. Foreign Policy (Iran, Israel and U.S. Foreign Policy) Kindle Edition.

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Articles:

BBC News (2009) Scale of Gaza destruction emerges (19 January 2009)

http://news.bbc.co.uk/1/hi/world/middle_east/7836869.stm

BBC News (2009) UN seeks $ 11m for Israeli raids (6 May 2009)

http://news.bbc.co.uk/2/hi/middle_east/8036054.stm.

BBC News (2006) Will Israel bomb Iran? Th is World (10 October 2006)

CORDESMAN, Anthony H. (2009) Th e Gaza War: A Strategic Analysis Center for Strategic & International Studies

http://csis.org/fi les/media/csis/pubs/090202_gaza_war.pdf

DOWLING, Kevin (2009) Strikes on Gaza continue ahead of imminent ceasefi re

http://www.timesonline.co.uk/tol/news/world/middle_east/article5535747.ece

Gur, Haviv R. (2009) Law professor: Hamas is a war crimes ‘case study’

http://www.jpost.com/servlet/Satellite?cid=1231866576202&pagename=JPArticle%2FShowFul.

IDF Spokesperson Report (2009) http://idfspokesperson.com/2009/01/03/rocket-statistics-3-jan-2009/

ITAR-TASS Th e Military Balance (2007) Iran celebrating day of nuke technology.

MAOGOTO, Jackson N. (2003) Rushing to Break the Law? Th e Bush Doctrine of the Pre-emptive Strikes and the UN Charter on the Use of the Force University of Western Sydney Law Review http://www.austlii.edu.au/au/journals/UWSLRev/2003/1.html.

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International Court of Justice (1996) Legality of the Th reat or Use of Nuclear Weapons Advisory Opinion (08/07/1996)

Legislation and Resolutions

Additional Protocol I to the Geneva Convention, 1977 Art. 48.

Charter of the United Nations, 1945 First statement of the Preamble.

Charter of the United Nations, 1945 Art. 2(4).

Charter of the United Nations, 1945 Art. 42.

Charter of the United Nations, 1945 Art. 51.

Resolution 1860 (2009) - Adopted by the Security Council at its 6063rd meeting on 8 January 2009.

United Nations Human Rights Council Resolution - Th e Grave Violations of Human Rights in the Occupied Palestinian Territory particularly due to the recent Israeli military attack against the occupied Gaza Strip - 12 January 2009.

United Nations Security Council Resolution - Resolution adopted by the General Assembly [without reference to a Main Committee (A/ES-10/L.21/Rev.1)] ES-10/18 - General Assembly resolution supporting the immediate ceasefi re according to Security Council resolution 1860 (2009) - 36th plenary meeting - 16 January 2009.

Case Law

Caroline case

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Websites:

United Nations Security Council - http://www.un.org/sc/members.asp

http://www.china.org.cn/english/international/242029.htm

http://www.thenation.com/blogs/dreyfuss/421476/israel_bombed_sudan

http://news.bbc.co.uk/2/hi/middle_east/8036054.stm

http://www.globalpolicy.org/security/sanction/indxiran.htm

http://www.timesonline.co.uk/tol/news/world/article757224.ece

http://www.nytimes.com/2008/06/20/washington/20iran.html?_r=1

http://www.iiss.org/publications/adelphi-papers/adelphi-papers-2007/iran-under-ahmadinejad/?locale=en

Presentations

AGHAZADEH, Reza (2003) Iran’s Nuclear Policy: Peaceful, Transparent, Independent presentation by the vice president of Iran, IAEA headquarters, Vienna, Austria.

FRANCE presentation (2003) Latest Developments in the Nuclear Programme in Iran, In Particular on the Plutonium Way Nuclear Suppliers Group 2003 plenary meeting, Pusan, Republic of Korea.

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Th esis Proposal

A Critical Appraisal of the Statute of the Child and Adolescent – ECA 1 (1990) on the Daily Life of Brazilian

Children

Abstract

Brazil was one of the countries that have ratifi ed the UN treaty on children’s rights (Convention on the Rights of the Child - CRC) and has undertaken legislative measures for the protection of those rights, approving the Law n.º 8.069, 13/07/1990, called the Statute of the Child and Adolescent (ECA).

Th e reason that I have chosen this title for my dissertation is due to the fact of the relevance and importance of this issue, particularly for developing countries, as Brazil.

I intend to assess the impact of these legislative measures on the daily life of children, especially those of humble origin who depend almost entirely on measures of the state for their survival.

Th at assessment will be made observing the context of Brazil in the world, and will be evaluated with other such measures adopted in other countries. It will be done a brief study of the impact of the economic situation in Brazil’s favoritism or not the eff ective implementation of measures to protect children and adolescents.

Emphasis will also be given to exam if the domestic legislation is fully compatible with the CRC and check if the CRC principles are eff ectively enforced. It will be done by checking the functionality of existing government structures, as well as the

1 Estatuto da Criança e do Adolescente (ECA).

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participation of non-governmental organizations and civil society, aiming to verify any fl aws in the system and suggest improvements to the optimization of the organizational structure already in place.

I believe that this thesis will be useful as a vector for the assessment of need, adequacy and eff ectiveness of legislative measures already adopted, as well as the administrative acts entailed for the protection of children and adolescents.

Opening Section

Brazil has adopted a legislation in respect to the Convention on the Rights of the Children, in the form of the Statute of the Child and Adolescent (ECA), a juridical instrument which transposes to the national plane the rights set forth the Convention referred and provides for the adoption of mechanisms and supplies guidelines so that public policies can be geared to promoting such rights.

Th e academic justifi cation for my thesis relies on the fact that ECA was approved with the aim to improve the children situation in Brazil and almost 20 years later, it still remains problematic.

Analyze of the impact of those legislation is a highly complex task because of the geographical scale of the country, the diverse characteristics of the diff erent regions and the federal political-administrative structure.

Th us, this research will not represent a mapping of all activities undertaken by the Brazilian state in its three government spheres (legislative, executive and judiciary), but a general study of the children legislation and administrative measures implemented. Th eir impacts will be also analyzed on the daily lives of children and adolescents with the information available at Brazilian Government, NGOs and international independent entities, so it can be allowed the visibility of the phenomenon and its level of confrontation.

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It is important to be highlighted that in the poorest families, very often single-parent families and headed by women, the number of children is greatest, and it is also where one fi nds the most precarious sanitation and feeding conditions. Moreover, when the characteristics of the family environment are hostile, some children or adolescents might end up in the streets, exposing themselves to new types of violence and risk. Defi ning the best strategy for dealing with these problems remains an important challenge. Th e gravity of the question led the Government of Brazil to introduce during the 1990s a series of direct income-transfer programmers, which supposed to benefi t thousands of families in the most vulnerable situation.

It will be checked whether the legislation is adequate to the needs of Brazil, whether the administrative measures adopted to implement the legislation were suffi cient, whether the structure is adequate to meet your goals, whether there are fl aws in the system, whether the government work together, concluding the end whether the recipients of the standards are being benefi ted or not to protecting the rights that the law provides.

Another point to be highlighted is the sexual exploitation of children and adolescents in Brazil. It will be analyzed the situation of girls, boys and adolescents victims of sexual violence in its various forms, emphasizing conceptual aspects of the commercial sexual exploitation of children and adolescents, the dimensions that explain the phenomenon and its forms of expression in the Brazilian reality.

In conclusion, it will be pointed whether the legislative measures adopted were suitable or not, their relevance and eff ectiveness, as well as major obstacles to the implementation and optimization of the system that involves the protection of children’s rights in Brazil.

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Critical Research Question and Contents List

Th e questions that I propose to accompany my main title are as follows, and each chapter must answer these questions:1) What is the content of the Statute of the Child and Adolescent?2) How can it be compared to other countries system? 3) Are the Brazilian legislative measures to protect the rights of children

and adolescents appropriate and suffi cient? 4) Is the Brazilian administrative structure appropriate and suffi cient? 5) Do the various government structures work together? 6) Do the government entities contribute in the supervision of the

system? 7) Are the resources applied enough? 8) Do the issues concerning children’s rights have priority? 9) Are the governmental actions properly supervised by society? 10) Are there fl aws in the system? 11) What could be done to improve the law and the system?

Research Methodology

I plain to do most of my research by reading and examining documents, books, articles, reports, related to the recent Brazilian legislation on human rights and the situation of the children in Brazil.

I intend to go to Brazil on Christmas break and try to visit some organizations related to children aid in Fortaleza, one of the city most aff ected by the children question, especially because the lungs and the high level of unemployment of the people that live there.

I will prepare a questionnaire and I will try to interview the directors of the institutions that I will visit, trying to identify the main reasons that aff ect the improvement of the protection of the children rights.

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Annotated Bibliography

Books

BUCK, Trevor – International Child Law – Routledge-Cavendish – 2005.

FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2008.

HODGKIN, Rachel – Eff ective Government Structures for Children – Calouste Gulbenkian Foundation – London – 1996.

UNICEF – Protecting the World’s Children – Cambridge University Press – 2007.

United Nations - Committee on Th e Rights of Th e Child (CRC) – Reports Submitted by Brazil – 17/12/2003.

United Nations – Committee on Th e Rights of Th e Child (CRC) – Consideration of Reports Submitted by Brazil – Concluding Observations – 03/11/2004.

A Exploração Sexual Comercial de Meninos e Meninas e Adolescentes na América Latina e Caribe – CECRIA – Relatório Final – 2ª edição – Brasil.

Sites

http://www2.ohchr.org/english/bodies/crc/index.htm - Committee on the Rights of the Children.

http://www.unicef-irc.org - UNICEF – Innocenti Research Center.

http://www.direct.gov.uk/en/Parents/FamilyIssuesAndTh eLaw/index.htm?cids=Google_PPC&cre=Parents - U.K.

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http://www.bbc.co.uk/worldservice/people/features/childrensrights/index.shtml - U.K.

http://hrw.org/doc/?t=children

http://www.planalto.gov.br/ccivil/LEIS/L8069.htm - Brazil.

http://www.senado.gov.br/web/senador/PatriciaSaboya/index.html - Brazil.

http://www.andi.org.br - Brazil.

http://www.cedecaceara.org.br/principal.htm - Brazil.

http://www.pirambudigital.com - Cooperativa Pirambu Digital – Brazil.

http://www.catavento.org.br/index.asp - Catavento Comunicação e Educação – Brazil.

http://w3.datasus.gov.br/datasus/datasus.php - Ministério da Saúde - Brazil.

Initial Evaluation

I consider that the most diffi cult task related to this dissertation is to collect all the information about it, especially if we consider that some of them only the Brazilian Government holds, and in some cases, some of them can be considered embarrassing.

I intend to overcome those diffi culties trying to fi nd somewhere else all the information that I will need, especially in non-governmental organizations.

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Conclusion

Th e target audiences for my research are all the people interested in studying the question related to children’s rights in Brazil, especially that one related to the impact of the recent Brazilian legislation on human rights on the daily life of Brazilian children.

It will also be useful for whom who want to know a wide and general scenario about the improvements and diffi culties that the Brazilian government face to implement measure related to solve the serious problem that still remain in protecting and implement children’s rights.

In conclusion, I will try to reach to an answer if the legislative measures adopted are following the article 4 of the Convention on the Rights of the Children (CRC)2 and have real impact, generating social changes or are just rhetorical.

2 Article 4 - States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

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A Critical Appraisal of the Child and Adolescent Statute – ECA 1 (1990)

and the Brazilian System and Policies Toward the Protection of Children’s Rights

1 Estatuto da Criança e do Adolescente (ECA).

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“Every child has the right to go to the beach, to have a good family, to be happy, to eat well, tenderness, to a school so they can be

something in life. Health is important, because without it we don´t survive.

The child has the right to tenderness from the family. If this does not happen, the children take to the street, use drugs (...)

there is also a lot of prejudice between men and women. It is necessary to have respect between persons.

Old people also need to be respected and they need to respect children too”

(Group of Children between 8 and 12 years old - Rede Amiga da Criança / São Luís / Brasil) 2

2 ANCED – Th e Report of Civil Society on the Situation of the Rights of the Child and the Adolescent in Brazil – 2004, p. 85 – http://www.crin.org/docs/resources/treaties/crc.37/Brazil_ngo_report.pdf.

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ABSTRACT

Th is dissertation refers to a critical appraisal of the Child and Adolescent Statute – ECA (1990) and the Brazilian policies toward the protection of children’s rights. Th e main aim is to show and examine what are the benefi ts that ECA and Brazilian social policies brought to improve the protection of children’s rights.

In order to reach that aim, it will be shown the importance of two documents: United Nations Convention on the Rights of the Child - CRC and 1988 Brazilian Constitution – that have given support to ECA. Th e theme is developed regarding the principles and values suggested by the CRC, in a attempting to investigate if they are being applied in Brazil or not. A key point to be analysed is the real situation of the children’s rights protection in Brazil, with focus on the measures adopted after the introduction of ECA in Brazilian legal system.

