DR. JUDGE MEDIATOR OF CONFLICT ARCHBISHOP EPARCH KYRILLOS ALVES APPOINTED AND SWORN GENERAL SECRETARIAT FOR MULTIPURPOSE INTER PARLIAMENTARY UNION - INTERNATIONAL PEACE NGO - TMIPU IN BRAZIL VOICE OF THE REAL TRUTH - HUMAN RIGHTS FOR HUMAN RIGHTS. (our translation text). The cosmopolitan citizenship is one of the main limits of the performance of the sovereign power; it gives assurance of international protection in the absence of protection of the national state. Justice delayed is not justice, but injustice, qualified and manifest. Illegal Why the delay in the hands of the judge contrary to the written law of the parties, and thus the damages in equity, in honor and freedom ( Rui Barbosa). That first judges are those who have elected plaintiff and the defendant, to whom the name of arbitrators agree more that the judges” Plato , In De Legibus ”The world that awaits us is not to be conquered, but to be built. The Reinvention of the World, Jean - Claude Guillebaud ( Bertrand Brazil ) ”Three things are essential to bearing the burdens of life: hope, dream and laugh” Immanuel Kant (1724-1804) PROTECTION OF HUMAN RIGHTS Guilherme Assis de Almeida Guilherme Assis de Almeida is a Doctor of Law from USP, with a post- doctorate in Political Science, the Center for the Study of Violence (USP), Consultant Civil Society and Citizen Security IDB (Interamerican Development Bank) and teacher UniCEUB/Brazily. [email protected] GLOBAL PROTECTION OF HUMAN RIGHTS : A BRIEF HISTORICAL OVERVIEW The advent of the International Law of Human Rights in 1945, enabled the emergence of a new form of citizenship. Since then, the legal protection of the international system for human beings came to be independent of their bond of nationality with a particular state, with the sole requirement and fundamental fact of birth. This new citizenship can be defined as global or cosmopolitan citizenship, differing citizenship of the nation state. The cosmopolitan citizenship is one of the main limits of the performance of the sovereign power, it gives assurance of international protection in the absence of protection of the national state. In this sense, the relation of sovereignty to international human rights law is a limiting relationship. Both the state - subject of classical law of international law - such as international organizations, subject of law supervening expand the playing field of international law, but not affect its structure, since it is the logic of sovereignty that the agenda performance of these subjects of law, as set out in Article 2, paragraph 1, of the Charter of the United Nations: the Organization is based on the principle of sovereign equality of all its members. However, when the individual acquires the status of subject of law in the international community - which occurs through the advent of international human rights law - the very structure of public international law suffers a concussion, since the state can no longer assert the argument to be in the exercise of its sovereignty to justify human rights violations in their territory. This happens because a subject of human rights within the international legal order and the protection of their rights becomes one of the goals of public international law. The dignity of the human person is the essential value of human rights protection, enabling globally, its protection by international organizations, which may be authorized to act in opposition to the exercise of the sovereign power of any State. After 1945, the person in an extreme situation may even lose the right to exercise their own nationality, but not lose the guarantee of international protection. LOCAL PROTECTION OF HUMAN RIGHTS Every man worth at where you are: your value as a producer, consumer, citizen, dependent on their location in the territory. Its value is changing, endlessly, for better or for worse, depending on the differences in accessibility (time, frequency, price), independent of their own condition. People with the same virtues, the same training and the same salary even have different values according to where they live: the opportunities are not the same. Therefore, the possibility of being more or less citizen depends to a large extent, the point where the area is. As a place becomes a condition of his poverty, could elsewhere, the same historical moment, to facilitate access to those good and services that are theoretically due, but which in fact lacks. ( SANTOS, 1987 p.81 ) One necessary clarification should be made regarding our understanding of the adjective local. It is here understood as complementary opposite of global and, in the dictionary definition, relative or belonging to a certain place or the place in which we live. As stated by Milton Santos, the location is space, the territory where they live: the territory of experience. Thus, the overall size, the dignity of the human person demands, often the action of an international organization to be effectively