Resumen de Human Rights Defenders: El derecho a promover y proteger los derechos humanos
Over the last decades, Human Rights protection has evolved due to a twofold process: the internationalization of Human Rights protection and the individualization of International Law. These two phenomena have changed the paradigm of the sovereign state in International Law. Following the codification of Human Rights and the development of an international system of guarantees, in 1998 three elements moved the individual from the edges to the cornerstone of International Law: the adoption of the Rome Statute, creating an International Criminal Court to try individuals, a new European Court of Human Rights as a unique jurisdictional international guarantee of Human Rights where an individual can directly lodge an application, and the adoption of the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. There has been in this process a synergy between the internationalization of Human Rights protection and the individualization of International law. This synergy, as Carrillo Salcedo2811 and Gómez Sanchez2812 point out, stems from the acknowledgement of human dignity, also recognized in the Preamble of the United Nations Charter. Gavara also considers the principle of human dignity as an inherent human being quality leading to the concept of non-instrumentalisation, present in the German constitutional formulation2813. This interpretation of human dignity prevents the instrumentalisation or materialization of individuals, because the human being is an end in itself2814. The State is still the axis of International Law and the first responsible for human rights protection. But Human Rights Law has changed the nature of International Law, and nowadays the individual is not a mere object of International Law, but almost a subject2815. Gardbaum goes further and considers that perhaps the main change in this field is that individuals have become subjects of contemporary International Law in addition to states: “That is, individuals and no longer only states have rights and duties under international law". Furthermore, as Dupuy points out, state sovereignty has evolved so that today it is not only an end but a medium2817. This change in the philosophy of International Law also changed the internal constitutional logic of state organization. According to Dupuy, the relationship between those governing and those being governed has evolved towards the respect of ruled rights not only as citizens but also as human beings2818. Consequently, the change in International Human Rights Law likewise produced a change in Constitutional Law. This is also something present in Ferrajoli’s constitutional democracy theory. According to Ferrajoli, there are four fundamental theses on constitutional theory. Firstly, there is an essential difference between fundamental rights, with universal enjoyment, and patrimonial rights, which exclude the enjoyment of others; secondly, equality in fundamental rights is the basis of substantial democracy, not just formal democracy; thirdly, and here is the axis of the question, fundamental rights have evolved towards a supranational dimension, where public bodies do not have internals limits only but also external limits. Finally, there is a change in fundamental rights and their guarantees2819. According to Ferrajoli’s thesis, it is necessary to distinguish between primary guarantees and secondary guarantees. Primary guarantees of fundamental rights set up a system of obligations to do something, while secondary guarantees set up a system of prohibition of not doing something2820. Then, it is necessary to respect both guarantees to achieve the full respect for fundamental rights2821. Balaguer Callejón explains that, nowadays, the idea of continuity between state and constitution is broken by globalization. Decisions are taken outside the public space of a state. There is a rupture between the public space of decision and the public space of application in the case of international decisions applied by states. However, an idea of global constitution or global constitutional law is almost impossible. Nevertheless this author considers the possibility of supranational constitutional law spaces in regional areas of protection2822. Rosenfeld also considers that the initial distinction between a treaty and a constitution, in the sense that the former regulates external relations among sovereigns and the latter regulates internal relations, has become complex2823. Some treaties, such as the European Convention of Human Rights, involve an internal dimension of fundamental rights2824. However, Rosenfeld also points out the problem of constitutional identity and demos in a supranational or even international movement of constitutionalization2825. This leads, as Freixes points out, to a conception of fundamental rights protection in a multilevel legal framework2826. Globalization has reinforced International Law, bilateral and multilateral, European integration, and it has also resulted in processes of reallocating competences in infra-state bodies. Consequently, as Freixes indicates, when studying policies having an impact on citizens, it is necessary to consider not only classical legal frameworks of nation-state. Nowadays, it is necessary to bear in mind the other legal levels, depending on the international and regional dimensions of the issue, and also on the legal integration resulting from these processes2827. Theoretically and according to Freixes, it is necessary to point out the trend to consider that all the main rules regulating these relationships are fulfilling a constitutional function, even though they are not a formal constitution2828. From this perspective, multilevel constitutionalism leads also to an analysis of connections between legal systems that cannot be forgotten. For instance, as indicated by Freixes, the European Union Treaty refers to the Geneva Refugee Convention for the determination of their rights2829. This connection, as Marrani indicates, is also present in a doubled movement moving from transnational and international rights to national ones. This movement is explicit notably with the constitutionalisation of environmental rights through the enshrinement of the Charter for the Environment adopted in 2004 by the French National Assembly in the Constitution of the French Fifth Republic in 20052830. To sum up, this leads to a legal debate, as Gómez Sánchez states, where there is a divergence from the state monopoly as the unique constitutional space2831. In this multilevel legal framework, there are international and supranational organizations as sources of law, but also individuals as subjects of rights and duties, not mere objects of International Law. This change in the notion of individual in International Law also concerns a functional constitutional dimension of contemporary International Law of Human Rights. The adoption in 1998 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms by the United Nations General Assembly contains a change in the paradigm of the individual in International Law. This declaration is abbreviated usually as “The Declaration on Human Rights Defenders”(DHRD). The abbreviation also refers to the key element on this Declaration; the individual is not solely an object of protection for Human Rights Law, but also a subject of protection and promotion of Human Rights. Consequently, the legal framework of this Declaration shows this trend of individualization of International Law, as well as the proliferation of new sources of guarantee of rights in a multilevel legal framework of a global world. As indicated by Rovira Viñas, nowadays, the main guarantees of the rule of law, political pluralism and division of powers remain insufficient due to the globalization, because there is a crisis regarding the efficiency of the traditional mechanisms of fundamental rights guarantees.