Th e budget allocation is an issue that is highlighted and also analysed in all government’s levels: federal, state and municipal. It will be studied the most relevant innovations that ECA has brought and its real impact to improve the protection of the Brazilian children. Emphasis will also be given to examine if the domestic legislation has been fully compatible with the CRC and to check if the CRC’s principles have been eff ectively enforced. It will be done by checking the functionality of existing government structures, as well as the participation of non-governmental organizations and civil society, aiming to verify any fl aws in the system and suggest improvements to the optimization of the organizational structure already in place.

It will be checked as well the extent to which commitments made by Brazil to the Convention have led to the adoption of concrete measures to improve the rights of children. Another key point of this dissertation is to show the general impact of new legislation on the issue it is intended to address. In conclusion, it will be analysed if the rights declared in the 1988 Brazilian federal

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Constitution and ECA are been fully applied in Brazil or they are merely aspirations or declaratory statements that use the rhetoric of rights, without providing practical relief and remedies.

Key words: human rights, children’s rights, Brazilian social policies toward children.

List of Abbreviation

ANCED – Association of Defense Centers for the Rights of the Child and the Adolescent

CEDECA/CE – Centre for the Defence of Child and Adolescent/Ceará

CRC – Convention on the Rights of the Child

ECA – Child and Adolescent Statute

GSF – Federal Social Expenditure

INESC – Institute of Socio-Economic Studies

LMU – London Metropolitan University

NGO – Non-governmental Organization

NHRIs – National Human Rights Institutions

OCA – Child and Adolescent Budget

PETI – Program for the Eradication of Child Labor

PPA – Multiannual Plan

SEDH – Special Secretary of Human Rights

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SENTINELAS – Program for the Victims of Sexual Abuse

UNCRC – United Nations Convention on the Rights of the Child

UNICEF – United Nation Children’s Fund

Acknowledgements

First I am indebted to Anjana Bahl, who, irrespective of her other academic engagements agreed to supervise my thesis. I appreciate the constructive comments she made on my thesis and thank her for her patience with me. Without her help this paper would not have come about.

My thanks also go to all the teachers of London Metropolitan University (LMU), especially Cliff Snaith, Dita Gill, Douwe Korff , Philip Leach and Jeff Haynes. I also would like to thank Ms. Liz Davies, who gave me many materials related to child matters; she has been a great help. My thanks also to all the staff of LMU, especially to Tania Davella, for her kindness and help.

I also want to thank all my classmates in the LLM class, especially Jorge O’Ryan and Andrea Luz Medina for their support and encouragement throughout the program. Th ey have been a very good friends and I really want to thank them for many good moments that we have spent together and for their true friendship.

Finally, I would like to thank my wife, Soraya Aguiar, for her support and encouragement throughout the entire period of 2008/2009, and my family, especially my parents, sisters and cousins. I would like also to thank some especial friends: Augusto Cláudio Ferreire Guterres Soares, Rejane Zenir Jungbluth Teixeira, Felipe de Araújo Lima, Adriana Villas Boas de Araújo Lima, Silvia Peroba, Luciana Peroba, Murtaja Hamada, Lucia Correa, Maria das Graças Sá Gadelha, Ana Márcia Diógenes Paiva Lima, Izabel Vinchon Nogueira de Andrade, Francisco Soares de Lima, Paulo Marcelo Ribeiro,

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Sally Hinds, Andy Hinds, Andrew Wic and particularly those who take part in the Latin American Issues Forum – Jorge O’Ryan, Andréa Luz Medina, Gabriela Goulart, Marcelo Alves Dias de Souza, Maarten van Munster, Victor De Martino, Razim Rzaev, David Trueman, Amanda Cumberland and Vinod Kumar Kusuma. With their help and suggestions, I could fi nd more inspiration and material to my theses and studies at the London Metropolitan University.

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Contents

1) Introductiona) Th e Children’s Rights Protection: the case of Brazilb) Brief Historical Evolution of the Human Rights: the

adoption of the UN Charter was an end or just a beginning in the human rights protection?

c) Th e United Nations Convention on the Rights of the Child (CRC): the most widely ratifi ed treaty in history is anything more than rhetoric?

2) Brazilian Systema) Brazilian Reality: support for the poorest, the fi rst stepb) Children in ‘Irregular Situations’: an apartheid system?c) Th e Th eory of ‘Full Protection’: the base for a re-assessment

of the purpose of child legislationd) Ratifi cation of CRC and approval of ECA: a beginning of a

new Era in children’s protectione) Th e Relativism of Rights in Brazil: is CRC a First World

imposition?f ) Universality, not Uniformity: a simple question that makes a

big diff erence

3) Th e Child and Adolescent Statute (ECA) and CRC Reports

a) 1988 Brazilian Federal Constitution: the fi rst step in a long way

b) Law 8.069/90 (ECA): is it appropriate to Brazilian reality?c) Municipal Councils: innovation and decentralization, is this

the right way?d) Brazilian Report on Human Rights (CRC): what have been

done?e) United Nations Report About Brazil (CRC): what is

necessary to do?

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f ) A comparison Between Brazilian and British CRC Reports: is there any diff erence?

g) A comparison Between Brazilian and Mexican CRC Reports: what is the diff erence?

4) Brazilian Problems and Policies Toward the Protection of Children’s Rights

a) Children Issues: why is it so diffi cult to move from good intentions to eff ectiveness?

b) Social Policies: what has been forgotten by social policies? c) Popular Participation, Transparency and Coordination: what

is the ideal approach?d) Eff ective Budget Allocation: is it all a matter of money?e) Eff ective Government Structures for Children: existence and

work is not enough, it has to be eff ectivef ) NGOs and NHRIs: are they really useful?

5) Conclusiona) Generations of Rights: can the rights of the child be imple-

mented without taking into account their indivisibility?b) A Critical Appraisal: despite the Brazilian ratifi cation of

CRC, is Brazil doing its best? c) A Solution: is there a fi nal solution to the child question?

Appendix – Statute of the Child and adolescent – Law n.º 8.069/1990 (main articles).

Bibliography

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1) Introduction“I have come to the

conclusion that politics are too serious a matter to be left to the politicians.”

(Charles De Gaulle)

a) Th e Children’s Rights Protection: the case of Brazil

Brazil was one of the fi rst countries that ratifi ed the United Nations Convention on the Rights of the Child (CRC) and adopted legislation to apply the CRC principles and values. Despite this pioneering status, what is possible to see in real life of Brazilian children, especially the ones that come from poor families, is that they still remain in a delicate situation exposed to harm and all kind of violence.

In this context, this dissertation aim to analyse the real situation of the children’s rights protection in Brazil, with focus on the measures adopted after the introduction of ECA in Brazilian legal system. To achieve this goal, it will be showed in the fi rst chapter a brief historical evolution of the Human Rights until the adoption of the CRC. In the following chapters, it will be listed the main features of Brazilian system toward children’s rights protection and analysed the main points of ECA. It will be checked as well the extent to which commitments made by Brazil to the Convention have led to the adoption of concrete measures to improve the rights of children. In addition, It will be checked the extent to which those measures have had a real impact or not on the lives of children and what remain to be done.

Th at concern about the real implementation of CRC principles and values is justifi ed because some scholars, as James R. Himes (1993)3, argue that the CRC adoption has an additional legal

3 HIMES, James R. – Th e United Nation Convention on the Right of the Child: Th ree Essays on the Challenge of Implementation – UNICEF – Italy – 1993, p. 8.

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problem due to the vagueness of the nature of the obligations of the States Parties, especially those related to economic and social rights that cannot be achieved by simple changes in legal system.

b) Brief Historical Evolution of the Human Rights: the adoption of the United Nations Charter was an end or just a beginning in the human rights protection?

Th e evolution of the concept of human rights is closely linked to the recognition of the individual as a subject of rights and the consequent decline of the absolutist state. Th e idea of the existence of human rights began to gain strength from the events in the eighteenth century. Despite that, as Rhona Smith (2005)4 suggests, there are divergent views related to the origins of human rights, one can say that the existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured in various predominantly European schools of thought since that time.

Even considering that it is not possible to identify an specifi c date in history about the origin of human rights, it is fair to assure that among the most important documents related to human rights before the Second World War, three stand out: Th e English Declaration of 1689 (Bill of Rights), which besides establishing the foundations of parliamentary monarchy, established the guarantee of press freedom and individual liberty, protection of private property and autonomy of action of the judiciary; the American Declaration of Independence, drafted by Th omas Jeff erson, and the French Declaration of the Rights of Man and of the Citizen of 1789, which was a direct result of philosophical and legal movements by some European philosophers, and whose infl uence on the independence movements of Latin American countries cannot be ignored. Th e principles established by the three aforementioned statements were welcomed in the main liberal constitutions. However, the protection of rights was of a domestic nature.

4 SMITH, Rhona K. M. – International Human Rights – Oxford University Press – 2nd edition – Oxford – 2005, p. 5.

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Th e Second World War, with a series of atrocities, showed that human rights should be protected by international law. In structuring the international order, the institution of the United Nations through the Charter of San Francisco, signed on June 26th 1945, came to give to the human rights a constitutional stature in the planning of the rights of the people. Th e atrocities perpetrated before and during the Second World War, as Jane Fortin (2003)5 says, led to a fi rm resolve to strengthen international unity. Indeed, the international community has been done since then a huge eff ort to identify the human rights importance to mankind, to include them in international treaties and to persuade governments to recognize them on a world-wide basis has always been some serious disregard for humanitarian values. A determination to prevent such appalling events occurring again was accompanied by the promulgation of a large number of human rights instruments setting out those rights deemed essential to civilised life. Attempts to strengthen international unity included establishing the United Nations, whose charter came into force in 1945.

Since United Nations foundation, it was not safe to assume that there were, in Public International Law, conscious and organized concern on the theme of human rights. As Trevor Buck (2005)6 maintains, the idea of equal deserve of respect and dignity and the condition that every human being could be regarded as a right holder, capable of asserting rights against other individuals and the state, was gradually adopted since the Charter of San Francisco.

Th e adoption of the Charter (of San Francisco) guaranteed the legal assumptions that led to its General Assembly, meeting in Paris, to adopt the Universal Declaration of Human Rights in December 1948, which has been the most important milestone in the study of human rights. Th e Declaration is a document that expresses so widely the substantive rules relating to the subject, and in which the

5 FORTIN, Jane – Children’s Rights and the Developing Law – LexisNexis – 2nd edition – 2003, p. 33 and 34.

6 BUCK, Trevor – International Child Law – Routledge-Cavendish – 2005, p. 11.

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later conventions, as CRC, would fi nd their principles and inspiration. However, those rules are not exactly a legal obligation for each state, since the text was adopted in the form of resolution of the Assembly, but as Michael Freeman (2002)7 assures: “Th e declaration is also the source of an international movement, and of numerous national movements, of political activists who struggle against oppression, injustice and exploitation (…).”

Accepting the international apparatus protection, as well as international obligations arising therefore, the states shall accept the international monitoring, as regards the way in which fundamental rights are respected in their territory. In this context, the holistic approach of human rights has gained more strength and visibility, pointing out to an indivisibility of them. However, despite the fact that the United Nations Charter was the milestone in the protection of human rights, it was just the fi rst step.

c) Th e United Nations Convention on the Rights of the Child (CRC): the most widely ratifi ed treaty in history is anything more than rhetoric?

Doubtless children are the most politically powerless people of all nations. Consequently, there has been a growing international consensus that societies have an obligation to promote and protect children’s rights. To achieve this protection, children deserve special priority, both in development programmes and in human rights works.

In that context, the United Nations Convention on the Rights of the Child was adopted in 1989. It was the only international human rights Convention that came into force just one year after adoption (02 September 1990), as James R. Himes (1993)8

7 FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002, p. 36. 8 HIMES, James R. – Op. cit., p. 7.

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maintains no other international human rights covenant has been ratifi ed so quickly by so many States. Many countries are now well advanced in the important task of examining the implication of the Convention in terms of their own legal norms and, sometimes, actual practices. Enthusiastic comments on the Convention have come not only from child rights activists but also from world political leaders. Th e Convention has been described as nothing short of the cornerstone of a new moral ethos for children, possibly a milestone in the history of mankind, and an instrument stressing that respect for and protection of children’s rights is the starting point for the full development of the individual’s potential in a atmosphere of freedom, dignity and justice.

It is easy to fi nd superlative related to the achievements of CRC, as Philip Alston and John Tobin (2005)9 put forward the view that it is the most widely ratifi ed treaty in history, the fi rst virtually universal human rights convention, it is the most far-reaching, the most forward-looking, the most comprehensive, it is the embodiment of a whole new vision for children, a defi nitive turning point in the struggle to achieve justice for children, and a document with an unprecedented potential to bring about dramatic change.