protected. Locally, the demand is different, because the interaction occurs in everyday, face to face. It is really necessary to respect the dignity of every human person in its various singularities. The recognition of the other, the different, is the foundation of a relationship of hospitality and also a key factor in the creation of identity, to be built, needs dialogue with one other than myself and that, first of all, acknowledge me as the interlocutor ( TAYLOR, 1992). I cannot find my identity alone: I deal in a dialogue on the outside, on the inside, with the other. This is because the development of an ideal identity engendered interior imparts a new importance to the recognition of the other. My own identity depends primarily on my dialogical relations with others (Taylor, 1992, p.65, our translation). The exercise of human rights at the local level does not get the recognition that we are close, similar, known and therefore a priori respected , but on the other, the different nodes, the diverse, since: ( ... ) accept cultural diversity is not an act of tolerance towards each other, unlike me or my community, but the recognition that other ( personal and community ) as a full reality, contradictory, as the bearer of knowledge, knowledge and practices through which it is and tries to be fully. (COLL , 2006, p . 98 ). This exercise of recognition of difference is a constant practice of the projects analyzed. Experientially know the location of the project and exercising cultural diversity are two complementary actions and sometimes simultaneous. The Guide Referrals School of Citizenship and Justice, Community Justice Project, recommends: So , one of the fundamental tasks of the agent is to know the local resources, ie, know as much about all kinds of services that the residents of community has at its disposal. Also the publication Community Justice, provides an experience: In the same sense, the Community Justice Program, adopts the community as privileged sphere of action because conceives democracy as a process which, when exercised at the community level, by agents and local channels, promotes social inclusion and active citizenship, from local knowledge. It is the instance of the community that individuals build their social relations and can participate more actively in political decisions. It is in this context that stimulates the ability of self-determination of the citizens role and ownership of their own history. The manual suggests Rights Tour: Always remember the local resources available. People manage their conflicts in some way, either through the courts or by way private, legitimate or not, peaceful or otherwise. It is important to know and recognize these local resources (as long as legal and legitimate), they can be useful in a mediation, for example. LEGAL ASSISTANCE AND HUMAN RIGHTS Hegel said that making the right because of his training , only accessible to those about him scholarly dealing with, injustice is equal to that of the tyrant Dionysius made when sent to post the tablets so high that no citizen could read to . ( ENGISH , p. 139) Article 153 paragraph 32 shall be granted legal aid to the needy , according to the law. (Constitution of 1969) Article 5 ... LXXIV: the State shall provide full and free legal assistance to those who prove insufficiency of funds. (Constitution 1988) Legal aid is contained in legal assistance, and the second most extensive and comprehensive ( as stated in the 1988 Constitution ). The question to be asked is: What is your limit? What is the purpose of performance of the strictly legal? We believe that this goal is divided into three main tasks: • Access to knowledge of the rights of the human person through democratization of basic legal information; • referral to the Judiciary and other State institutions; • support and encouragement to citizenship. These three tasks are fulfilled by the projects analyzed. Cordel Educational Program in Community Justice clarifies : Community Justice is an instrument that creates Democracy for everyone and promotes citizenship that helps clarify, prevent and resolve conflicts and violence; simplify the issues, clarify the reasons and avoid incidents. The fotonovela the right to know is a concrete exercise of hermeneutic diatopic, Boa Ventura de Sousa Santos. Translates the topoi ( common place ) for legal topoi possible understanding by the community. Are the agents community project that interpret the characters in the story. Likewise, the reflection based on her own experience of team work of Viva Rio, contained in the Manual of branches of law, illustrates these issues : Not seeking access to something that is not known. The first barrier was therefore cultural dimension in a very elementary: you cannot seek restitution of rights is not known. Among several fouls access, access to information in general, and access to information about rights and duties, in particular, emerged as challenges. When