Center for Studies and Training of the Argentine Judicial Federation
First of all, my thanks to OPINIO JURIS, FENAJUFE AND THE COORDINATOR of the Judicial Workers of the Southern Cone for having invited me to speak in this office on issues in which so many dreams and struggles of our peoples are intertwined.
AGAIN FREE TRADE.
The discipline of law can make a contribution against the colonialist pact called FTAA.
To do this, we must clear the tangle of propaganda, complicity, interests and pressures, but also of norms, which is woven to force us to continue on the path of dependency, the rule of brutal force and social injustice. It is about the rescue of the rules and basic principles of international law, subverted by the pacts resulting from the violence of the powerful.
As we move away from the post-world war, the Cold War, the atomic balance of power, the bipolar world and the heyday of the Non-Aligned Movement, it becomes clear that capitalism, and not just that of the superpower, has proposed to disrupt the entire international legal order that emerged in those historical stages. It should not surprise us if we remember that this order was built in that period of history where capitalism ran the risk of being superseded as a system of human organization. There is then an obvious antagonism between the capitalist vision and that normative plexus.
The most important mechanism used to achieve this ineffectiveness is the accumulation of imposed or consensual second-level rules and, as such, supposedly subordinate to the fundamental texts of the supranational system, but which destroy the regulations and principles that comprise it. Among those, the rules of international agreements that establish a floor of respect for human rights much lower than the required and non-negotiable resulting from the world legal order stand out for their subtle hypocrisy. Such is the case of the resolution of the 86th ILO Conference of June 1998 on "Fundamental Principles and Rights at Work and their Follow-up", in which only a small category of "fundamental rights" is surreptitiously assigned. handful, those related to freedom of association, collective bargaining, forced and child labor, and occupational discrimination, being that all human rights, including labor rights, are essential, due to their indivisible and universal condition, in accordance with international right.
The constant and prolonged use of that mechanism of normative insubordination sediments that legal scum on the bases of the primordial laws until they disappear from our daily consciousness, transforming them into museum pieces, object of cynicism and sarcasm even of the lawyers themselves. Thus, they will be formally discarded as soon as the powerful have an interest in erasing them, in the midst of our greatest indifference. Even the most despicable rulers dare to make fun of them, as was the case with the project voted on regarding the blockade of Cuba, at the initiative of Battle and others of his ilk.
In Argentina, not even paying today, we would get a worker with a job to agree to judicially demand his minimum living and mobile wage, which is guaranteed by the National Constitution.
The FTAA is but another step in that process of dismantling the core international legal order, with which the United States intends to consummate the colonization of the rest of America and position itself even better to project itself towards world domination. So, the FTAA, like so many other initiatives of the owners of the World, is a spawn of the crudest international illegality, a statement that I propose to support, starting with a brief reminder of the prevailing supranational regulations, so little brought up when talking about the AUK.
THE LEGALITY ATTACKED.
I place the cornerstone of international legality in the Charter of the United Nations, where we see, from what would be its preamble, that "... the peoples of the United Nations ..." declare themselves "determined ... to reaffirm faith in the fundamental rights of man ... to promote social progress and raise living standards ..." , as purposes of that world organization. And in its articles are defined as instrumental purposes the promotion of relations between nations based on the "equal rights ... and the self-determination of peoples" (article 2), as well as cooperation to solve the ".. international problems of an economic, social, cultural or humanitarian nature, and in the development and encouragement of respect for human rights and fundamental freedoms of all .." (Article 3), and the General Assembly is given an express mandate to seek such international cooperation in order to make "effective" those rights and freedoms of all (article 13-b). The Charter is even more precise regarding how to make effective that international cooperation based on respect for equal rights and the self-determination of peoples, providing that they shall be promoted "Higher standards of living, permanent work for all and conditions of progress and economic and social development", with respect and effectiveness of those rights and freedoms. (article 56-a and -b). In addition, it establishes extensive and careful regulations to put these principles and objectives into action. (articles 56 to 72).
I could add the quotation of other preliminary international legal documents, of inexcusable observance in international treaties, but I am going directly to recall specific norms of the Charter of Economic Rights and Duties of States (UN General Assembly Resolution 3281 (XXIX) , such as those of articles 7, 8, 9, 10, 11, 13 and 14 which, in summary, provide that international cooperation and trade must contain positive discrimination rules in favor of countries such as Latin America, to close the technological gap and promote trade with a view to improving their development and the well-being and standard of living of their peoples.
There is a place of decisive primacy for the D.U.D.H., in whose Preamble it is stated that "... freedom, justice and peace in the world are based on the recognition ... of equal and inalienable rights ..." of human beings, as well as the commitment to promote social progress, the elevation of the standard of living and the universal and effective respect of such rights. From the opening paragraph it is imposed on the members of the U.N. the observance of principle of progressivity in the recognition and effective and universal application of human rights, which will then list, among them, the well-known texts of articles 22 to 26, which establish labor rights, social security, health and education, that they are the first with which the pacts promoted by the great powers collide. Article 28 deserves special mention, which establishes the right of everyone to establish "... of a social and international order in which the rights and freedoms proclaimed in this Declaration become fully effective."