One of its main goals, as article 4 of CRC10 assures, is that the States Parties undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the Convention. Despite this, legislative reform, although relevant, was considered only limited dimension of CRC implementation. Institutional reform and law enforcement through eff ective budget allocation, adequate social policies and wider

9 ALSTON, Philip and TOBIN, John – Laying the Foundations For Children’s Rights – UNICEF – Italy – 2005, p. 2.

10 Art. 4 of the United Nations Convention on the Rights of the Child - 1989. States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

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partnerships were considered fundamental aspect of a law reform initiative, as UNICEF (2004)11 concludes. Th e article 4 of the CRC, as said before, requires States Parties to take “all appropriate legislative, administrative and other measures” for the realization of the rights of the child. Ensuring that all domestic legislation is fully compatible with the CRC and that the CRC’s principles and provisions are eff ectively enforced is a fundamental step. However, much more is required beyond legislative measures, including the setting-up of institutions and coordinating mechanisms devoted to the protection of children’s rights, awareness raising and information campaigns, as well as training initiatives on the rights of the child and other activities, in government, parliament and the judiciary, at all levels. Th e ideal approach is the involvement of all sectors of society in making the rights of children a reality - including children themselves.

Another relevant point is the universality and indivisibility of human rights refl ected in the CRC pose special challenges for law reform, especially in developing countries. It became clear since the beginning of CRC implementation that it was not simply to protect children from physical violation, but it was also to give priority to social policies and measures on matter such as health and education, that soon became an indivisible dimension of children’s rights that must be incorporated into domestic law by the countries.

It is important to remember that before the CRC, children were the most invisible segment of the society. However, after its adoption, the issues related to children gained importance and it is not a peripherical issue anymore, but the center of attention in the countries that ratifi ed the Convention. Undoubtedly, the CRC has profound importance throughout the world. It has given great visibility to issues concerning children, and has served as a reference for the development of new laws and public policies. It is also possible to assure

11 UNICEF – Innocenti Research Centre – Summary Report of the Study on the Impact of the Implementation of the Convention on the Rights of the Child – Italy – 2004, p. 1.

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that the CRC has been enormously infl uential – indeed, to many it is regarded as the touchstone for children’s rights throughout the world. It constitutes, as Jane Fortin (2003)12 maintains, “the most comprehensive list of human rights create for a specifi c group. International bodies refer to it with approval on the basis that it can be utilised to promote a change in the way children, as individual with rights, are viewed and also to encourage their active and responsible participation within the family and society.”

However, despite all these good references of CRC, is it anything more than rhetoric in Brazil? Th is is the key point of this dissertation and this issue will be explored in the following chapters.

12 FORTIN, Jane – Op. cit., p. 49.

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2) Brazilian SystemPolitics is the art of looking

for trouble, fi nding it whether it exist or not, diagnosing it incorrectly, and applying the wrong

remedy.”(Ernest Benn)

a) Th e Brazilian Reality: support for the poorest, the fi rst step

Before starting the appraisal of ECA itself and social policies toward the protection of children’s rights, it is important to understand the general children framework in Brazil before the adoption of ECA in 1990. It is relevant to highlight that in the poorest families, very often single-parent families and headed by women, the number of children is greatest, and it is also where one fi nds the most precarious sanitation and feeding conditions. Moreover, when the characteristics of the family environment are hostile, some children or adolescents might end up in the streets, exposing themselves to new types of violence and risk.

Defi ning the best strategy for dealing with these problems remains an important challenge. Th e gravity of the question led the Government of Brazil to introduce during the 1990s a series of direct income-transfer programmers, which supposed to benefi t thousands of families in the most vulnerable situation. Indeed, this kind of social support was a necessary fi rst step to all kind of social politics, especially to children’s rights protection.

b) Children in ‘Irregular Situations’: an apartheid system?

Brazilian legislation toward children before the adoption of ECA was based on children in ‘irregular situations’ and the legal instrument used was ‘Th e Code of Minor’. Children who were protect by basic services, such as health and education, were being

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separated from those who were not. Th is resulted in two classifi cations: ‘children and adolescent’ (those whose basic needs were being satisfi ed) and ‘minors’ (those whose basic needs were not being met). Th is latter category of children comprised those who were viewed as being in ‘irregular situations’.

Th at system had some characteristics such as: punishable off ences were resolved on an arbitrary basis; poverty was criminalized by infl icting internment on the ground of absence or scarcity of material resources; the child was considered, at best, as someone to be protected and decision-making power was centralized in the juvenile judge. Actually, the former Brazilian juvenile laws focused largely on juvenile justice and children in need of care and protection. ECA came following an international pattern to adopt CRC principles, as UNICEF (2007)13 assures: “Many of these older codes have now been replaced by new ones that incorporate some of the other areas covered by the CRC. Th e scope of these new codes varies, however, making it diffi cult to claim that there is a consensus on what a children’s code is or should be.” In that context, it is extremely diffi cult to ignore that the old way was almost an apartheid system.

c) Th e Th eory of ‘Full Protection’: the base for a re-assessment of the purpose of child legislation

Th at former legislation was unfair and no longer met the aspirations of the society. It was necessary a new theory, so called: ‘full protection’. Th e embodiment of this theory can be found in a set of international legal instruments that represent a great qualitative advance in the social consideration of the child.

Th e theory directly derived from the 1959 Declaration of Rights of the Child, is contained in four fundamental texts:

. the United Nations Convention on the Rights of the Child (CRC);

13 UNICEF – Innocenti Research Centre – Law Reform and Implementation of the Convention on the Rights of the Child – Italy – 2007, p. 2.

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. the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985;

. the United Nation Rules for the Protection of Juveniles Deprived of their Liberty 1990;

. the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990.

Th ere is no doubt that the CRC is the most important of them, as it provides the general framework for interpreting the other rules. Th e Convention represented a fundamental change because of its totally new perception of the condition of the child, and the theory of ‘full protection’ demands a re-assessment of the purpose of child legislation.

d) Ratifi cation of CRC and Approval of ECA: a beginning of a new Era in children’s protection.

Th e adoption of the Convention on the Rights of the Child represented the culmination of a long process to secure international recognition of a comprehensive and path-breaking statement of children’s rights. However, for Brazil, it marked the beginning of a new stage during which due attention has been given to the challenge of translating the new international standards into the domestic law. CRC has brought about a qualitative transformation of the status of children as the holders of rights. Brazil is one of the countries that has ratifi ed the UN treaty on children’s rights (CRC) and has undertaken legislative measures for the protection of those rights, approving the Law n.º 8.069, 13/07/1990, called the Statute of the Child and Adolescent (ECA).

Brazil has adopted that legislation in respect to the Convention on the Rights of the Children, in the form of the Child and Adolescent Statute (ECA), approved in both Houses of Brazilian Parliament on 13 July 1990 and became operative on 14 October 1990.

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It is a juridical instrument, which transposes to the national plane the rights set forth the Convention referred and provides for the adoption of mechanisms and supplies guidelines so that public policies can be geared to promoting such rights.

During this process of constitutional reform, as UNICEF (2007)14 maintains, the Brazilian movement fi ghting for children’s rights took advantage of the possibility of introducing a popular constitutional amendment. All these eff orts eventually resulted in Article 227 of the Brazilian Federal Constitution, eff ectively a summary of the entire Convention, which at the time was still pending approval. With this constitutional base established, a children’s bill was drafted, which was then debated at great length by all relevant social movements and fi nally approved by Parliament on 13 July 1990.

Brazil adopts the civil law jurisdiction and in that system there is the same importance of cooperation between the legislative and executive branches of government in initiating law reform. Th e legislative takes a special role in sustaining social policies and fi nancial allocation to support them. Th e Executive plays an important role in initiating legislative reform. Th e Judiciary has a limited role in terms of the exercise of judicial discretion and its approach to interpretation. Civil law system emphasizes the importance of legal rules, and interpretation by the Judiciary tends to be legalistic rather than focused on interpreting the law in the social context.

e) Th e Relativism of Rights in Brazil: is CRC a First World imposition?

Many countries have suff ered to overcome some obstacles to reach a broader acceptance of human rights internationally recognized. Th ere is an assertion that this humanistic dialectic is a concept originally born in the West (developed countries)

14 UNICEF – Protecting the World’s Children: impact of the Convention on the Rights of the Child in diverse legal systems – 2007, p. 133.

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and, consequently, would not refl ect the reality of Eastern or developing countries. In other words, one can claims that even related to the protection of children’s rights, there would not exist universal principles and every principle and value would must be checked with the local culture. Th is position characterizes the relativists in opposition of the universalists that claim that there are some universal principles and values that are not submitted to local appreciation.

Some scholars, as Steiner and Alston (2000)15 puts forward the view that to the relativists, the universalists pretension to universality may suggest primarily the arrogance or ‘cultural imperialism’ of the West, given the West’s traditional urge – expressed for example in political ideology (liberalism) and in religious faith (Christianity) – to view its own forms and beliefs as universal, and to attempt to universalise them. Undoubtedly, this vision of the human rights has its cradle in the Western world. Th e primary source of the ideas of individual freedom, democracy, human rights and other privileges of the genre is the West or, more precisely, Europe. Th is cannot be inferred, however, that other nations should not adopt and strengthen them only for this reason. Th is type of rivalry and prejudice, unfortunately, has often been the major factor that inhibits the adoption of a cosmopolitan system for protecting human being who earned universal resonance.

Diff erent from other countries, especially east countries, the implementation of CRC principles into domestic law in Brazil has been very well received by its population and a child rights agenda is not perceived as a foreign imposition.

f ) Universality, not Uniformity: a simple question that makes a big diff erence

15 STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford University Press – 2nd edition – 2000, p. 367.

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Perhaps, Brazil has incorporated easily those CRC principles because it has been understood it as a step forward on the protection of Brazilian children, and not cultural uniformity imposition. Accepting the universality does not require removing all cultural, philosophical and religious variations of a particular social group, nor presenting a magic formula for resolving all problems. More so, submitting a minimum set of values that refl ect what is human in every individual, from which no human being can be excluded.

In that context, human rights derive from the simple fact of being human and not depend on any particular benefi t from any government or legal code. Th e diff erences of culture should serve to enrich the similarities and not deepen the diff erences, because for most paradoxical that is, only the protection of human rights can ensure diversity. Th at Brazilian universality approach of children’s rights is in harmony with the promotion and protection of Human Rights principles highlighted in many international documents, as Paris Principles16, adopted in December 20th 1993.

16 Affi rming that priority should be accorded to the development of appropriate arrangements at the national level to ensure the eff ective implementation of international human rights standards, (…)

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3) Th e Child and Adolescent Statute (ECA) and CRC Reports

“Th e greatest discovery of my generation is thata human being can alter his life by altering his attitude of mind”

(William James)

a) 1988 Brazilian Federal Constitution: the fi rst step in a long way

Th e 1988 Brazilian federal Constitution was resulted from the process of re-democratization of the country, led to a full national debate, with the active participation of civil society. As a consequence, social questions and the rights of children and adolescents were given an unprecedented treatment in the present Constitution, compared with previous charters.

Th e 1988 Constitution and the Child and Adolescent Statute expressed a comprehensive view of the human rights of children and adolescents, including the indivisibility of these rights, their reciprocal implementation and the equal importance of all the rights, whether civil, political, social, economic or cultural. Th e article 227 of the Constitution17 guarantees children and adolescents political, civil, social, economic and cultural rights, according to the following principles: (a) full protection; (b) absolute priority; (c) responsibility shared between the family, society and the State; and (d) children and adolescents as rights-bearers.

b) Law n.º 8.069/90 (ECA): is it appropriate to Brazilian reality?

Encouraged by the UN Committee on the Rights of the Child, as Philip Alston and John Tobin (2005)18 argue, and

17 Article 227 of the 1988 Brazilian Constitution lays down that: “It is the duty of the family, society, and the State to guarantee children and adolescents, with absolute priority, the right to life, health, food, education, leisure, professional training, culture, dignity, respect, liberty and family and community life, besides maintaining them safe from any form of negligence, discrimination, exploitation, violence, cruelty and oppression.”

18 In the context of a State whose authorities or traditions attach great importance to the constitutional

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reinforced by the civil society pressure, Brazil has adopted a comprehensive law (code) or so-called ECA. It is important to bear in mind, as UNICEF (2007)19 assures, that ‘Code’ refers to a single piece of legislation intended to cover an entire subject or area of law. In principle, then, a children’s code should cover all legal matters concerning children, or at least all those covered by the CRC. Among these are the following: civil rights, such as the right to nationality and freedom of thought and association; social rights, such as the right to education, health care and an adequate standard of living and working conditions; the relationship between children and their families; alternative family care; protection against abuse, neglect and exploitation; juvenile justice; standing and participation in legal and administrative proceedings; and general principles such as the ‘best interests’ principle and the right to development.

ECA, Law No. 8.069, was passed in 1990, revoking the previous Code of Minors and reconciling the sub-constitutional norms to the new set of constitutional principles. Th e ECA is designed to regulate the juridical situation of persons up to the age of 18 years, defi ning as a child a person up to the age of 12 years and someone aged between 12 and 18 years as an adolescent. 20

Th e fi rst step for the full implementation of CRC principles was done. It is important to keep in mind that implementation, as Trevor Buck (2005)21 suggests, is the process

expression or recognition of social policy and related objectives, there is a strong case to be made that serious consideration should be given to such a measure following ratifi cation of the Convention. Th is approach explains why the Committee on the Rights of the Child has on occasion welcomed instances in which States have incorporated sections on children’s rights into their national constitutions and has sometimes encouraged States without such provisions, to consider doing so. ALSTON, Philip and TOBIN, John – Laying the Foundations For Children’s Rights – UNICEF – Italy – 2005, p. 21.

19 UNICEF – Innocenti Research Centre – Op. cit., p. 2.

20 Art. 2º Considera-se criança, para os efeitos desta Lei, a pessoa até doze anos de idade incompletos, e adolescente aquela entre doze e dezoito anos de idade. (Art. 2. For the purposes of this Law, the child is considered as the person who has not yet completed twelve years of age and the adolescent as that between twelve and eighteen years of age).

21 BUCK, Trevor – Op. cit., p. 54.

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whereby States parties take action to ensure the realization of all rights in the Convention for all children in their jurisdiction. Actually, the article 4 of CRC requires States parties to take “all appropriate legislative, administrative and other measures” for implementation of the rights contained therein, and ECA is the legislative measure to implement CRC principles.

It is important to be said that the ECA statute guarantees children and adolescents under Brazilian jurisdiction all the rights provided for in the CRC and emphasizes the democratic principle of the participation and control of civil society in formulating and implementing policies and initiatives designed to promote and defend rights. Th is new paradigm promotes the doctrine of full protection to the child and adolescent and recognizes a logic and a set of principles of its own directed at ensuring the prevalence and primacy of the interests of the child and adolescent. In their capacity as rights-bearers in a special stage of development, the right to special protection is guaranteed to children and adolescents. From the human rights standpoint, the 1988 Constitution and the Child and Adolescent Statute expressed a comprehensive view of the human rights of children and adolescents, including the indivisibility of these rights, their reciprocal implementation and the equal importance of all the rights, whether civil, political, social, economic or cultural.22

ECA has replaced the old National Policy of Child Welfare and has instituted a new Policy of Assistance for the Rights of the Child and Adolescent, which is based on two basic guidelines coming from the 1988 federal Constitution (art. 227, paragraph 7): political-administrative decentralization and popular participation.

Among the innovations that ECA has introduced in the Brazilian legal system, it is important to highlight that it replaced the generic concept of “minor” to “child and adolescent”, conferred absolutely priority to guaranteeing children and adolescents’

22 Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties (2003) – Brazil, p. 10.

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rights and applied to all people below the age of 18, unlike the former Code of Minors, which only applied to minor in an irregular situation.

Th e Statute of the Child and Adolescent is divided in two volumes. Volume 1 defi nes basic rights - the right to life and health (arts. 7 to 14); the right to liberty, respect and dignity (arts. 15 to 18); the right to family and community life (arts. 19 to 24); the right to education, culture, sports and leisure (arts. 53 to 59); the right to professional training and employment protection (arts. 60 to 69) - and the obligation, defi ned as being everybody’s, to prevent the occurrence of any threat or violation of children’s and adolescents’ rights (arts. 70 to 85). Any individual or corporate entity that fails to comply with the norms of prevention shall be held responsible (art. 73).

Volume 2 establishes the guidelines for the Policy of Assistance for Children’s and Adolescents’ Rights (arts. 86 to 89); makes provisions concerning childcare organizations and their inspection and the forms of assistance (arts. 90 to 97); and specifi es the protection measures for children and adolescents in a risk situation (arts. 98 to 102). It also defi nes the practice of a juvenile off ence (arts. 103 to 105), the rights of the adolescent off ender (arts. 106 to 109), the legal guarantees (arts. 110 to 111), socio-educational measures (arts. 112 to 125), the attributions and functioning of the Children’s Court (arts. 145 to 151). Finally, it makes provisions concerning crimes practiced against children and adolescents, by act or omission (arts. 225 to 244), as well as administrative infractions committed in detriment to the rights of the child and adolescent (arts. 245 to 258).

Th at new structure gave to the federal Government the responsibility to coordinate and establish the general norms of the new policy, while the states and municipalities coordinate and execute the programmes and activities. Th e statute lays down that this policy will be implemented through an interlinked set of government and non-governmental initiatives and actions. Of the many innovations in the ECA, the following are the most characteristic:

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. Service delivery was devolved to municipal level (art. 8);

. Coercive confi nement in case of social distress was removed (art. 106);

. Th e equal participation of the government and civil society at the three political and administrative levels (federal, state and municipal) was guaranteed by the establishment of Councils on the Child and the Adolescent (art. 88, II);. Th ere is a diff erentiation of the roles of Judiciary, with municipal Guardianship Councils assuming responsibility for dealing with cases that do not represent punishable off ences and do not involve signifi cant changes in the legal status of children or adolescents (arts. 136 and 137).

Perhaps, one of the most important features related to ECA is that it has committed the State, both on the domestic and international plane, to respect, defend and promote children’s rights.

c) Municipal Councils: innovation and decentralization, is this the right way?

National and local levels of governments have played a very important role in the implementation of CRC principles, as Philip Alston and John Tobin (2005)23 argues that accountability is to be sought principally and primarily within the domestic, rather than the international, setting. No matter how well the UN Committee on the Rights of the Child might function, no matter how eff ective and active international agencies such as UNICEF or the World Bank might be and no matter how active and dedicated civil society might be, the real litmus test of accountability will lie in the quality of the domestic institutional arrangements for ensuring that the national and local levels of government, as well as other key actors, are accountable for any failures which might have been avoided to ensure respect for the rights of children.

In that context, article 4 of the CRC obliges States parties to “undertake all appropriate legislative, administrative

23 ALSTON, Philip and TOBIN, John – Op. cit., p. 39.

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and other measures for the implementation of the rights recognized in the present Convention”. Independent national human rights institutions (NHRIs) are an important mechanism to promote and ensure the implementation of the Convention, and the Committee on the Rights of the Child24 considers the establishment of such bodies to fall within the commitment made by States parties upon ratifi cation to ensure the implementation of the Convention and advance the universal realization of children’s rights. In this regard, the Committee has welcomed the establishment of NHRIs and children’s ombudspersons/children’s commissioners and similar independent bodies for the promotion and monitoring of the implementation of the Convention in a number of States parties.

Th e Committee issues this general comment in order to encourage States parties to establish an independent institution for the promotion and monitoring of implementation of the Convention and to support them in this regard by elaborating the essential elements of such institutions and the activities, which should be carried out by them.25 It is the view of the Committee that every State needs an independent human rights institution with responsibility for promoting and protecting children’s rights. Th e Committee’s principal concern is that the institution, whatever its form, should be able, independently and eff ectively, to monitor, promote and protect children’s rights. It is essential that promotion and protection of children’s rights is mainstreamed and that all human rights institutions existing in a country work closely together to this end. 26

In that context, of all the changes introduced by ECA, perhaps the most innovative feature is the creation of Councils on the Child and Adolescent at the federal, state (provincial) and municipal levels. Th ese councils, which have equal representation of

24 http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2002.2.En?OpenDocument.

25 ALSTON, Philip and TOBIN, John – Op. cit., p. 41.

26 Committee on the Rights of the Children – 32nd Session – Th e Role of Independent National Human Rights Institutions in the Protection and Promotion of the Rights of the Child : . 15/11/2002.

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the government and non-government organizations, are endowed with decision-making powers and control functions at all levels. Th ey represent a confi rmation from the Judiciary of the need for joint eff ort between State and civil society.

Th ese Councils are also responsible for setting policy guidelines in each area, rationalizing and maximizing the operations of welfare programmes. Th e Municipal Councils are a unique and unprecedented instrument related to the protection of the children’s rights, and they are used not only for the promotion of child policy, but also for the institutionalization of community participation in child issues, as UNICEF (2007)27 has highlighted the Brazilian law was innovative not only from the point of view of the participatory process practiced for its elaboration but also in terms of its content. In this connection, reference will presently be made to certain innovative mechanisms it introduced for the institutionalization of community participation, particularly the so-called Municipal Rights Council. However, before moving on to consider those periods corresponding to trends involving the entire region, it is important that we stress the unique and unprecedented regional impact of the Brazilian process.

It is important to be said that ECA does not create that instrument artifi cially; instead, it has generated the required conditions to the local government and society to decide to create them. In summary, Councils on the Child and Adolescent formulate the guidelines for service delivery policies, Guardianships Councils deal with cases involving children and adolescents, and the judicial authorities are in charge of punishable off ences involving adolescents. By 1999, “3,948 municipal councils were created, in 72 per cent of Brazilian cities”.28 Th e lack of infrastructure over the years has hampered the setting up of municipal councils and which is partly responsible for the lack of understanding concerning the meaning and importance of these bodies in terms of child and adolescent care.

27 UNICEF – Protecting the World’s Children – Op. cit., p. 130.

28 Convention on the Rights of the Child – Committee on the Rights of the Child – Op. cit., p. 16.

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Despite the fact that the creation of those councils has introduced in Brazilian reality a new and eff ective approach to the protection of children’s rights is just a fi rst step, because even considering it a very good news, “although these councils are in place, there still exists a vast discrepancy between rights guaranteed by the ECA and the rights that are currently enjoyed by Brazil’s children. For example, it is estimated that more than 23% of children and adolescents in Brazil, approximately 14 million, still have their rights absolutely denied. As well, it had been estimated that by the end of 2004, councils for the defense of children’s rights were lacking in close to 30% of Brazil’s cities.” 29

d) Brazilian Report on Human Rights (CRC): what have been done?

In order to monitor the progress achieved in the realization of children’s rights, the CRC has established an international expert body, the Committee on the Rights of the Child, which also provides awareness and understanding of the principles and provisions of this treaty. So, as Jane Fortin (2003)30 argues the Committee is the only body with the responsibility for examining the progress made by States Parties in achieving the realisation of their obligations.

Th e interpretation by the Committee of the CRC provisions and principles is framed by the Committee’s monitoring experience and captured in a report called: ‘General Comments’. It covers various topics including early childhood and HIV/AIDS, adolescent health, unaccompanied and separated children, the aims of education and national independent human rights institutions. In its monitoring role, the Committee reviews State Parties reports on the implementation of the CRC. Th e process of revision is based on a constructive dialogue with national delegations and provides an

29 Introduction to Government Accountability – http://blog.comunidadesegura.org/focrib/category/government-accountability/ – July 25th 2008.

30 FORTIN, Jane – Op. cit., p. 44.

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opportunity to better understand the reality in the country concerned and to advise on future priority action. To capture this process, including major achievements, prevailing challenges and recommendations made to the national delegations, the Committee issues ‘Concluding Observations’.

Brazil presented a report to the United Nations Committee on the Rights of the Child in December 2003 in compliance with the provision of art. 44, paragraph 1, of the Convention on the Rights of the Child. Th e document has 710 paragraphs and covers the period from 1991 to 2002. Th e report “seeks to present faithfully the eff orts undertaken at the domestic level to implement measures for defending, promoting and protecting children’s rights, as well as the defi ciencies still existing in this area and the diffi culties encountered in rectifying them”.31

At the beginning of the report, it says that the agenda of the government and the society in terms of children and adolescents’ rights coincide perfectly. It still says that Brazil has an advanced legislation about this subject, the social mobilization plays a important role and that the government has a successful policy toward children’s issues, especially considering the substantial reduction in the infant mortality rate and the signifi cant expansion of primary education.32

A large part of the report was used to explain the features of ECA, as being innovative and advanced. It is also highlighted the series of policies and programmes for combating child labour, as well as a great increase of federal expenditure in social areas, as follows: “Finally, disaggregating GSF (federal social expenditure) by area, one comes to the conclusion that all the areas that make up federal expenditure on children and adolescents increased their relative share in

31 Convention on the Rights of the Child – Committee on the Rights of the Child – Op. cit., p. 07.

32 Ibid., p. 09.

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the total expenditure of each GSF area. Th e greatest increase is found with expenditures in the social assistance area, which went from 30.4 to 36.3 per cent of total GSF allocated to social assistance activities in 2001. Th e education and health areas, in turn, vary less, something around 1.5 percentage points.” 33

e) United Nations Report About Brazil (CRC): what is necessary to do?

Th e United Nation Committee on the Rights of the Child did its considerations about the Brazilian report in November 2004, in a document called: Concluding Observations – Brazil, with 76 paragraphs. Th e Committee welcomed the adoption of 1988 Constitution of Brazil, which has included human rights principles and has given absolute priority to children rights in article 227, and the adoption of ECA, which included the rights provided in CRC.

Despite that, the Committee has noted with concern the dramatic inequality based on race and social class. It has also noted the multitude of actors involved in the implementation of the Convention, but is concerned with the lack of coordination between them, at municipal, state and federal level in order to ensure full implementation of the domestic law and the CRC. Another point highlighted is the absence of an independent and eff ective mechanism in compliance with the Paris Principles to monitor and evaluate the progress in the implementation of the Convention.

Related to budget allocation, it was said that the Committee is concerned that budgetary allocations were distributed without duly taking into account the regional disparities and the need of the most vulnerable groups. Th e Committee also recommends that the State party pay particular attention to the full implementation of article 4 of the Convention by prioritizing and, given recent positive economic developments, by increasing budgetary allocations to ensure

33 Ibid., p. 25.

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at all levels the implementation of the rights of children, in particular those belonging to marginalized and economically disadvantaged groups, including children of African descent and indigenous children “to the maximum extent of … available resources and, where needed, within the framework of international cooperation.”34 Th e Committee also welcomed the eff orts of Brazil to implement the right to health of adolescent and to promote respect to UNCRC principle, as: respect for the view of the child, best interest of the child and birth registration.

