By Ashley Collins
Flávia Piovesan is a Commissioner for the Inter-American Commission on Human Rights and a professor of Constitutional Law and Human Rights at the Pontifical Catholic University of São Paulo (PUC-SP). She was recently named a Visiting Scholar at the David Rockefeller Center for Latin American Studies (DRLCAS) at Harvard during the 2018-19 academic year. Piovesan’s research focuses on the effectiveness of the Inter-American system in promoting human rights.
Congratulations on being named a DRCLAS Visiting Scholar. As far as your research is concerned, what do you hope this new position will allow you to achieve moving forward?
I think it will be an extraordinary opportunity. I can contribute by sharing all of my experience with human rights – not just in Brazil, but also in the region – and I can take a lot from Harvard as well, in terms of expertise, research, and exchange with faculty and students.
The topic of my research is the implementation, effectiveness, and impact of the Inter-American Commission in Latin America. I am honored to be part of the Commission, and I am a believer in the Inter-American system. I think the system saves lives and makes a huge contribution to the enforcement of human rights, democracy, and rule of law in the region. My focus would be on how to improve the enforcement of the decisions made by the Commission. First, from a Latin American perspective, what are the mechanisms and initiatives concerning the implementation of international standards, and what are the successes and failures? Second, looking at the Inter-American system, what are the strategies and mechanisms concerning the implementation of the decisions of the Commission – what are the challenges, prospects, and factors that can contribute to the complex process of implementation? Finally, what would be the proposals for strengthening the level of implementation of the decisions of the Commission, especially to increase its impact in fomenting social change in local orders?
After the most recent evaluation of Brazil’s human rights situation through the UN’s Universal Periodic Review process, many countries made recommendations regarding security and police violence in the country. Especially given the recent military intervention and public security challenges in Rio de Janeiro, what do you believe needs to be done for Brazil to make progress on these recommendations?
As a member of the Commission and as a Brazilian, I cannot comment on Brazilian topics, but I will react in broad terms. I think we have a problem here. I do believe that it is necessary to build a dialogue between human rights and security. The right to security should be seen as a human right, meaning that we have to reframe security from the human rights perspective. Militarization is a challenge not only in Brazil, but in the region as a whole.
Looking at our elections here in Brazil, for a long time – since democratization – we hadn’t had a candidate with a military background, and now we do. What I can see not just looking at Brazil, but looking at the region – and it’s something that is of major concern – is that militarization also involves the active presence and participation of the military in the legislative branch and the executive branch. I think there is this movement now. Additionally, when the military are involved with security, we have a very delicate issue regarding the use of force because the mentality that guides the military force is totally different from the concept of security that we believe should be reframed from a human rights perspective. How to deal with the use of force is a key question, as is all of the regime based on discipline, hierarchy, and seeing the “other” as an enemy, like in a war. This kind of ideology, I think, is not compatible with the rule of law. It is not compatible in my opinion with our constitutional order. There is a deviation from the traditional role that the military plays.
What are some positive developments in the promotion of human rights in Brazil specifically and in Latin America as a whole? What are the main areas in which progress has been achieved?
As I always emphasize, I think the history of human rights is made up of shadows and light. Sometimes we go further, sometimes we have backlash, but this history has a common ground that is the struggle: social action for the protection of human dignity and the reduction of human suffering.
In the field of protection of gender identity, the Inter-American Court issued a very important advisory which was published this year, guaranteeing gender identity rights, as well as the right to marriage for same-sex couples. In Brazil, that advisory opinion had a very important impact on our supreme court. In March, the Brazilian supreme court unanimously understood that our constitution protects gender identity, and all of the argument was based on the advisory opinion of the Inter-American Court. Furthermore, the constitutional court of Trinidad and Tobago issued a key decision months ago, overturning the country’s ban on same-sex intimacy. This is significant because among 35 countries in the Latin American region, 11 still criminalize sexual diversity.
I think we can see important movements. For example, in terms of what happened in the United States recently – in relation to the cruel violation of the rights of immigrant children who are separated from their families – I think that all of the voices of the UN, the Inter-American Commission, some governors, civil society, media, the OAS, states, and even American Airlines were important. We had a kind of name and shame policy which really made a difference, so this is something to learn from.
I think the moment is really challenging. In the Latin American region, I would identify three structural challenges. We are in the most unequal region in the world. We are in the most violent region in the world. And we are also facing challenges concerning the consolidation of the rule of law and democratic institutions.
In addition to those structural challenges, we also have emerging challenges. Militarization, as I mentioned, is one. Second, I would say that the unilateralist narrative – based on sovereignty, based on nationalism, “America First,” or even countries that are more resistant to apply Inter-American standards – is another one. The third is that – and of course, civil society is never monolithic – now we have the vocalization and the empowerment of very conservative groups. Those are the three new components that I would say emerged and can be added to the more structural issues. We are facing a very tough moment; it is delicate and challenging. That is why the world needs the protection of human rights more and more.
What is the role of the Inter-American Commission on Human Rights in promoting human rights in the region? What are the principal limitations faced by this entity?