The two international covenants on human rights, at the economic, social, cultural, civil and political levels, express principles and norms that oblige the community of states and each of them to abide by, promote, guarantee and defend human rights as an objective. supreme, whether it is the individual, the collective and the so-called third generation, connoted by their universality and their indivisibility. And operational forms are established for this purpose, fundamentally the "... international cooperation based on the principle of reciprocal benefit ..." that does not deprive the peoples of their own means of subsistence or restrict the free disposal of their wealth and natural resources.
In our continent there are also many regional norms that reproduce and even strengthen the supremacy of human rights over all other international norms. "The American Declaration of the Rights and Duties of Man", places them as the main purpose of all legal and political institutions and, together with the Pact of San José de Costa Rica and its Additional Protocol, it ratifies point by point that in America, the territory of the FTAA, the human rights of individuals, peoples and nations are intangible, non-negotiable, irreplaceable and Insubordinate to any consideration, pressure or agreement that entails their impairment. By the way, also in the rest of the world.
Within our countries we find the same legal panorama, even with express norms that enshrine the subordination of interest agreements to human rights treaties, as occurs in the Argentine Constitution.
THE ILLEGAL WEED.
Consequently, any national or international act or agreement that generates misery or poverty, hunger, malnutrition, preventable diseases and deaths, slavery, illiteracy, school dropouts, ignorance, cultural ban, unemployment, falling wages is incompatible with international law. real or below the vital minimum; job insecurity that affects decent working conditions or generates emigration and uprooting under occupational or economic pressure; maintain or widen the unfair distribution of wealth, scientific, technological, industrial and standard of living gaps between peoples, unequally benefit one nation or its citizens, to the detriment of another and its inhabitants, by transfer or any form of dominance on natural, economic or financial resources and human factors; unequally affect the sovereignty of countries and the self-determination of peoples, promote colonialism and imperialism and do not promote the effectiveness of all human rights.
Such acts or agreements and many others that cause similar consequences, are not only criticized for being immoral, for being unsupportive, for being politically inconvenient, incongruous, from an ideological, partisan, union, religious, agnostic or atheist point of view, or for economic reasons. . These are unlawful conducts, which no ruler can assume without falling into legal responsibilities of civil and even criminal reproach, and which as such generate the right to bring the case to justice, in search of sanction, but also of annulment or reformulation. It is at this point where, in my opinion, opponents of the FTAA falter, especially those of us who operate the law, by not taking full advantage of the wealth of the legal order that should prevail in the world.
IT IS BETTER TO PREVENT THAN TO CURE THE ULCER.
When a secondary law or a sentence violates a superior norm, they do not produce its repeal, but at most its de facto deactivation. That injury does not heal; it ulcerates and under this unstable and abnormal surface the healthy tissue remains, waiting for the cure, for its prevalence to be recognized. That would be, graphically, the legal situation in which we find ourselves with respect to the copious accumulation of violations to the legal order of nations that have already been committed. It would be a beautiful service for Humanity if we men of law could deepen the work of denouncing and challenging such abuses and those that are projected, by rescuing higher norms and principles.
The FTAA project will be the object of vivisection in this Forum, by numerous speakers who will make it clear that it will produce these disastrous effects on our Latin American nations. Then, if not before, men of law will be aggravated by the concern of witnessing the practical and, perhaps, definitive demolition of the entire basic legal structure of human coexistence, in which we believe with rational and overcoming faith. It is clear that we will not transfer our share of the struggle to others. We will not sit around and wait for workers or anti-globalization fighters or environmentalists or artists or some overvoted politician to be able to defeat the FTAA, because we can continue to join that struggle based on our knowledge and work experiences.
APPROACH TO THE PROPOSALS.
In my opinion, several courses of action are within our reach:
-Constant complaint in all activities of social organizations against the FTAA and similar agreements for the flagrant violation of basic, substantial and formal national and international legality.
- Incorporate into the debate the indisputable argument that the FTAA negotiation cannot continue in the prevailing political, economic, financial, military and social circumstances, which generate vice of the will by coercion on the Latin American countries, for the benefit of the hegemonic party, which deprives us of the negotiating freedom typical of sovereign states and self-determined peoples, with legal equality. I am referring to external debt, blockades and reprisals, meddling in internal affairs, military presence, disinformation and intelligence operations, pressure from multinationals and banks, and the abysmal difference in economic size. Demand the establishment of rules and measures prior to negotiation that deactivate or reduce the incidence of such coercive factors to a tolerable minimum.
- Demand from our respective governments that, with international law standards at stake, with constitutional hierarchy in our countries, and treaties that, such as the FTAA, would prevail over common law, establish a procedure for consulting the texts and agendas under consideration , prior to the meetings for the conformation of such agreements, open to social organizations, including all those that bring together lawyers, judges, workers and law faculties so that they are issued on the compatibility of the clauses in consideration and its foreseeable economic, social, environmental and legal results, with respect to the basic norms of international law.