It seems that what most concern the Committee were subjects related to the situations of abuse, violence and exploitation of child that still remains. Th e Committee expressed its grave concern at the signifi cant number of street children and the vulnerability of these children to extrajudicial killings, various forms of violence, including torture, sexual abuse and exploitation, and at the lack of a systematic and comprehensive strategy to address the situation and protect these children, and the very poor registration of missing children by the police. 35

f ) A comparison Between Brazilian and British CRC Reports: is there any diff erence?

Despite the huge diff erences between Brazil and United Kingdom in almost every aspect, especially in economic and social conditions, it is possible to identify some similarities related to the lack of public policies toward the protection of children’s rights.

Th e UN consideration of British report submitted under article 44 of the Convention (UNCRC)36 presented

34 Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Concluding Observations: Brazil, p. 04.

35 Ibid., p. 13.

36 Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Concluding Observations: United Kingdom of Great Britain and Northern Ireland, p. 4, 5 and 6.

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on October 2008 shows some areas of concern, as coordination (13), independent monitoring (17), allocation of resources (19) and cooperation with civil society (23). In that report (item 13) the United Nations Committee on the Rights of the Child (UNCRC Committee) reiterated its previous recommendation that the State party ensure eff ective coordination of the implementation of the Convention throughout the State party, including locally, especially where local authorities have signifi cant powers to determine their priorities and allocate budgets. To this end, the State party – in addition to ensuring that each of the jurisdictions has a well resourced and functioning coordinating body – could allocate responsibility for the coordination and evaluation of the Convention across the State party to a single, high-profi le mechanism.

In the item 17 of that report, the Committee recommended that the State party ensure that all four established Commissioners be independent, in compliance with the Paris Principles and mandated, inter alia, to receive and investigate complaints from or on behalf of children concerning violations of their rights. Th ese bodies should be equipped with the necessary human and fi nancial resources in order to carry out their mandate in an eff ective and coordinated manner so that the rights of all children in all parts of the State party are safeguarded. In this regard, the Committee draws the attention of the State party to its general comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child.

In the item 19, the Committee recommended that the State party, in accordance with article 4 of the Convention, allocate the maximum extent of available resources for the implementation of children’s rights, with a special focus on eradicating poverty and that it reduce inequalities across all jurisdictions. In this endeavour, the State party should take into account the Committee’s recommendations issued after the day of general discussion of 21 September 2007 devoted to “Resources for the rights of the child - responsibility of States”. Child

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rights impact assessment should be regularly conducted to evaluate how the allocation of budget is proportionate to the realization of policy developments and the implementation of legislation. In the item 23, the Committee recommended that the State party encourage the active and systematic involvement of civil society, including NGOs and associations of children, in the promotion and implementation of children’s rights, including, inter alia, their participation in the planning stage of policies and cooperation projects, as well as in the follow-up to the concluding observations of the Committee and the preparation of the next periodic report.

In this context, it is possible to conclude that despite the British social and economic conditions, the problems related to the full implementation of CRC principles seem to be similar to Brazil, especially in the areas highlighted before. Th is conclusion may point out to universality in the diffi culty of the implementation of CRC principles.

g) A comparison Between Brazilian and Mexican CRC Reports: what is the diff erence?

After comparing two countries with a very diff erent economic and social conditions and fi nding some similarities between them, it is more than normal to expect to reach a conclusion that both (Brazil and Mexico) have the same kind and level of problem related to children’s rights. However, is it true? Indeed, Brazil and Mexico are similar in some aspects, especially in economic and social conditions. However, are they at the same level if we consider problems that aff ect children?

Th e UN consideration of Mexican report submitted under article 44 of the Convention (CRC)37 presented

37 Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Forty-second session – Concluding Observations: Mexico, p. 3, 4 and 5.

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on October 2008 shows some areas of concern, as legislation and implementation (7), coordination (9), independent monitoring (11), resources for children (16) and cooperation with civil society (20). In that report (item 7) the United Nations Committee on the Rights of the Child (CRC Committee) urged that the State party take all necessary measures to ensure that all federal and state legislation is harmonized with the Convention and relevant international standards thus ensuring their eff ective implementation. Th e Committee also urged that the State party ensure that all state laws be adjusted to the federal laws, in particular the Act on the Protection of the Rights of Children of 2000, and that all states implement as a matter of priority the necessary administrative and institutional reforms.

In the item 9 of that report the Committee recommended that the State party take all necessary measures to ensure that the National Council for Children and Adolescents plays a more vigorous role in the design of public policies in order to fulfi ll the requirement of the Convention on the Rights of the Child in a holistic way, including by giving it a formal role through appropriate legislation and budget, and that civil society is represented in the membership of the Council. In item 11, the Committee recommended that the State party consider amending the federal and state protection laws so as to strengthen and improve mechanisms for accountability, including by allowing the National Human Rights Commission to receive complaints from children. It was also recommended that State Committees of the National System for Monitoring and Supervising the Implementation of the Convention on the Rights of the Child be established in all states of the Republic.

In the item 16, the Committee recommended that the State party strengthen its eff orts to signifi cantly increase the proportion, in nominal and real terms, of the budget allocated to the realization of children’s rights to the “maximum extent … of available resources”, giving special attention to children belonging to economically disadvantaged groups. In the item 20, the Committee recommended

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that the State party ensure that the process is systematically more participatory, and that relevant NGOs be actively involved in the drafting, planning and implementation of policies, legislation and programmes.

Comparing both CRC Reports about Brazil and Mexico, it is possible to conclude that Brazil and Mexico are very similar in this aspect as well – the necessity of improvement of the protection of children’s rights, especially in the fi elds of implementations of the CRC principles, resources allocation, coordination, independent monitoring and cooperation with the civil society. Even in length, both reports are almost equal – 76 paragraphs to Brazil and 78 to Mexico.

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4) Brazilian Problems and Policies Toward the Protection of Children’s Rights

“Politics is the art of preventing people from taking part in aff airs which properly concern them.

(Paul Valery)

a) Children Issues: why is it so diffi cult to move from good intentions to eff ectiveness?

As it was shown before, ECA represents, both in form and content, a true break from previous tradition, combined with a rigorous application of the theory of ‘full protection’. It is an enormously positive step in the struggle for children’s rights, but how the Convention can be converted from a declaration of intentions or aspirations into an eff ective tool for promoting the well-being of children and ensure the fulfi llment of their rights in Brazil?

Brazil has approximately 11.5 million children or 56% of Brazilian children up to 6 years old living in families whose monthly income is less than ½ minimum wage per capita per month.38 Children are especially vulnerable to violations of rights, poverty and equality in Brazil. Th e black children, for example, have almost 70% more likely to live in poverty than the white one; the same can be seen for children living in rural areas. One of the biggest problems related to children care in Brazil are the children in the streets. Th e reasons to explain the increase number of children in the streets are many, and some of them have their roots in the striking economy disparity that exists between diff erent segments of the Brazilian society.39

Th at inequality has the consequence to create a massive infl ux of migrants from rural to urban areas, from north (poor) to south (rich). Th e urban areas that receive those migrations have

38 UNICEF – Children Global Situation 2008 – Brazil Book, p. 08.

39 Inciardi, James A. and Surratti, Hillary L. – Children in the Streets of Brazil: Drug Use, Crime, Violence, and HIV Risks – 1997 (Essay).

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been unable to spend to meet the demands for health care, education and employment. As consequence, slum dwellings, unemployment, hunger and violence have risen dramatically. Related to children issues, the number of children that works in the streets to complement their parents, or, in general, mother budget(s) has risen and it is not diffi cult to conclude that has increased the violence against those children populations. Nowadays, Brazil has one of the largest numbers of children that work or live in the streets, as the table40 below shows:

Table 1. “Working Children” and “Street Children” in Selected Latin American and Caribbean NationsCountry Working Children Street ChildrenArgentina 2.35 million 20,000*Bolivia 72,000 200Brazil 7.4 million 8 million**Costa Rica 53,000 5,300Ecuador 1 million 4,000El Salvador 231,000 10,000Guatemala 1.62 million 1,000***Haiti 120,000 10,000Honduras 275,000 800Mexico 10 million 250,000

*Includes Buenos Aires only. **May include children working, but not living, on the street. ***Includes Guatemala City only. Source: UNICEF, Regional Offi ce for Latin America, Bogota.

At the end of their work – Children in the Streets of Brazil, James Inciardi and Hillary Surratti (1997)41 assure that “For those who work the streets during the day, returning to their favela homes at night, life is harsh and unkind. For the rest who live in the

40 Ibid.

41 Ibid.

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streets day and night, life is mean and unusually short. And for the great majority of Brazil’s street children, it would appear that few changes are likely. Prostitution, drug use, infections, and illiteracy are common, yet there are few programs available to address the many needs of youths.”

b) Social Policies: what has been forgotten by social policies?

In general, despite that huge problem, what is possible to observe in Brazil is that there has been a considerable reduction of the budget allocated to the social areas, and a redirection of funds to sectors such as Industry, Trade and Services, as can be seen in a CEDECA/CE Report about the budget of Ceará related to 200942. Th at document concludes that there is a considerable increase in areas that favor economic sectors such as Industry, Trade and services. Th is budget redirection shows the option to the economic development model that the government wants to implement. Th ere is a trend to benefi t sectors of society linked to business, with the destination of large infrastructure for the development of large enterprises, so as was observed in recent decades. It is important to be said that it is a general trend in Brazil that happens including in one of the poorest state of the Brazilian federation, Ceará, because, as that document assures, observing the proposal in general, it is possible to see a lower participation of some social areas such as Sanitation and Housing.43

And it is not an isolated fact; it covers the three spheres of Brazilian federation, as ANCED (2004)44 assures the level of implementation of public programs of special protection is very low in all three spheres of the Federation. For example: both special judges and tutelary councils fi nd a small number of bodies (Governmental and

42 CEDECA/CE – Center for the Defence of Child and Adolescent/Ceará – Analyse of the situation of Child and Adolescent in PLOA (Law related to the Ceará Budget to 2009).

43 Ibid.

44 ANCED – Th e Report of Civil Society on the Situation of the Rights of the Child and the Adolescent in Brazil – 2004, p. 18 – http://www.crin.org/docs/resources/treaties/crc.37/Brazil_ngo_report.pdf.

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Non-Governmental) at their disposal as refuge centers where children and adolescents with family problems can be placed until their return to their natural family is guaranteed or substitute families are found (adoption, foster, etc.). Th e services of prevention and medical and psychosocial support to victims of sexual or child labor (such as the Federal Government PETI – Program for the Erradication of Child Labor and SENTINELAS – Program for the Victims of Sexual Abuse through agreements with the municipalities) have little coverage in the country (it does not reach half of the municipalities) and they are not universal programs, but focused (the number of vacancies is limited and predetermined). Th e socio-educative programs should function in a similar way, with fast and exceptional initial attention, complementation between institutions and in relation to the executive organs of other public policies.

Another key point that has been forgotten in social policies toward children’s protection is that safeguarding children requires a dual strategy of protection and prevention. Th e concepts are not mutually exclusive. Actually, they are complementary. Prevention is in itself protective by increasing appropriate reporting of child abuse and engaging communities. Proactive protection should result in the prevention of further abuse.

c) Popular Participation, Transparency and Coordination: what is the ideal approach?

Ten in ten reports on how to optimize social policies point to the increase of popular participation in the elaboration of public policies, transparency in public spending and, especially, because coordination is, as UNICEF (2004)45 assures, an essential part of making government work for children, because invariably many departments provide services for children and have an impact on the realization of children’s rights. As the General Comment of the Committee stresses, co-ordination needs to be inter-departmental, multi-disciplinary, promoted

45 UNICEF – Innocenti Research Centre – Op. cit., p. 15.

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between central and sub-national authorities and in collaboration with civil society and the private sector.

Th e ideal approach is faraway from a reasonable result in Brazil, as it is possible to realise from CEDECA/CE report46 about the public spending in Fortaleza, the capital of Ceará, especially because popular participation in public policy decisions should be understood as a right of the people already recognized in some laws and, therefore, it does not end in the preparation of this or that proposal, but in their implementation. In Fortaleza, among the priorities pointed by the population in 2005 to the 2006 budget, part of them has not been completed yet and another even started.47 At the end of that report from CEDECA/CE, as a conclusion, it is said: “It must be guaranteed the conditions placed in this document: the transparency of public spending, the popular sovereignty in the decisions of public resources and the achievement of the aspirations of the population, with the implementations of the works and services chosen by the people.” 48

Another problem related to full implementation of CRC principles is the lack of coordination. So, a visible cross-sectoral coordination is fundamental to recognize and realize children’s rights across the government. Invariably, many diff erent government departments and other governmental aff ect children’s lives and children’s enjoyment of their rights. Few, if any, government departments have no eff ect on children’s lives, direct or indirect. Th e purpose of coordination is to ensure respect for all of the Convention’s principles and standards for all children within the State jurisdiction; to ensure that the obligations inherent in ratifi cation of or accession to the Convention are not only recognized by those large departments which have a substantial impact on children - education,

46 CEDECA/CE (Center for the Defence of Child and Adolescent/Ceará) – Monitoring of the Participatory Budget in Fortaleza – 2008.

