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The Pro Homine Framework and the Roman Law Spirit of International Human Rights Law

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The Pro Homine Framework and the Roman Law Spirit of International Human Rights Law THE PRO HOMINE FRAMEWORK AND THE ROMAN LAW SPIRIT OF INTERNATIONAL HUMAN RIGHTS LAW by Dilton Rocha Ferraz Ribeiro A thesis submitted to the Faculty of Law In conformity with the requirements for the degree of Doctor of Philosophy Queen’s University Kingston, Ontario, Canada (October, 2015) Copyright ©Dilton Rocha Ferraz Ribeiro, 2015 Abstract The Romans were the first civilization that envisaged an international legal system rooted in the human person and for all humankind. The innovation of this concept was precisely its universality centered on the human conscience, which, different from past approaches to international law, was not theoretically limited to a group of people or a religion. Although still deprived of universal de facto application, the Roman concept of the law of nations or jus gentium guided, to a greater or lesser extent, all subsequent writings on the subject until its complete limitation to a law between states and its current revival within the theoretical framework of international human rights law. The general framework of human rights is the Roman notion that international law flows from an universal reason of all humankind and is equally observed by all peoples and used as law by all peoples or nations. It is this definition, looked through the perspective of modern times, which forms the pro homine framework. Both the European and Inter-American human rights courts unconsciously follow the precepts of the Roman jus gentium. They contribute to the reaffirmation that international human rights is indeed centered on the human person as the end and source of law. This individual-centric and Roman- based conception guide the transformation, application and interpretation of international human rights law setting the basic parameters of individuals as bearers of rights, duties, capacity and interests at the international level. Accordingly, declarations, treaties and courts merge traditional elements of international law (the language of declarations and treaties) with the core elements of the Roman law of nations (universality, the human person as the source and end of law, international law setting guidelines to change and adapt domestic law and the importance of written instruments and magistrates). Adapting to different historical, legal, economical, social and political contexts, international human rights law is in theory and method part of a truly corpus juris gentium romani (body of the Roman law of nations). ii Acknowledgements My time at Queen’s University was so significant and had such an impact on my life that I cannot express it in words. It excelled my expectations. The challenging of completing a doctorate program is nonetheless enormous. I could not have done it without the assistance, companionship, guidance and friendship of a number of special people. First, I would like to thank my supervisor, Professor Sharryn Aiken. I was lucky to have a great supervisor who helped me and always believed I could accomplish all my objectives. She allowed me to be a free thinker and develop all my potential. I also had indispensible assistance, guidance and help from Professors Daryl Robinson, Mark Walters, Joshua Karton, Leslie Green and Stan Corbett. They were constantly part of my life and helped me in so many ways that thank each and every one of them from the bottom of my heart. I also want to thank my friends and colleagues from Queen’s law who became friends for a lifetime, especially Saki, Adelina, Kerri, Tom, Jie, Manoj, Gillian, Chris and Tobi. I would also like to thank Phyllis who is always so helpful and friendly. Specially, I would like to thank Professor Valerio Mazzuoli who is such an inspiration and was an indispensible source of knowledge and guidance. Kingston would not be such a special place if I did not have so many friends here. I would like to thank Ricardo, Carolina, Stuart, Lili, Tanya, Ciera and Hyo. I would also like to thank my family, Avany, Danniel and my father, Eliziario, who passed away during my doctoral studies but is always in my thoughts. I would like to thank my grandmother, Ana Luiza, who is such an indelible presence in my life. I would like to thank my friends and family from Brazil. Last but not least I would like to thank my defense committee for agreeing to me part of my journey and for all the assistance. Thank you all! iii Statement of Originality I hereby certify that all of the work described within this thesis is the original work of the author. Any published (or unpublished) ideas and/or techniques from the work of others are fully acknowledged in accordance with the standard referencing practices. (Dilton Rocha Ferraz Ribeiro) (October, 2015) iv Table of Contents Abstract ............................................................................................................................................ ii Acknowledgements ......................................................................................................................... iii Statement of Originality .................................................................................................................. iv Chapter 1 Introduction ................................................................................................................... 01 1.1. Contribution to the Science of Law…………………………………………………11 1.2. Background Concepts……………………………………………………………….16 1.3. Methodology………………………………………………………………………...22 Chapter 2 The Human Person and the History of Modern International Human Rights Law until Before the Second War .................................................................................................................. 24 2.1. Brief Comments on the Emergence of a Human Rights System ............................... 25 2.2. Modern International Human Rights before the Second World War ………………33 Chapter 3 The Post-Second World War Discourse: The Individual-Based Framework of International Human Rights ........................................................................................................... 51 3.1. International Human Rights Law After the Second World War…………………….53 3.1.1. The Universal Declaration of Human Rights…………………………….59 3.1.2. The American Declaration of the Rights and Duties of Man…………….70 3.1.3 The U.N. Global Covenants……………………………………………….76 Chapter 4 The Individual Legal Personality .................................................................................. 89 4.1. A Voluntarist International Law and its Object Theory: From Doctrinal Development to Jurisprudential Denial………………………………………………………………………….90 4.2. The Voluntarist International Law…………………………………………………..98 4.3. The Limitation of the Object Theory by International Courts……………………..107 4.4. The Theoretical Abandonment of the Object Theory……………………………...127 Chapter 5 The Roman Jus Gentium and International Human Rights Law: The Rescue of the Human Person as the End and Source of the Law of Nations ..................................................... 145 5.1. Jus Gentium and the Establishment of International Law…………………………147 5.2. The Revival of the Roman Law of Nations………………………………………..162 5.3. The International Law Theories and the Human Person: From General Acceptance to a Return to a Roman Law of Nations……………………………………………………………183 5.4. The Roman Concept of Jus Gentium and Jus Naturale……………………………209 v 5.5. The Roman Law of Nations and the Modern International Law of Human Rights.222 Chapter 6 The Roman Jus Gentium and International Human Rights Law: The European Court and the Inter-American Court Reinforcing International Law’s Roman Elements ..................... 243 6.1. The Spirit of the Roman Jus Gentium……………………………………………...245 6.2. The Pro Homine Framework and the European Court of Human Rights………….248 6.3. The Pro Homine Framework and the Inter-American Court of Human Rights.......269 6.4. The Roman Law of Nations of International Human Rights Law: Brief Considerations of a New\Old System of International Law in a Global World………………...293 Chapter 7 Conclusion ................................................................................................................... 315 Bibliography ................................................................................................................................. 324 vi Chapter 1 Introduction This thesis seeks to contextualize the discourse and underpinnings of international human rights law based on international law’s concept, the decisions of international courts and the phraseology of treaties and declarations. It places the phraseology enshrined in human rights treaties and declarations and the reasoning of international courts in human rights cases within a theoretical framework connecting them with the concept of the law of nations established by the Roman Corpus Juris Civilis. Accordingly, this thesis addresses two interconnected points establishing a contextual framework that explains the current definition and application of international human rights law. First, the phraseology enshrined in human rights declarations and treaties is human-centered and dates back to the Roman concept of the law of nations. The definition of the law of nations, focusing on the human person as a source and end of law, established by Roman jurists and later codified in the Corpus Juris Civilis is part of the discourse of modern international human rights. The post-Second World War paradigm focused on human rights is not a new framework underpinning international law. Conversely, the current international human rights
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