we speak of rights in a community, one must remember that it is a formal knowledge, restricted, academics, own so-called Law operators. Few people understand what is spoken, much less how it operates. The first analysis, based on a cultural reading , realized , that was not known nor understood, in general, certain relationships as relationships right and duty , but as relations sense, no legal protection, state, legal therefore. The first challenge was to get the reaction and taking action - the democratization of rights and duties becomes, therefore, a key concept. It should become common these information accessible, in a language that is understood everywhere. Breaking the barrier of “legalese that separates both “operators of” lay . One of the recurrent cases contained in the manual Rights Counter shows how basic can be the information and how it is fundamental to the life of the person served. Case 6: I do not exist A kind of case is quite common, especially when the community has people from an out of town (especially inland), and that to us may seem very simple: lack of basic civil documents. Without the basic documents, the citizen does not exist as a rule, for public policy. Should have recorded the entire network of support in this direction , so that the routing is not only efficient but accurate: the public often does not meet the population as it could and should. It is important to make sure that the person on the path that will follow, certainly achieved with quality information . It must be clear that the provision of legal assistance that respects the uniqueness of each human being is also a form of exercise of justice, since communication and justice are intertwined so deep. Clarifies us Flavius Vespasian { Di Giorgi ASSISI DE ALMEIDA , 1992 , p . 14 }: Fair to say , say it often so hard, so difficult in our reality by prejudice , for elitism , and that I would first like to say about the preliminary communication, so that the communication does not appear as a natural thing, not have impediments. Is yes, in social life. Nothing more terrible than you have to speak and unable to speak because they feel discriminated against. On the other hand the very etymology of the word communicate is very beautiful: communicate comes from a Latin word munus. Munus is a word that has two meanings: it means a gift, a gift usually due to a service you provided. So much so that there also comes the word compensation. It also means a charge that you took with their peers, their community before you undertakes to perform, to fulfill. Now , communicate with the prefix co means in common together . Actually means, gifting and fulfill the commitment together. Rewarding and fulfilling the commitment. It seems to me that there are two elements within the concept of justice. Justice is, in a way, certain compensation: you give the person who is it. On the other hand, is a fulfillment of commitments that are in relationships of affection, in labor relations? Are two elements in justice. If you remember the three criteria that the Roman law was attributed: HONESTe vivere ( to live honestly ), Nemini laedere (not harming anyone) and Suun cuique tribuere (give to each what is his ) . You will see then that the fair is very attached to the idea of communication. Then say it is not fair to say one side and the other fair, and they intertwine, they have a deep kinship. In saying there is already an implicit idea of justice. Do not forget that legal means to say the righteous. Therefore, legal aid is a job fair to say. Say just as much in relation to the wizard assisted, as seen in relation to the wizard. Legal assistance consistent presupposes a conscious effort on the part of agents of the project, in order to facilitate the discovery of human dignity ( a) assisted ( a) in the context of the territory in which (s) he lives through the act of saying. However, according Di Giorgi, the act of saying is fraught with obstacles and difficulties ( ASSISI DE ALMEIDA, 1992 , p . 14 ). Many are deprived of the knowledge that they have, as individuals, an inherent power of communication. Are marginalized because they do not have the cultural norms. So its like they had not even language, they are not recognized . And it really dampens awareness of their rights. There are many people who do not defend their rights because they do not know, but because they are inhibited. They feel that their language is neglected. The exercise of citizenship is largely linked to whether or not you recognized their communicational abilities. CONFLICT RESOLUTION, HUMAN RIGHTS AND VIOLENCE PREVENTION. JUDICIARY AND MEDIATION ( ... ) When there is some dependence among men , they resort to the judge . To meet this means presenting yourself to justice because the judge wants to be, so to speak , justice incarnate . In the person of the judge seeks to an impartial third party and some call judges as arbitrators and mediators , wanting