47 Ibid.

48 Ibid.

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health or welfare and so on - but right across Government, including for example departments concerned with fi nance, planning, employment and defence, and at all levels.

Another key point suggested by Philip Alston and John Tobin (2005)49 to improve the government public policies is the decentralization of power, resources and responsibilities from the federal (central) government to the local authorities. Th is process requires political reconfi gurations involving a shift from appointed to elected governors and mayors, or the devolution of responsibilities from central to local government, or the introduction of democratic elections in situations where they did not previously apply, the implications for respect for civil and political rights are obvious and one would expect a strongly positive impact. Th ese changes have also involved the devolution of major functional responsibilities in sectors such as health, education, sanitation, water supply and road construction, which in turn have a major potential impact on the enjoyment of economic, social and cultural human rights.

d) Eff ective Budget Allocation: is it all a matter of money?

One of the most important points to the successful of the public policies toward children’s rights protection is eff ective budget allocation. Th e 2006 report prepared by a NGO, called INESC (Instituto de Estudos Socioeconômicos)50 shows that the children and adolescents priority takes place just in law, because Th e priority which, by law, should be given to public policies toward children and adolescents in Brazil has not left the paper. Th e assessment of the numbers of the Child and Adolescent Budget (OCA), which shows the actions in federal budget toward that portion of the population, clearly demonstrates the lack of political will of the government to enforce the law as well as the ineffi ciency

49 ALSTON, Philip and TOBIN, John – Op. cit., p. 58.

50 INESC – Institute of Socio-Economic Studies – Budget and Child and Adolescent Policies, Year VII, July 2006, n.º 21, p. 1 and 2.

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of spending, when evaluated the expenditures made during the year.Another assessment prepared, in 29th June 2007, by Association of Defense Centers for the Rights of the Child and the Adolescent – ANCED51, a national non-governmental organization shows the federal Brazilian government budget, as follows: “Th e table below shows the areas that have been the most aff ected by the decision of the current government, on its fi rst year, to maintain the payment to the fi nancial institutions and to the speculators:

Public bodies/ budget unit Initial Budget Retained B/A (%) Amount (A) Amount (B)Secretary on National Integration 2.046,40 1.857,70 90,8Cities Department 2.200,90 1.874,90 85,2Secretary of Women Politics 24,1 20 83,3Secretary of Human Rights (“SEDH”) 119,6 96 80,3Transports Department 3.939,20 2.540,00 64,5Source : Rezende e Cunha, 200352

* TABLE – Retained amounts and percentages in relation to the total amount set up in law of the most affected bodies according to the damage percentage. Federal Budget 2003. Amounts in billions of Reais.

Th e document concludes that, among the bodies with the higher amount of retained budget resources are the ones related to the eff ectiveness of the human rights. A great part of the Secretary of

51 ANCED (National Association of Defense Centers for the Rights of the Child and the Adolescent) – Budget and Participation – a Brazilian contribution. – 2007.

52 REZENDE, Fernando and CUNHA, Armando – Orçamento público e transição do poder – Rio de Janeiro – Editora: FGV – 160p. – 1ª ed. – 2003.

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Human Rights addresses actions related to children and adolescents. It is important to say that the amounts destined to health and education have also been blocked, making higher investments in these sectors impossible, once over R$ 341 million have already been retained from education and a little over R$ 1 billion and 620 million from health.53

Indeed the second sentence of article 4 of CRC54 refl ects a realistic acceptance that lack of resources - fi nancial and other resources - can hamper the full implementation of economic, social and cultural rights in some States. Despite the fact that this idea introduces the concept of “progressive realization” of such rights, States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation. When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation.55

e) Eff ective Government Structures for Children: existence and work is not enough, it has to be eff ective

One of the most important points to give priority to children is to build an eff ective government structure especially toward the protection of children’s rights. Th ere are many justifi cations for that, as Rachel Hodgkin (1996)56 assures that despite

53 ANCED (National Association of Defense Centers for the Rights of the Child and the Adolescent) – Op. cit.

54 Art. 4 of the United Nations Convention on the Rights of the Child - 1989. States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

55 UNICEF – Innocenti Research Center – General Comments of the Committee on the Rights of the Child – Italy – 2006, p. 32.

56 HODGKIN, Rachel – Eff ective Government Structures for Children – Calouste Gulbenkian Foundation – London – 1996, p. 13.

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their immaturity, children have equal status to adult as members of the human race; children are initially totally dependent, and grow toward independence only with the help of adults; children are more aff ected by the activities – and the inactivities – of central government than any other age-group; children lack the vote, or any direct political power, and play no signifi cant part in the political process; the fi nancial and social costs of failing to ensure children’s healthy development are high.

Th e CRC did not prescribe what government machinery is needed to implement the children’s rights. However, it has given the guidelines to governments to build the ideal structure to achieve CRC goals and across the world, they are waking up to the need to have more eff ective government structures for children. 57

In this context, UNICEF believes that eff ective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children’s rights across Government, between diff erent levels of government and between Government and civil society - including in particular children and young people themselves. Invariably, many diff erent government departments and other governmental or quasi-governmental bodies aff ect children’s lives and children’s enjoyment of their rights. Few, if any, government departments have no eff ect on children’s lives, direct or indirect. Rigorous monitoring of implementation is required, which should be built into the process of government at all levels but also independent monitoring by national human rights institutions, NGOs and others.58

In fact, a good beginning for an eff ective policy toward children’s issues is to end with the invisibility of children. A step forward of that process has been done by CRC, when it suggests

57 UNICEF – Innocenti Research Center – General Comments of the Committee on the Rights of the Child – Italy – 2006, p. 35.

58 Ibid., p. 35.

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the adoption by States parties the implementation of some principles, as: children priority, best interest of children, universal standard, norms of achievement and defi nition of childhood. Normally, general solutions and rigid bureaucracy tend not to work, as Rachel Hodgkin (1996)59 claims that It is arguing against government which lacks any detailed, principled strategy for children; in which diff erent departments give mixed and contradictory orders and messages through legislation and ministries; which promotes local fl exibility in guidance but often prevents it in practice because of rigid departmental boundaries and funding mechanisms.

f ) NGOs and NHRIs: are they really useful?

Th e World Conference on Human Rights, held in 1993, in the Vienna Declaration and Programme of Action reaffi rmed the important and constructive role played by national institutions for the promotion and protection of human rights, and encouraged the establishment and strengthening of national institutions. Th e General Assembly and the Commission on Human Rights have repeatedly called for the establishment of national human rights institutions, underlining the important role NHRIs play in promoting and protecting human rights and enhancing public awareness of those rights. In its general guidelines for periodic reports, the Committee requires that States parties furnish information on any independent body established to promote and protect the rights of the child.60 Besides that there is a universal trend, as Philip Alston and John Tobin (2005)61 suggest, that point out to a rapidly growing of the participation of non-state actors in children’s protection role and that mobilization contribute to enhance the importance of those actors.

In the Brazilian context, the social mobilization sparked by the Convention resulted in the development

59 HODGKIN, Rachel – Op. cit., p. 39.

60 UNICEF – Innocenti Research Center – General Comments of the Committee on the Rights of the Child – Italy – 2006, p. 7.

61 ALSTON, Philip and TOBIN, John – Op. cit., p. 60.

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of a new relationship between non-governmental organization and the government, especially the judiciary. A concrete manifestation of this trend is the creation in Brazil of a new type of non-governmental organization, the ‘Centers for the Defense of Child Rights’. Th e adoption of the Convention, which was eff ected with the active participation of non-governmental organizations, also demonstrated the importance of going far beyond mere assistance.

One of the best examples of a successful NGO work is UNICEF. It has played a very important role related to children issues, and one of its most successful projects is the creation of ‘Th e Municipal Seal of Approval’. It consists of a seal given by UNICEF to encourage the Brazilian municipals to improve their social indicators. Since the creation of the seal is possible to visualize remarkable results, which included major declined in infant mortality and child malnutrition rates, and improved school attendance and health care, because despite its short execution time, the Seal has proven to be an innovative approach to mobilizing civil society and local administrators around child rights in its understanding, implementation and monitoring.62

In this context, it is possible to affi rm that NHRIs have a key role to play in promoting respect for the views of children in all matters aff ecting them, as articulated in article 12 of the Convention63, by Government and throughout society. Th is general principle should be applied to the establishment, organization and activities of national human rights institutions. Institutions must ensure that they have direct contact with children and that children are appropriately involved and consulted. Children’s councils, for example, could be created as advisory bodies for NHRIs to facilitate the

62 UNICEF – Environment and Urbanization – Building Better Cities With Children and Youth – Vol. 14 – Number 2 – 2002, p. 133.

63 Article 12 of UNCRC 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters aff ecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

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participation of children in matters of concern to them. NHRIs should devise specially tailored consultation programmes and imaginative communication strategies to ensure full compliance with article 12 of the Convention. A range of suitable ways in which children can communicate with the institution should be established.

Related to this subject it is important to remember that every state that ratifi es the Convention on the Rights of the Child takes on obligations to implement it fully. Th e role of NHRIs is to monitor independently the State’s compliance and progress towards implementation and to do all it can to ensure full respect for children’s rights. While this may require the institution to develop projects to enhance the promotion and protection of children’s rights, it should not lead to the Government delegating its monitoring obligations to the national institution. It is essential that institutions remain entirely free to set their own agenda and determine their own activities.

As a conclusion, it is possible to say that Brazil is far from fulfi lling the requirements of the CRC, as the Committee of CRC recognize in its report when it highlight the lack of coordination between the actors involved in the implementation of the Convention and showed its concern at the absence of an independent mechanism in compliance with the Paris Principles, with a mandate regularly to monitor and evaluate progress in the implementation of the Convention and which is empowered to receive and address individual complaints, including from children.64

64 Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Concluding Observations: Brazil, p. 03.

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5) Conclusion

“Hope, like the gleaming taper’s light, Adorns and cheers our way; And still, as darker grows the night, Emits a brighter ray.”

(Oliver Goldsmith)

a) Generations of Rights: Can the rights of the children be implemented without taking into account their indivisibility?

Since the idea of generations of rights was fi rst used by Karel Vasak in his inaugural lecture in Strasbourg (1979), it has been built up the fashions of stagnant vision of human rights, correlating them to the motto of the French Revolution: liberty, fraternity and solidarity.65 Th e fi rst generation refers to the rights of freedom - civil and political - resulting from the French libertarian movement (XVIII century). Th e second generation refers to the social, cultural and economic rights – resulting from the relationship of the individual with the social environment of the XIX and XX centuries, and fi nally, the third generation has the relation to the right to healthy environment, technological development, peace etc., appearing at the end of the twentieth century.

Th ose concepts of generations were not considered interrelated, however with the development of social rights and democratic practice, it has been demonstrated that the generations are indivisible and their rights cannot be consider separately, with criticism on several grounds, as Michael Freeman (2008)66 suggests (1) Th e language of generations is inappropriate, because generations succeed each other, but so-called generations of human rights do not; (2) the concept of generation presupposes a questionable history of

65 http://www.britannica.com/EBchecked/topic/275840/human-rights/219326/The-content-of-human-rights-Th ree-generations-of-rights#ref61547.

66 FREEMAN, Michael – Op. cit., p. 48.

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human rights: the supposed fi rst two generations were both recognized in the Universal Declaration; (…)

Th e real implementation of the human rights must take into account the indivisibility between civil, political, economic, social and cultural rights, as UNICEF (2004)67 maintains and states Parties are expected to promote coordination of economic and social policies and to ensure that disparities between diff erent regions and groups of children are bridged, in relation to the access and provision of social services.

To ensure children and adolescents’ rights as human rights, they must be guaranteed as a whole, from an integral standpoint. Th is means that disrespect for any right implies that all the human rights, in one way or another, are violated, since they are interlinked and the guarantee of one right presupposes the guarantee of the others, because “their implementation is mutually supportive, concomitant, and evolving.”68

In this context are the roots of the majority of the problems related to children’s rights, it seems impossible to solve the problem of lack of protection to children’s rights if do not solve at the same time the inequality in Brazilian society, as ANCED (2004)69 puts forward Brazil is the fi fth largest country in the world and a major global economic potency, but continues to be an unjust country, where inequality rules. To confi rm this just take a look at the statistics year after year: While the richest 20% of the population receive 63,8% of the national income, the poorest 20% receive only 2,5% of the total. Th e study “Social Politics: follow up and analysis (2000), from the Institute of Applied Economic Research - IPEA shows that 57 million Brazilians

67 UNICEF – Innocenti Research Centre – Op. cit., p. 15 and 16.

68 Ibid., p. 1.

69 ANCED – Op. cit., p. 3 and 4.

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(35% of the population) live in a state of poverty, that is, their monthly per capita family income is less than half a minimum salary (50 USD). 15% of the Brazilians are extremely poor and survive on less than one dollar a day. At the end, the report affi rms that the United Nations´ Children’s Fund - UNICEF estimates that more than 23% of children and adolescents in Brazil (14 millions) have their rights absolutely denied. Th ey are children of approximately 9 million Brazilian families with a monthly per capita income lower than 1/4 of a minimum salary.

b) A Critical Appraisal: despite the Brazilian ratifi cation of CRC, is Brazil doing its best?

