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THE-PRINCIPLE-OF-HUMANITY-AND-THE-SAFEGUARD-OF-THE-HUMAN-PERSON.Pdf Antônio Augusto Cançado Trindade and César Barros Leal Coordinators THE PRINCIPLE OF HUMANITY AND THE SAFEGUARD OF THE HUMAN PERSON Fortaleza 2016 Apoio: Catalogação na Publicação Bibliotecária: Perpétua Socorro Tavares Guimarães C.R.B. 3 801/98 Th e principle of humanity and the safeguard of the human person / Coordenação de Antônio Augusto Cançado Trindade e César Barros Leal.- Fortaleza: Expressão Gráfi ca e Editora, 2016. 332 p. ISBN: 978-85-420-0884-5 1. Direitos Humanos 2. Princípios humanos I. Trindade, Antônio Augusto Cançado II. Leal, César Barros. III. Título CDD: 341 TABLE OF CONTENTS PREFACE.......................................................................................5 HUMANKIND AS SUBJECT OF INTERNATIONAL LAW Antônio Augusto Cançado Trindade ...............................................7 THE RESTORATIVE JUSTICE IN PRISON AND THE PRINCIPLE OF HUMANITY César Barros Leal .........................................................................25 VALUING OUR HUMANITY Christine M. Korsgaard ................................................................39 CHARITY AND HUMANITY IN THE PHILOSOPHY OF LANGUAGE Gareth FitzGerald ........................................................................65 THE PRINCIPLE OF HUMANITY IN PENAL LAW José Luis de la Cuesta ..................................................................79 UNPACKING THE PRINCIPLE OF HUMANITY: TENSIONS AND IMPLICATIONS Larissa Fast ................................................................................101 HUMANITY, NECESSITY AND THE RIGHTS OF SOLDIERS Larry May ..................................................................................129 ON THE LEGALITY OF DEVELOPMENT OF NUCLEAR WEAPONS Lipin Tien ..................................................................................177 THE PRINCIPLE OF HUMANITY IN CONFLICT Mark Avrum Gubrud .................................................................241 THE PRINCIPLE OF HUMANITY AND THE CONSTRUCTION OF A LEGAL DUTY TO REPAIR: FROM STATES TO INDIVIDUAL PERPETRATORS Miriam Cohen ...........................................................................257 HUMANITY OR JUSTICE? Stan van Hooft ...........................................................................287 THE PRINCIPLE OF HUMANITY STATED AND DEFENDED Ted Honderich ...........................................................................309 PREFACE Since 2012, the Brazilian Institute of Human Rights and the Inter-American Institute of Human Rights (through its Regional Office in Montevideo) have held in Fortaleza, Ceará, Brazil, the most important academic activity in the domain of human rights in South America, namely: the Brazilian interdisciplinary courses on human rights, lasting two weeks, with Brazilian and foreign professors, and about a hundred students and fifty observers from several states of Brazil and abroad. Every year, a centraltheme is elected to guide the magna conferences, lectures, panels, thematic workshops, and the case study that integrate the agenda of each event. If, in 2015, the Respect for Human Dignity was chosen, in 2016 the 5thCourse will focus on The Principle of Humanity and the Safeguard of the Human Person. Just like last year, we are giving the reader a collection on the theme proposed, in five languages (Portuguese, Spanish, French, English and Italian), bringing together articles from multinational experts invited to participate in one of the boldest cultural projects developed by both institutes. The texts of the five books show the scope of the principle of humanity, acclaimed by the Universal Declaration of Human Rights, and its use in the field of international humanitarian right, international refugee law, international human rights law, criminal law, enforcement of sentences, victimology, criminal policy, restorative justice, mediation, human trafficking for sexual exploitation, intercultural conflicts, chemical weapons, D emocratic State of Law, among others, that show the relevance, meaning, and universal character of this principle as old as the own Mankind, and which is not only a pillar of many branches of knowledge, either legal or not, reinvigorating the sense of humanism and Justice, but it is also associated with other values and principles such as dignity, tolerance, ethics, and mutual cooperation, to highlight that, above all, one has to pursue the respect for the human person, alpha and omega of our ongoing search for a more just and equitable world. In multiple sentences and votes, the Inter-American Court of Human Rights (object of analysis in the courses mentioned above, including simulation cases submitted to its consideration) has THE PRINCIPLE OF HUMANITY AND THE SAFEGUARD