Our mandate, according to the American Convention, is to protect and promote human rights in the region. We have a mandate to adopt precautionary measures in the case of urgent, serious human rights violations and irreparable damages, so we do not stop. We deal with suffering every day. It is highly intense, especially now with the situations of Venezuela and Nicaragua, which are hurting, in terms of a systematic and very serious pattern of human rights violations. We have a number of measures in favor of the victims in Nicaragua; almost 200 precautionary measures were taken in the last two weeks. We are receiving requests from students, from human rights defenders, and from religious leaders to protect them because they suffer threats to their lives. So, the case system is a really important tool.
Another example would be the Maria da Penha law – against domestic violence – in Brazil. This law is a result of strategic litigation before the system. It was fascinating because at that time, the Center for Justice and International Law, CLADEM – which is the Latin American Committee for the Defense of Women’s Rights – and Maria da Penha, we submitted the case before the Commission. And the Commission, at the end of the process, condemned Brazil because of the lack of legislation and public policies concerning violence against women. Brazil applied the decision, adopting a law – the so-called Maria da Penha law – creating public policies and capacity-building programs for public agents in order to prevent and eradicate violence against women. So, it’s interesting to see the impact of our mandate.
At the end of the day, our mandate based on the convention is to protect and promote human rights in the region. I am very honored to be part of the system because as I mentioned, I am a believer in the system. And as you mentioned in your question, of course we have potentialities, but also limitations. It’s very important to intensify the dialogue between the Commission and the states. In my research, I found that we had a very high level of compliance when we had friendly settlements among the victims, states, and us. When we have collectively built up a solution, the parties feel much more involved with that process, and the level of compliance by the states is around 90 percent. It’s very high. So I do believe that the future of the Inter-American system is conditioned by the level of compliance of their decisions into the domestic order. I do believe we have to intensify this dialogue.
Do you have any concluding thoughts to share? What do you believe will be the main challenges to promoting and protecting human rights in the Americas in the future?
As I mentioned, human rights are not a given. They are building up all the time. We have a very dynamic, open, complex history of this process – of the consolidation of human rights. Now, we have new agendas.
For example, business and human rights is worth mentioning. It’s a new agenda for the Commission. In our public hearings in the Dominican Republic, as well as in Colombia, there were two sessions dedicated to business and human rights. How to create Inter-American standards was the subject of the first hearing in Colombia. The second public hearing was about how to intensify the due diligence approach to the transnational companies. If you take the biggest economies in the world – the 100 biggest economies in the world – around 70 are transnational companies and 30 are nation-states. So, we have to identify the role of the state, the role of the private actor, and how to empower victims to seek the proper remedies when their rights are violated. At the UN, there are the guiding principles of 2011 – respect, protect, and remedy – but we would like to create, based on the language of the global system, Inter-American standards that could reflect our region.
The other topic which is really challenging is the Internet and human rights – how to deal with digital rights, digital war. How to guarantee that rights online could have the same level of protection as human rights offline. There is a resolution about that, for the same level of protection to be given online and offline. Those are challenges we are facing now.
We have new horizons. We have the 2030 agenda of Sustainable Development Goals. Right to the environment is another significant topic. Today, I received a very important, emblematic decision taken by the Inter-American Court dealing with the right to health for an older person. That is another new focus. How to deal with aging from a human rights perspective – guaranteeing dignity, autonomy, participation, and inclusion and combatting discrimination based on age.
That is what is fascinating about our work. We have the American Convention on Human Rights from 1969 as a living instrument, and we have to reframe the convention in light of contemporary values and new facts. Decisions concerning gender identity rights, for example, are based on a broad interpretation, and a very proper interpretation, of the clause of equality and nondiscrimination.
There is one other thing that I would like to mention as well because it’s a challenge that I think is important, and it is the holistic view of human rights, uniting civil and political rights as well as economic, social, and cultural rights. We defend the indivisibility of human rights – this holistic, integral approach – plus the intersectional approach. A key dimension of this involves the rights of the most vulnerable, such as migrants, African descendants, indigenous people, women, children, detainees, and LGBTI persons. This approach, this integral and holistic approach to human rights, must also take into account intersectionality, meaning gender, race, ethnicity, sexual diversity. All of these aspects are mixed in the way human rights are exercised or are violated, so this is something we are always taking into account.
I am absolutely passionate about human rights. At the end of the day, the language of human rights, as simple as it is, is based on this empathy logic: seeing the other as a human being – not less, not more – who deserves respect and consideration. That, I would say, is the mantra of human rights. It is important to avoid all kinds of doctrines of superiority based on differences. We live in a very tough global arena. We have more and more of this growing nationalistic approach against the other, against the non-national. You see this in Europe, you see this in the Latin American region, and I think we have to enforce our counter-narrative. Especially this year, which is really symbolic, since we have the anniversary of the Universal Declaration of Human Rights and the American Declaration of Human Rights, which was adopted even before the Universal Declaration in 1948. An anniversary is a symbolic moment to have this deep thought about the present, about the past, and about the future that we believe in.
This interview has been edited for length and clarity.