Since reality itself is a social construct, both violence and its counterpart, peace, depend directly on the consensus of the society and there is no doubt that the CRC main merits are twofold: fi rstly, its contents off er enormous possibilities for legislative change, secondly, it has an extremely important role to play in infl uencing both public opinion and non-governmental organizations. Th e internationalization of child rights issues and the work of international agencies and NGOs as well as local child groups on protecting rights has impacted on the Brazilian reform process.

As showed in previous chapters, Brazil ratifi ed the CRC and approved the Child and Adolescent Statute (ECA), but implementation of the rights is still weak. Th ere are many institutions such as human rights commissions, children’s department of government, nevertheless, all of which receive very little human and material resources. As it was showed above, there is a multitude of actors without proper coordination and parallel layers of bureaucracy. It is easy to conclude that this structure undermines the capacity for effi ciency and strong holistic and focused interventions to realize the complex range of rights under CRC.

On the other hand, ECA and the Brazilian policies adopted toward the protection of children’s rights has done

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very well in relation to the decentralization of resources, power and responsibilities from the federal (central) government to local authorities. Th is is one of the most important points recommended by United Nations to achieve full children’s protections, as Philip Alston and John Tobin (2005)70 claim.

However, in general, the absence of an eff ective enforcement procedure has made the rights declared in the constitution merely aspirations or declaratory statements that use the rhetoric of rights, without providing practical relief and remedies. Th ere are some other problems too, as UNICEF (2007)71 points out “(…) most countries invariably report a range of diffi culties that can generally be referred to with two interrelated aspect: a) inadequate fi nancing of social policies specially targeting children, and b) limited political prominence of child-related issues.”

Despite that, ECA is an advanced instrument and is a very good example to other countries, especially because it has incorporated advanced ideas, such as the obligation to the municipalities to spend 25% of their budget on education. In spite of the fi ght about numbers in budget allocation between the governments and some NGO, as CEDECA and ANCED, as shown above, it has a positive point, if we look at it as a beginning of a process to improve the implementation of CRC principles within a true democracy.

Despite everything that has been doing by the government, the failure to recognize the indivisibility of rights also contributes to inadequate resource allocation and establishment of appropriate institutional arrangements to realize children’s rights, as it is possible to see in a conclusion of INESC (2007)72 report that the truth

70 ALSTON, Philip and TOBIN, John – Op. cit., p. 58.

71 UNICEF – Protecting the World’s Children: Op. cit., pg. 130.

72 INESC – Institute of Socio-Economic Studies – Budget and Child and Adolescent Policies, Year VIII, March 2007, n.º 22, pg. 12.

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is that much remains to be done to ensure absolute priority to children and adolescents in the federal budget. Th e budget of 2007, for example, shows losses to public policies toward this portion of the population, corroborating a total breach of the Child and Adolescent Statute (ECA) in particularly in its art. 4, which refers to the absolute priority to child and adolescent. Th e analysis of PPA (Multiannual Plan) 2004/2007 shows a lack of federal government planning related to elaborate law and execute public budget in social areas.

Actually, Brazil was not able yet to move away from the idea that fulfi llment of socio-economic needs and poverty reduction are a matter of discretionary social policy, rather than indivisible human rights. Despite the access to education and resources for social policies are codifi ed and are considered rights, they are not enforceable. Th e obligation to fulfi Il the socio-economic rights by positive measures has not been considered as important as it deserve. Incorporation of those rights into law can prevent successive governments cutting back on social expenditure, but as it is possible to observe “Th e tendency persists in Brazil to maintain a wide gap between announced intentions at global policy level and the corresponding actual achievements. Programmes lack consistent control and evaluation mechanisms.” 73

c) A Solution: is there a fi nal solution to the child question?

Perhaps the report that best summarize this theme and the Brazilian approach to it, is the conclusion written in Law Reform and Implementation of the Convention on the Rights of the Child, prepared by UNICEF (2007)74, in which is explained the importance and need of a holistic approach for the protection of children’s rights. It is said that Law reform is not an end in itself, and the extent to which new legislation has the desired eff ect on the

73 UNICEF – Th e Invisible Adjustment: Poor Women and Th e Economic Crisis – Chile – April 1987, pg. 82.

74 UNICEF – Innocenti Research Centre – Op. cit., p. 108.

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lives of children depends on many variables. Law reform must be part of a broader, holistic strategy for promoting and protecting child rights. While some of the diffi culties that States have encountered in putting new legislation into eff ect have to do with defects in the laws themselves or confl icts between new laws and older ones, most of the obstacles and diffi culties reported point to the need for better planning and coordination, more awareness, training and education activities, allocation of suffi cient resources and participation of civil society. Th ey highlight the need to monitor the impact of new laws. Th is confi rms one of the most important fi ndings of the study on General Measures of Implementation: the interrelationship of the various general measures and the extent to which they are mutually reinforcing. Th e diffi culties encountered by one State in implementing new legal standards were summarized in these terms: ‘Th e Convention on the Rights of the Child has been incorporated, although in spite of the progress that has been made, the Convention is not fully enforced in practice by the various administrative, political and judicial bodies, owing to an unwillingness to change traditional attitudes, a lack of information and resources and the absence of a real national movement for the rights of the child.’ Th is description of the diffi culties encountered highlights the importance of training and awareness-raising, as well as the participation of civil society.

As shown above, there are many reasons to explain why children issues are still in a very weak situation in Brazil, as: failure to give children political priority, lack of co-ordination between governments departments and policies, ineffi cient use of resources, lack of fi nancial resources, and some others. In other words, ensuring that all domestic legislation is fully compatible with the CRC is fundamental, but not enough. Much more is required beyond legislative measures, including the setting-up of institutions and coordinating mechanisms devoted to the protection of children’s rights, awareness raising and information campaigns, as well as training initiatives on the rights of the child and other activities, in government, parliament and the judiciary, at all levels. Th e ideal approach is the involvement of all

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sectors of society in making the rights of children a reality - including children themselves, that has not been done eff ectively in Brazil.

In addition, it can be assured as ANCED (2004)75 claims that the implementation of the so called “guarantee system for the rights of the child and adolescent”, under protection of the Convention on the Rights of the Child, is the result of a relevant and prior normative reorder, especially with the promulgation of the Child and the Adolescent Statute and a series of State and municipal laws of adaptation to the internal legal order of the Statute and the Convention itself. However, the implementation of the aforementioned system should imply in a radical political-institutional reorder in the country and result in the creation and regular function of public arenas (Governmental and Non-Governmental) that should satisfactorily fulfi ll the role of protector of Human Rights in the fi eld of justice and in public administration, particularly. Th e consequence of the low level of implementation of certain organs, services and programs, is that the desired or needed improvement of the special protective care of at-risk children has not been reached. Children and adolescents still suff er from violations of their rights to survival and development and they have a low grade of proactive participation in public life.

Th e lack of fi nancial resources, for example, is often used to justify the failure to realize the fully adoption of CRC’s principles and values. Th e failure to allocate resources is often traced to the burden of debt servicing and pressure from international fi nancial institutions to introduce market economic policies in a context of globalization.

Th e solution to promote the full enjoyment of all rights in the Convention by all children and solve all problems related to it is very well known by all governments, and it pass through a good governance that must control corruption, designate expressing budget

75 ANCED – Th e Report of Civil Society on the Situation of the Rights of the Child and the Adolescent in Brazil – Op. cit., p. 22 and 23.

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to social policies, monitor resource utilization, maximize the available human resources, give transparency to all public policies, establish a coordination between governmental and independent bodies, optimize a comprehensive data collection, develop appropriate policies, services and programmes and, above all, consider children to have equal status to adults as member of the human race, or in other words, follow the UNICEF (2007)76 suggestions that the main problems tend to be gaps in law reform and diffi culties in implementing new legislation designed to protect the rights and principles contained in the Convention. Th e former requires a continued and concerted eff ort to review the legislation in force and amend or replace it, as necessary, to ensure that it adequately protects all the rights of all children. Th e latter requires a long-term eff ort to develop, fi nance and implement programmes to protect the rights of children; to train or retrain public servants whose activities aff ect children; to make the public aware of the rights of children and change attitudes and values that foster violations of their rights; to develop independent mechanisms for promoting and protecting the rights of children; and to document and monitor the actual situation of children and the impact of laws and programmes designed to protect their rights.

Another key point to obtain satisfying results for the implementation and incorporation of CRC principles is the development at the national level of a wide variety of new child-focused and child-sensitive bodies, structures and activities - children’s rights units at the heart of Government, ministers for children, inter-ministerial committees on children, parliamentary committees, child impact analysis, children’s budgets and “state of children’s rights” reports, NGO coalitions on children’s rights, children’s ombudspersons and children’s rights commissioners. However, despite all those aspects seem to be relevant to the full implementation, the main point seems not to be just the

76 UNICEF – Innocenti Research Centre – Op. cit., p. 112.

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incorporation of the concept of indivisibility and economic and social rights in constitution, but the eff ective enforceable of them.

Much has been done, but much more need to be done. In fact, as Mary John (1996)77 affi rms “Children’s rights in international law have passed through a quiet revolution. (...) Th e Quiet Revolution has come a long way since then. But we still have a long way to go. Children and adults working together on these issues can help contribute to the progress.”

77 JOHN, Mary – Children in Charge: Th e Child’s Right to a Fair Hearing – Jessica Kingsley Publishers – 1996, p. 36.

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Annotated Bibliography

Books

ALSTON, Philip and TOBIN, John – Laying the Foundations For Children’s Rights – UNICEF – Italy – 2005.

ANCED (National Association of Defense Centers for the Rights of the Child and the Adolescent) – Budget and Participation – a Brazilian contribution – Brazil – 2007.

ANCED – Th e Report of Civil Society on the Situation of the Rights of the Child and the Adolescent in Brazil – Brazil – 2004.

http://www.crin.org/docs/resources/treaties/crc.37/Brazil_ngo_report.pdf.

BUCK, Trevor – International Child Law – Routledge-Cavendish – 2005.

CEDECA/CE – Center for the Defence of Child and Adolescent/Ceará – Analyse of the situation of Child and Adolescent in PLOA (Law related to the Ceará Budget to 2009).

CEDECA/CE – Center for the Defence of Child and Adolescent/Ceará – Monitoring of the Participatory Budget in Fortaleza – Brazil – 2008.

Children’s Rights Offi ce – Making the Convention Work For Children – Expression Printers ltd. – London – 1995.

COHEN, Cynthia P. and Davidson, Howard A. – Children’s Rights in America: U.N. Convention on the Rights of the Child Compared With United States Law – American Bar Association – U.S.A. – 1990.

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Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties (2003) – Brazil.

Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Concluding Observations: Brazil.

Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Forty-second session – Concluding Observations: Mexico

Convention on the Rights of the Child – Committee on the Rights of the Child – Considerations of Reports Submitted by States Parties – Concluding Observations: United Kingdom of Great Britain and Northern Ireland.

DAVIES, Liz – Protecting Children: a resource book and course reader – Akamas – London – 2006.

DALRYMPLE, Jane and HOUGH, Jan – Having a Voice: an Exploration of Children’s Rights and Advocacy – Venture Press – 1995.

FORTIN, Jane – Children’s Rights and the Developing Law – LexisNexis – 2nd edition – 2003.

FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2008.

FRANKLIN, Bob – Th e New Handbook of Children’s Rights: Comparative Policy and Practice – Routledge – 2005.

FRANKLIN, Bob – Th e Rights of Children – Basil Blackwell – U.S.A. – 1986.

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HIMES, James R. – Th e United Nation Convention on the Right of the Child: Th ree Essays on the Challenge of Implementation – UNICEF – Italy – 1993.

HOWE, Robert B. and COVELL, Katherine – Empowering Children: Children’s Rights Education as a Pathway to Citizenship – University of Toronto Press – 2007.

HODGKIN, Rachel – Eff ective Government Structures for Children – Calouste Gulbenkian Foundation – London – 1996.

HODGKIN, Rachel and NEWELL, Peter – Implementation Handbook for the Convention on the Rights of the Child – UNICEF – 2002.

INCIARDI, James A. and SURRATTI, Hillary L. – Children in the Streets of Brazil: Drug Use, Crime, Violence, and HIV Risks – 1997 (Essay).

INESC – Institute of Socio-Economic Studies – Budget and Child and Adolescent Policies, Year VII, July 2006, n.º 21 – Brazil.

INESC – Institute of Socio-Economic Studies – Budget and Child and Adolescent Policies, Year VIII, March 2007, n.º 22 – Brazil.