to point out that , when it has found the man of the right measure , will be able to obtain justice . Therefore, justice is the right measure, at least when the judge is able to incorporate it . The judge maintains the balance balanced between the two parties. (Aristotle, Nicomachean Ethics ) The text of Aristotle illustrates the fact that the search for a third party that does not belong to the dispute between the parties is an ancient remedy used by various social groups in the search for their conflicts. This third party can be a judge, an arbitrator, a mediator or any other person or group of people able to rectify the situation of inequality. In the presence of a judge or an arbitrator, has resolved the conflict situation by regulatory apparatus of the law. Already in the presence of a mediator, the situation is equated in a lawful manner, following the rules of law (positive or customary), but not necessarily making use of the apparatus institutional - normative the Dogmatic Legal. In any of the cases given above, the law is present as a beacon of conflict. This fact is a constant in human history, concluding that both anthropology and sociology of Direito.1 By saying that the solution of the conflict is fundamentally linked to the law, it is prudent to clarify what form of conflict resolution and type of law we treating . Boaventura de Sousa Santos (1988 ) proposes two divisions for the decision model for conflict resolution: the award made by the judiciary, with the collaboration of other law professionals in accordance with the standards of Legal Dogmatics, and mediation, which is held by various agents of the judiciary or by members of the community are not guided only and solely the normative apparatus of Legal Dogmatic, but mainly making use of brand new rhetoric.2 Among the various forms of mediation broad sense, it can be suggested following classification: • conflict prevention - through legal advice and assistance; • Trading - differs from mediation in order that the negotiator only facilitates the understanding between the parties, not posing as a third actor; • strictly mediation - the mediator acts as a third actor , presenting himself as a resolution of the conflict; • transformation - the third enables the transformation of an antagonistic situation ( conflict ) in a commitment to mutual cooperation; • transcendence - the conflict is completely transcended. 3 There are many differences between mediation broad sense and award. Within this article, we analyze the features that make mediation work for conflict resolution and also a way to promote human rights and violence prevention, namely: the use of rhetorical perspective topic for the search of the decision and the work of mediation as an opportunity for human development and the promotion of coexistence. Boaventura de Sousa Santos (1988, p.43- 44 ), commenting on the legal discourse of Pasargadae as opposed to State law, clarifies : Resource - rhetorical topics: Instead of state legal discourse, legal discourse of Pasargadae makes a great use of topoi and simultaneously a sparse use laws. Regardless of the rhetorical elements that one way or another always involved in the application of laws to cases, there is no doubt that these are vulnerable to a systematic and dogmatic, a vulnerability that deepens with the professionalization and bureaucratization of legal functions. And beyond the topoi, the legal discourse of Pasargadae still uses a complex rhetorical arsenal of instruments. One of several reasons why the prospect - topic rhetoric is used is linked to the form of judicial power, which is unable to interact with the communities in screen. Accordingly, Souza Neto mentions that: Within the typology of methods for conflict resolution, mediation presents itself as able to cope with the absence of the legal apparatus - state in slum communities. In the context of decision theory, the perspective becomes important topic rhetoric - in - lieu of formal syllogistic approach that characterizes the judicial application of law ( RIBEIRO; Strozenberg, 2001, p 82 ). In the absence of the Judiciary, is used initially to mediation as a mere replacement of state agencies. Subsequently, it was found that the mediation, and a practical substitute is specifically appropriate practical perspective since the thread - rhetorical is characterized dialog and be located . Thus, according to Souza Neto: ( ... ) These definitions of the fundamental concept of topical now realize its essentially dialogical. In this direction, Viehweg states that the fundamental premises are legitimated by the acceptance of the party. If the argument is necessarily dialogic and, as it seeks to convince, the whole argument is personal, addressed to individuals for which she strives to achieve adherence. So is that an argument is necessarily situated. RIBEIRO, Strozenberg, 2001, p 86 ). The discovery of mediation as a means of conflict resolution meets a basic