OF THE HUMAN PERSON 5 highlighted the relevance and extent of the principle of humanity, which shall preside over our actions and whose invocation is fundamental either in the interpretation of the rules, in the resolution of disputes, whether in the exercise of reflection on life, health, freedom, equality, non-discrimination, in the context of the vast territory of human relations, of interpersonal and intergroup differences, always paying attention to the limits and conditions of the application of the law, imposed by the priority observance of man, seen in his essentiality, regardless of color, race, origin, religion or sexual orientation. The choice of the humanity principle as a central theme of the 5th Course was due to the fact that there has been very little analysis of its concept and scope mainly in the Latin American continent, nevertheless it is considered by many as a meta-principle, a timely reference in the defense of human solidarity and cooperation among the states and their people as well as in facing all kinds of torture or cruel, inhumane or degrading treatment. The reader, before the mosaic of texts dealing with the principle of humanity under the most different perspectives, will certainly feel encouraged to revisit it in the legal texts, in the doctrine and jurisprudence, broadening the interest in his/her research and its use in the domains of law and other areas of human knowledge, which shall be reinforced in the presentations of the 5thBrazilian Interdisciplinary Course on Human Rights. In a world deeply marked by exclusion, injustice, belittlement of human rights, the principle of humanity rises in the full power of its symbolism, to challenge the generations of the present and future, who have the commitment and responsibility to apply it anywhere, under all circumstances, because, after all, according to the content of the Universal Declaration of Human Rights, “to ignore and despise the human rights has led to barbarous acts that have outraged the consciousness of Mankind; and the advent of a world in which human beings are free to speak and to believe, free from terror and misery, has been proclaimed as the highest inspiration of the human being.” Antônio Augusto Cançado Trindade and César Barros Leal La Hague/Fortaleza, July 14, 2016 6 THE PRINCIPLE OF HUMANITY AND THE SAFEGUARD OF THE HUMAN PERSON HUMANKIND AS SUBJECT OF INTERNATIONAL LAW Antônio Augusto Cançado Trindade Judge of the International Court of Justice; Former President of the Inter-American Court of Human Rights; Emeritus Professor of International Law of the University of Brasília, Brazil; Member of the Curatorium of the Hague Academy of International Law and of the Institut de Droit International. I. THE PERCEPTION AND AWARENESS OF COMMON AND SUPERIOR INTERESTS OF HUMANKIND AS SUCH It is not suggested here that, at the present stage of evolution of International Law, humankind is replacing States as a subject of International Law. What is here asserted is that States are no longer the sole subjects of International Law; they nowadays coexist, in that condition, with international organizations and individuals and groups of individuals; and, moreover, humankind as such has also emerged as a subject of International Law. As a result, humankind coexists with States, without replacing them; and States can no longer regard the pursuance of their own interests as the sole motivation for the shaping of International Law. In fact, the pursuance of State interests has an impact on the effectiveness of International Law; but the interests of each individual State cannot make abstraction of, or prevail upon, the pursuance of the fulfilment of the general and superior interests of the international community in matters of direct concern to this latter (such as, e.g., disarmament, human rights and environmental protection, eradication of poverty, among others)1. Experience shows that it is when such general interests are duly taken into account, and are made to prevail, by States as well as by other subjects of International Law, that this latter has progressed. It could hardly be denied that the advances of International Law in the last decades have been achieved when the general, superior interests of humankind have been properly acknowledged and given expression to (such as, e.g., in International Human Rights Law, in 1 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1068, 1083 and 1094-1095. THE PRINCIPLE OF HUMANITY AND THE SAFEGUARD OF THE HUMAN PERSON 7 International Environmental Law, in the Law of the Sea, in the Law of Outer Space). States themselves have contributed to those advances, whenever they have placed basic considerations of humanity and the general interests of the international community as a whole
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