JOHN, Mary – Children in Charge: Th e Child’s Right to a Fair Hearing – Jessica Kingsley Publishers – 1996.

REZENDE, Fernando and CUNHA, Armando – Orçamento Público e Transição do Poder – Rio de Janeiro – FGV – 2003.

SMITH, Rhona K. M. – International Human Rights – Oxford University Press – 2nd edition – Oxford – 2005.

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STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford University Press – 2nd edition – 2000.

UNICEF – Children Global Situation 2008 – Brazil Book.

UNICEF – Environment and Urbanization – Building Better Cities With Children and Youth – Vol. 14 – Number 2 – London – 2002.

UNICEF – Innocenti Research Center – General Comments of the Committee on the Rights of the Child – Italy – 2006.

UNICEF – Innocenti Research Centre – Law Reform and Implementation of the Convention on the Rights of the Child – Italy – 2007.

UNICEF – Innocenti Research Centre – Summary Report of the Study on the Impact of the Implementation of the Convention on the Rights of the Child – Italy – 2004.

UNICEF – Th e Invisible Adjustment: Poor Women and Th e Economic Crisis – Chile – April 1987.

UNICEF – Protecting the World’s Children – Cambridge University Press – 2007.

Websites

http://www2.ohchr.org/english/bodies/crc/index.htm - Committee on the Rights of the Children.

http://www.ohchr.org/EN/countries/LACRegion/Pages/BRIndex.aspx - United Nations Humans Rights – Brazil Homepage.

http://www.unicef-irc.org - UNICEF – Innocenti Research Center.

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http://www.crin.org - Child Rights Information Network.

http://www.direct.gov.uk/en/Parents/FamilyIssuesAndTh eLaw/index.htm?cids=Google_PPC&cre=Parents - U.K.

http://www.bbc.co.uk/worldservice/people/features/childrensrights/index.shtml - U.K.

http://hrw.org/doc/?t=children

http://www.planalto.gov.br/ccivil/LEIS/L8069.htm - Brazil.

http://www.senado.gov.br/web/senador/PatriciaSaboya/index.html - Brazil.

http://www.andi.org.br - Brazil.

http://www.cedecaceara.org.br/principal.htm - Brazil.

http://www.pirambudigital.com - Cooperativa Pirambu Digital – Brazil.

http://www.catavento.org.br/index.asp - Catavento Comunicação e Educação – Brazil.

http://w3.datasus.gov.br/datasus/datasus.php - Ministério da Saúde - Brazil.

http://blog.comunidadesegura.org/focrib/category/government-accountability/ - Brazil.

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19 November 2009

Award Confirmation

To Whom it May Concern

Student Name:

Student Reference:

Date of Birth:

Course:

Route:

Start Date:

End Date:

Award:

Class:

Title:

Date of Award:

• • •..'. .•••••••• ••e. •

LONDON ::-metropolitan • .: •• •

• • •university. •

166-220 Holloway RoadLondon N7 8DB

Telephone 020 7423 0000

www.londonmet.ac.ukJose Anastacio De Aguiar

07051666

13/02/1964

Masters Degree (Taught)

Human Rights

23/09/2008

18/09/2009

Master of Laws

Pass

Human Rights

28/10/2009

This is to certify that the above named student has been awarded the qualification specified. The awardingbody is London Metropolitan University, a publicly funded university regulated by the Quality AssuranceAgency. The University's Sponsor Licence number is 914V1JK69. A certificate would normally be producedwithin 6 weeks of the confirmation of award however during busy times this may take longer, the awarddate is listed above.

Yours faithfully

The University is a charity and a company limited by guarantee no. 974438.registered In England. Registered office 31 Jewry Street. London EC3N ZEY

Undergraduate/PoslQraduate Office

S Lo.ndon Metropolitan UniversityIl'l.Qdbroke House

62-66 Highbury GroveLondon N5 2AD

.' ..... .•.........•LONDON ::.

OlttropoHt.n ••:- ••LJI1lvtrstty: •

Apêndice I

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• • •.." .• ••• • ••• •••• ••••LONDON - ••

metropolitan • .: ••• • •

university. •

Department of Law,Governance andInternational Relations

Ladbroke House62-66 Highbury Grove

London N5 2ADTelephone 020 7423 0000

Facsimile 020 7133 5191

23rd July 2009

To Whom it May Concern

www.londonmet.ac.uk

Jose Anastacio de Sousa Aguiar was one of my students in the International Childand Human Rights Law module. I was also his dissertation supervisor.

He is a highly motivated and committed student and is very dedicated to the study ofHuman Rights. Jose is particularly interested in issues that impact on developingcountries. He submitted a very thought provoking dissertation, analysing theeffectiveness and the real impact of Brazilian legislation and policies on children. Hewas extremely receptive to any suggestions that were made to improve his researchand arguments.

Jose is a bright student, interested in the both the narrow and wider relevance andapplication of law in society. His contributions to class discussions were interestingand topical, analytical and in-depth and went well beyond a basic consideration ofthe issues. He is innovative and takes the initiative - for example he set up a websiteat the university to encourage postgraduate students to make academic andscholastic contributions.

Jose is articulate in expressing his views, both orally and in writing. He seems tohave the ability to engage in difficult and controversial discussions in a diplomaticway, mindful and very inclusive of others. Jose seems well organised and manageshis very time efficiently. He is friendly and seems to be well liked by his peers.

I enjoyed teaching Jose and supervising his dissertation. It has been a pleasureknowing him during his time with us at London Metropolitan University.

Y~urs sincerely'g:/' . I ~

~~~ etV~\Senior Lecturer in Law

The University is a chanty and a company limited by guarantee no. 974438,registered in England. Registered office 31 Jewry Street. London EON ZEY

Apêndice II

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• • •• ••• ••••••••• •••• ••••LONDON ••• •metropolitan: ••••university' •

Finance Department166-220 Holloway Road

London N 7 8DBSwitchboard 02074230000

To Whom It May Concernwww.londonmet.ac.uk

This is to confirm that the below student has paid £9000.00 the full cost histuition fees for the academic year 2008/09.

Student Name:

Course Names:

ID Number:

Date:

Jose Anastacio De AGUIAR

Masters Degree (Taught): Human Rights

07051666

24th June 2009

Yo..6rs faithfully

G-~Rrunal Patel

Income SectionFinance Department

Income Section166-220 Holloway Roadlondon N1 80B

,,.• •••••..~.......•

LONDON .:::metropolitan :00 .,

unIVersity, '

The University is a charity and a company limited by guarantee no. 974438,registered in England. Registered office 31 Jewry Street, London EC3N ZEY

Apêndice III

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Apêndice IV

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Apêndice V

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Apêndice VI

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Este livro foi composto na fonte Adobe Garamond Pro, corpo 8, 12, 13, 14, 16. O miolo foi impresso em papel Off set LD 75g e a capa em

cartão supremo LD 250, na Expressão Gráfi ca, em maio de 2010.

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José A

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José Anastácio de Sousa AguiarJosé Anastácio de Sousa Aguiar

London Metropolitan UniversityLondon Metropolitan University

Master Of Laws:Master Of Laws:

Human rightsHuman rights

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Ma

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O tema Direitos Humanos, em especial o que se refere a sua efetiva implementação no âmbito internacional, é assunto recente. Foi na Declaração Universal dos Direitos Humanos, aprovada pela Assembléia Geral das Nações Unidas em 10

de dezembro de 1948, que efetivamente o seu ideário tomou forma e começou a existir. A sua aprovação, bem como a própria criação da ONU, foi refl exo direto da II Guerra Mundial. Os países fi nalmente se convenceram que o mundo não poderia fi car a mercê de governos autoritários e delirantes que colocassem em risco a própria existência da hu-manidade, ou pelo menos, do mundo civilizado.

É possível afi rmar que desde então muito foi feito para a efetiva implementação e respeito aos direitos do homem, entretanto em que pese os avanços alcançados, mui-to há por fazer. Por incrível que possa parecer o maior inimigo do referido ideal não é o próprio homem, mas sua personifi cação em (des)governos pelo mundo afora. Sim, a maior ameaça ao homem, desde as mais priscas eras, são os governantes. Esse assunto já foi brilhantemente abordado quando do estudo da real necessidade do Estado por notáveis pensadores, como Th omas Hobbes, Jean-Jacques Rousseau, John Locke e por que não citar Norberto Bobbio. Talvez seja possível concluir que o governo perde a sua legitimidade quando os interesses dos governantes se sobrepõem à liberdade do povo. Sim, cito liberdade e não qualquer outro bem social, pois como já disse Voltaire: “Prefi ro a liberdade ao pão.”

No extremo oposto, temos a Democracia como grande aliada dos Direitos Huma-nos. Um rápido olhar na história nos mostrará que os maiores benefícios auferidos pela humanidade são refl exos diretos da capacidade de uma sociedade se organizar em uma democracia.

Hodiernamente, a liberdade, e como via de conseqüência os Direitos Humanos, enfrentam uma nova ameaça: governos populistas travestidos de democracia. Ancorado em anseios populares legítimos, alguns governantes aproveitam-se do apelo popular para chegar ao poder e manter-se indefi nidamente. Suas primeiras vítimas são a imprensa e a classe média que são perseguidas por anteverem os malefícios que ditos “governos do povo” trarão ao próprio povo. Mal sabem esses auto-denominados “salvadores da pátria” que serão eles mesmos os primeiros a serem engolidos pelo monstro que eles criaram.

Muito temos a agradecer às gerações passadas que em muitos casos sacrifi caram a própria vida para não se submeterem a ideais totalitários que tornavam o povo escravo de interesses inconfessáveis de governantes sempre dispostos a ludibriar as massas com promessas falaciosas e megalomaníacas. É chegada a vez da nossa geração manter acessa a chama da liberdade e da democracia, e o seu preço será, por certo, a eterna vigilância na defesa a qualquer custo do maior dos bens dos direitos humanos: o direito a ser (e ser tratado como) humano.

Como dizia Fernando Pessoa, “o homem é do tamanho de seus sonhos”. Esta obra do jurista e fi lósofo Prof. José Anastácio de Sousa Aguiar é uma prova inconteste de que tudo se torna possível quando temos a coragem e a determina-ção de enfrentar os desafi os em busca de nossos sonhos. Este livro é o resultado de uma extensa pesquisa em um curso de mestrado em Londres.

Das lides de suas atribuições como professor e jurista o autor poderia ter escolhido diversos outros temas para sua pesquisa. Porém, motivado por sua agu-çada responsabilidade social e por sua grandiosa visão de futuro, preferiu apro-fundar suas refl exões sobre a criança e o adolescente. Analisar e trazer para deba-te os impactos das políticas de proteção à criança e ao adolescente demonstra a preocupação do autor com o futuro do Ceará e do país, além de ser um tema signifi cativamente oportuno, uma vez que faz parte das agendas dos organismos internacionais, como as Nações Unidas, União Européia, Banco Mundial e diver-sos outros, que dentre suas atividades está a elaboração e fi nanciamento de políticas com essa fi nalidade.

No Brasil, desde o fi nal do século passado, as crianças e os adolescentes passaram a contar com um estatuto que garante seus direitos e defi ne diretrizes para as demais políticas nos três níveis de governo. Porém, a luta deve continu-ar para que tais políticas sejam conside-radas uma questão de Estado e não de governo e para que não venham a sofrer descontinuidade que comprometam seus resultados.

O Dr. Anastácio nesta pesquisa apro-funda com muita propriedade muitas ou-tras questões e trás para o debate determi-nados pontos que servirão para a refl exão dos policy makers e responsáveis pelas po-líticas de desenvolvimento daqueles que representam o futuro desse país. Pois, jamais poderemos esquecer o que disse Karl Mannheim, sociólogo e professor da London School of Economics: “O que se faz

agora com as crianças é o que elas farão depois com a sociedade”.

Por isso, este livro além de trazer no-vos conhecimentos, chama a atenção para uma questão estratégica para o futuro do Ceará e do Brasil.Parabéns ao autor!

José Joaquim Neto Cisne

Curriculum do autorJosé Anastácio de Sousa Aguiar é Ad-

vogado da União, em exercício na Pro-curadoria da União no Estado do Ceará. Formou-se em Direito pelo Centro de Ensino Unifi cado de Brasília/DF (Uni-CEUB) em 1997. Pós-graduado pela Escola da Magistratura do Distrito Fe-deral em 1998. Ex-professor de Direito Constitucional e Administrativo da Asso-ciação de Ensino Unifi cado do Distrito Federal (AEUDF) e de diversos cursos de preparação para concursos públicos, em especial o Obcursos, em Brasília. Co-autor de 02 livros jurídicos: Questões Comentadas de Direito Administrativo e de Direito Constitucional, editados pela Atlas. Co-autor do livro sobre genealogia ‘Família Aguiar – 7 Séculos de História’ e autor do livro sobre fi losofi a ‘O Des-pertar para a Filosofi a’. Co-fundador em Londres do Latin American Issues Forum (LAIF). Mestre em Direitos Humanos pela London Metropolitan University. Di-plomado em profi ciência no idioma es-panhol pela Universidade de Salamanca na Espanha.