need of the local population: the resolution of conflicts, and allow in forwarding conflict resolution, men and women have the opportunity to find out as subjects of rights endowed dignity. In the mediation process, human rights and basic needs fulfill a fundamental function: to provide guidelines for a good decision. Says Johan Galtung: ( 2006 . P.111 ) . Here is a basic rule: the achievement of a goal for meeting basic human needs - basic rights - then it is legitimate. Basic needs, ie, survive on physical well-being, meaning that the biological needs are reasonably met, living life in freedom, identity and meaning. Human rights reflect this, not perfection, but with a good approximation. So it uses the basic needs as a guide. MEDIATION AND HUMAN DEVELOPMENT The breadth of legal discourse rhetorical space varies inversely with the level of institutionalization of the legal function and power of the instruments of coercion in the service of legal production. (Santos, 1988 , p . 59 ). The finding Bonaventura de Sousa Santos makes clear that the exercise of rhetoric in the legal sphere is possible as the decisions are not attached to the exercise of judicial power. Finally, the practice of the projects under review of saying the right enables rhetorical exercise on a large scale, which, in turn, is of fundamental importance to the democratization of community life. To be able to exercise the communicational abilities to the fullest, people empower themselves as citizens and have their human rights promoted. An important point is the rhetorical exercise does not stick to the existence of a speaker who addresses an audience. Both should be mixed to the point that indifference. Should have as a goal the pursuit of brand new rhetoric Bonaventure understand that the brand new rhetoric will intensify dialogical dimension Interstitial new rhetoric and convert it to the regulative principle of argumentative practice ideally polarity speaker / audience should lose stiffness to become a dynamic sequence of positions of speaker and audience interchangeable positions and reciprocal that makes the outcome of argumentative exchange truly unfinished: firstly, because the initial speaker may end up turning into the auditorium, and vice versa the auditorium speaker and, secondly, because the direction of persuasion is inherently contingent and reversible. In exercising the brand new rhetoric, the man or woman is discovered as a subject of law in full exercise of their freedom. Freedom here understood not as mere free will, but as a creator of bonds act together. It is the freedom - Amartya Sen seconds - that consume the development process. The author presents a cosmopolitan vision of freedom, centered on the human person as the central subject and main beneficiary. The Declaration on the Right to Development (1986 - Article 2, Clause 1 ) states that the human person is the central subject of development and should be the active participant and its main beneficiary. The human person is the central subject, the state does not occupy a prominent role here, although it is considered necessary and important agent in public policymaking generating development. In this perspective, the state can be a facilitator or not. The theory of Development as Freedom by Amartya Sen, to address the issue of developing a cosmopolitan perspective, is beyond the logic of the sovereign power of the State. This means that the phenomenon of power is seen as a collective action and not submission, be it of any kind. This process of collective action is that enables the expansion of individual liberties, expanding this propitious development. The fundamental responsibility of the person is exercising their individual freedom while social commitment (Sen, 2000, p.337). The organizing principle that assembles all the parts into an integrated whole is the broad concern with the process of increasing individual freedoms and social commitment to help to make it come true ( ... ) the development is really a very serious commitment to the possibilities of freedom. These visions of freedom and development as two complementary actions and the need to eliminate obstacles to the exercise of freedom are directly related to the definition of Galtung (1990, p.334) on violence: violence is defined here as the cause of difference between the potential and the actual, between what could have been and what is. The violence is what increases the distance between the potential and the current, and prevents the decrease of that distance. In this perspective, violence is any action that prevents or hinders the development (decreased between potential and current). Accordingly, non-violence should be considered basic, indispensable to the exercise of the right to development. These rights need to be protected with a true aura of non-violence, since they are the foundation of everything that the human being can be.
Posted on: Sat, 16 Nov 2013 22:17:53 +0000