-To form and make public, for the purposes of the pertinent actions, the probative evidence that this new colonial pact violates and will violate human rights of individuals, peoples and nations. In this task, interdisciplinary cooperation with economists and other social scientists capable of unraveling the dire consequences of the pact, which are already being denounced, would be essential.
- To maintain that in the FTAA and similar pacts, governments act with regulated and, therefore, justiciable powers.
- Claim whenever possible the supremacy of human rights covenants with respect to all other treaties. In our country, an express rule prevents Congress from approving integration treaties that do not respect reciprocity and equality, democratic order and human rights (art. 75 inc. 24 of the National Constitution), which implies that the Internal judicial, preventive or reparatory means, to prevent the signing of said treaties or to have them deactivated, as, for example, should be happening with the World Trade Organization.
- As a consequence of the foregoing, vindicate the right of the victims to the national jurisdiction of each of our countries to judge about these violations, due to their nature as non-extendable, inalienable and insubordinate to resolving mechanisms of commercial disputes.
- Extend this claim to the international mechanisms for the complaint and resolution of human rights violations, provided for in the treaties on the matter, over any commercial agreement.
- Likewise, we must produce and support doctrines that rescue as judicially enforceable human rights to national sovereignty, to the self-determination of the peoples, to mutually beneficial cooperation aimed at closing internal and external gaps in terms of wealth, income distribution, education, health, science and technology, as the basis for all treaties, under penalty of nullity supported by article 53 of the Vienna Convention on the Law of Treaties.
Likewise, vindicate doctrines that rescue the right of nations and peoples to withdraw or achieve the termination or total or partial suspension of trade agreements, with or without the consent of the other parties, when current or imminent results are verified or credible. that violate human rights or cause serious harm to their peoples, even if the changes in circumstances provided for in Article 62 of said Convention do not mediate. This would imply the prohibition of all forms of retaliation, boycott, blockade, sanctions, discriminatory treatment or the impossibility of re-entering the treaty.
- We should analyze the same criterion in order to claim for workers, professionals and other popular sectors the right to demand, active legitimation before the bodies settling disputes and before the courts, regarding all the damaging actions already mentioned, as well as for obstruct claims and lawsuits filed by companies that demand the application of agreements that violate human rights. This is an obvious consequence of the overcoming of the principle that those rights correspond only to the states, as subjects of international law, more evident from the moment that companies are taking action to request reparations and other administrative or judicial decisions, as a result of the non-observance of the treaties.
-Analyze the possibility of carrying out a Public Trial to the FTAA, perhaps, on a date that coincides with the next meeting of the Heads of State and Government.
All these steps would place us on the offensive to install or strengthen these approaches in the definitions in popular entities, especially in those representing workers and lawyers in the region, as well as in academic circles.
THE ROLE OF JUSTICE.
I have reserved the last part for the judicial powers of Latin America that, in general, do not seem inclined to assume their responsibility to avoid and combat the lawlessness in which we survive. My position is based on the objective evidence that the massive and even savage violation of human rights of all kinds that the overwhelming majority of Latin Americans suffer has not had the proper judicial response. I know active judges who fight in their decisions and in their academic, corporate and citizen participation against the monstrous legal deformation that I have tried to outline. I know that they cannot be blamed for detachment from the ideology of human rights that has become basic international law.
I know many judges who fulfill their function without moral flaw, but who are locked in their world of neutrality, in the preserve of their specialty, although they see that around them the law is blurred and everything falls. You will keep in mind what happens to us Argentines with the Supreme Court and other shameful courts. From Brazil, I have in mind an illustrative and critical work by Carlos Alberto Colombo, "Os julgamentos do Supremo Tribunal Federal", published in "Democracia & Mundo do Trabalho", page 119, on the tendency of the Supreme Federal Court in favor of certain interests , expressed in rulings that violate the Constitution and political legitimacy, which makes me doubt the predisposition of the court to put an end to the abuses that the FTAA would mean.
What can we and should we demand of our judicial powers? That they assume with force and in all its dimensions the portion of sovereignty that corresponds to them in their capacity as custodian of human rights and basic national and international legality.
Faced with the foreseeable continuity of judicial desertion with respect to these duties, we are faced with an imperative need, which will continue even if we defeat the FTAA, because the imperial designs will manifest themselves again and again. We have to build the state of social conscience and the mechanisms that allow the people to gravitate strongly in the selection of judges, and that grant them popular legitimacy that strengthens them and commits them to society and to fundamental laws.
In Argentina, the atrocious lack of justice in which we live has moved its workers from the FJA, together with the CTA, to carry out a work of almost a decade of debates, public criticism of the neoliberal judicial reform plans, proposals and of experiences of participation in the selection of judges. At present, together with other organizations and personalities of the profession, of the judiciary and human rights defenders, we are establishing a coordination that has as its objective a new justice, integrated only by judges legitimized by true democracy, who take charge in fullness of his inalienable role to defend his country, his people and the validity of human rights.
Without justice of that profile, colonial pacts will be irreversible law and everything will be decided, including sentences, in the centers of world power.