Latin American Human Rights Studies

Are Green and Yellow Really Part of the Rainbow? The Mismatch between the Brazilian Foreign Policy Protagonism for LGBT Human Rights at the UN and the Underachievement of Domestic Public Policies.

João Guilherme de Almeida Bueno — 2024-02-26

From 1999 to 2016, Gay Group of Bahia (GGB) recorded one LGBT death every 16 hours in Brazil. Interestingly, in the same period, Brazilian foreign policy took a leading role in LGBT normative entrepreneurship at the UN, at the same time as a large number of domestic public policy proposals for the group during the FHC, Lula and Dilma governments were made. This article starts from the following research question: how did this process of mismatch between Brazil's foreign policy in defense of LGBT rights at the United Nations and the underachievement of the domestic public policies for the group take place? This misalignment paradoxically constituted an opportunity. Supported by the bibliographic review and the analysis of UN resolutions, reports and documents, we show that this normative entrepreneurship was a way out found by the Executive to lock in policies. From a pragmatic point of view, the political risks of defending the LGBT agenda in the international arena were relatively lower than facing the irreducibility of a deeply conservative Congress.

Lonely hearts: Tocqueville and Democracy.

Herb Karlfriedrich — 2023-12-07

Concerning the heart within the history of ideas, Alexis de Tocqueville is rather unknown - wrongfully. His theory of the democratic heart does not only deliver a privileged view on the pathologies of modern democracy, it also helps to decipher Tocqueville's own theory of democracy. In addition, Tocqueville's heart-reflections facilitate a better understanding of Individualism and Soft Despotism and they illuminate diagnoses and therapies of civic discomforts. Tocqueville's lonely hearts reflect the crisis of the modern world and - in a curious way - they also outline the ambivalent relationship between Tocqueville and democracy. To make it short: The importance of the lonely hearts can hardly be overestimated

The inter-American human rights system: creation and institutional development (1960-2010).

Bruno Boti Bernardi — 2023-12-07

The article evaluates the institutional development and the different historical stages of the inter-American human rights system in the period between the 1960s and the end of the 2000s, thus filling an important gap in the Brazilian academic literature. To this end, it adopts a bibliographical review methodology, and defends an approach that sees the inter-American system not from a doctrinal and legal point of view, but rather as a political-legal arena of disputes, with multiple and distinct actors and interests in conflict.

Inter-American Human Rights System and the United States: from a foreign affairs’ tool to domestic mechanism of change

Isabela Gerbelli Garbin Ramanzini — 2023-12-07

Over the last 60 years, the relation between the Inter-American Human Rights System and the United States has gone through ebbs and flows. During the last administration, Trump never let a word out about the Inter-American Human Rights System. Despite that, the Inter-American Human Rights System has been coming after thorny domestic issues in the United States. This article exams how the Inter-American Human Rights System found ground to promptly confront one of the most powerful countries following human rights violations. It also explores how, in reaction to that, there has been a growing interest among citizens, academics and civil society at large in rediscovering the Inter-American Human Rights System as an efficient tool to instill human rights change from within the United States.

Democratic Agonism, Humanity, Distinctive Law and Ethical Responsability.

Adahilton Dourado Júnior — 2023-12-07

This article deals with Law as a way to distinguish, to place under the State's tutelage, the subjectivities historically forgotten by institutionality. It is an attempt to attribute to Law an inclusive role from a hermeneutics specifically focused on the realization of human rights in the light of democratic agonism ideas of Chantal Mouffe and of humanity ideas of Hannah Arendt, in view of the state structure of abandonment that Giorgio Agamben speaks. The reflection made in dialogue with Gündogdu and Miroslav Milovic starts from the premise that Law, for this purpose, should refer not to a must-be, but to a let-be.

The Influence of the Memory of the 1964-1985 Dictatorship on Brazilian Democratic Politics

Clorrie Violet Yeomans — 2023-12-07

This paper discusses how the memory of the Brazilian dictatorship exerts both positive and negative influences on the democratic quality of post-transitional politics. Conservative politicians, such as Jair Bolsonaro, and their civilian supporters appropriate the military regime’s binary political rhetoric that demonised progressive, leftist forces and glorified authoritarian, right-wing forces in order to censor political participation and to strengthen the ongoing impunity of the Brazilian Armed Forces and the Military Police. However, these barriers to combatting impunity via the state have also inspired the innovation of grassroots social movements which offer an alternative view of the past, denouncing the dictatorship's authoritarian reality and instilling a culture of human and civil rights among Brazilians today. The case study of Brazil demonstrates how the memory of authoritarianism in South America can be a double-edged sword for post-transition democracy and human rights.

Symbolic jurisprudence: the unconstitutional state of affairs in relation to the Brazilian penitentiary system

Vanja Grujic — 2023-12-07

The declaration of the unconstitutional state of affairs (ECI) in relation to the Brazilian penitentiary system in ADPF 347 is a legal, political and social event that did not reveal the practical scope intended by the STF decision. Instead of having the catalytic role of a structural change that would allow the restoration of a situation of protection of fundamental rights, the ECI is a procedure whose strategy is to exclude the incarcerated population. To describe this strategy, this article uses the genealogical method specific to Foucault's theory of power. In order to illustrate how the ECI reveals more continuity in the treatment of the issue by the judiciary than jurisprudential inflection, ADPF 347 will be placed among other decisions taken by the STF in what was identified as its “penitentiary system agenda”. From this jurisprudential framework, we can demonstrate how the ECI generates new power relations within what Foucault calls governmentality. Foucault's reflections indicate that, although unintentionally, the ECI maintains the framework of forces responsible for the constitution's lack of normativity. By employing Neves’ theory of symbolic constitution, the article describes the ECI as symbolic jurisprudence that interprets the constitution in a restrictive and exclusionary way. Besides this negative consequence, employing both Neves’ and Foucault’s theories, as a part of its a positive effect, the ECI reveals the excluded situation of prisoners, as well as the possible resistance to the subjectivication mechanism resulting from governmentality.

The Argentine Supreme Court of Justice and the Equality before the Law in Crimes against Humanity

Daniel Gustavo Gorra — 2023-12-07

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively