Master of Laws - Human Rights

JoséAnastáciodeSousaAguiar
José Anastácio de Sousa AguiarJosé Anastácio de Sousa Aguiar
London Metropolitan UniversityLondon Metropolitan University
Master Of Laws:Master Of Laws:
Human rightsHuman rights
MasterOfLaws:MasterOfLaws:HumanrightsHumanrights
O
tema Direitos Humanos, em especial o que se refere a sua efetiva implementação
no âmbito internacional, é assunto recente. Foi na Declaração Universal dos
Direitos Humanos, aprovada pela Assembléia Geral das Nações Unidas em 10
de dezembro de 1948, que efetivamente o seu ideário tomou forma e começou a existir.
A sua aprovação, bem como a própria criação da ONU, foi reflexo direto da II Guerra
Mundial. Os países finalmente se convenceram que o mundo não poderia ficar a mercê
de governos autoritários e delirantes que colocassem em risco a própria existência da hu-
manidade, ou pelo menos, do mundo civilizado.
É possível afirmar que desde então muito foi feito para a efetiva implementação
e respeito aos direitos do homem, entretanto em que pese os avanços alcançados, mui-
to há por fazer. Por incrível que possa parecer o maior inimigo do referido ideal não é
o próprio homem, mas sua personificação em (des)governos pelo mundo afora. Sim, a
maior ameaça ao homem, desde as mais priscas eras, são os governantes. Esse assunto
já foi brilhantemente abordado quando do estudo da real necessidade do Estado por
notáveis pensadores, como Thomas Hobbes, Jean-Jacques Rousseau, John Locke e por
que não citar Norberto Bobbio. Talvez seja possível concluir que o governo perde a sua
legitimidade quando os interesses dos governantes se sobrepõem à liberdade do povo.
Sim, cito liberdade e não qualquer outro bem social, pois como já disse Voltaire: “Prefiro
a liberdade ao pão.”
No extremo oposto, temos a Democracia como grande aliada dos Direitos Huma-
nos. Um rápido olhar na história nos mostrará que os maiores benefícios auferidos pela
humanidade são reflexos diretos da capacidade de uma sociedade se organizar em uma
democracia.
Hodiernamente, a liberdade, e como via de conseqüência os Direitos Humanos,
enfrentam uma nova ameaça: governos populistas travestidos de democracia. Ancorado
em anseios populares legítimos, alguns governantes aproveitam-se do apelo popular para
chegar ao poder e manter-se indefinidamente. Suas primeiras vítimas são a imprensa e
a classe média que são perseguidas por anteverem os malefícios que ditos “governos do
povo” trarão ao próprio povo. Mal sabem esses auto-denominados “salvadores da pátria”
que serão eles mesmos os primeiros a serem engolidos pelo monstro que eles criaram.
Muito temos a agradecer às gerações passadas que em muitos casos sacrificaram
a própria vida para não se submeterem a ideais totalitários que tornavam o povo escravo
de interesses inconfessáveis de governantes sempre dispostos a ludibriar as massas com
promessas falaciosas e megalomaníacas. É chegada a vez da nossa geração manter acessa
a chama da liberdade e da democracia, e o seu preço será, por certo, a eterna vigilância
na defesa a qualquer custo do maior dos bens dos direitos humanos: o direito a ser (e ser
tratado como) humano.
Como dizia Fernando Pessoa,
“o homem é do tamanho de seus sonhos”.
Esta obra do jurista e filósofo Prof. José
Anastácio de Sousa Aguiar é uma prova
inconteste de que tudo se torna possível
quando temos a coragem e a determina-
ção de enfrentar os desafios em busca de
nossos sonhos. Este livro é o resultado de
uma extensa pesquisa em um curso de
mestrado em Londres.
Das lides de suas atribuições como
professor e jurista o autor poderia ter
escolhido diversos outros temas para sua
pesquisa. Porém, motivado por sua agu-
çada responsabilidade social e por sua
grandiosa visão de futuro, preferiu apro-
fundar suas reflexões sobre a criança e o
adolescente. Analisar e trazer para deba-
te os impactos das políticas de proteção
à criança e ao adolescente demonstra a
preocupação do autor com o futuro do
Ceará e do país, além de ser um tema
significativamente oportuno, uma vez
que faz parte das agendas dos organismos
internacionais, como as Nações Unidas,
União Européia, Banco Mundial e diver-
sos outros, que dentre suas atividades está
a elaboração e financiamento de políticas
com essa finalidade.
No Brasil, desde o final do século
passado, as crianças e os adolescentes
passaram a contar com um estatuto que
garante seus direitos e define diretrizes
para as demais políticas nos três níveis
de governo. Porém, a luta deve continu-
ar para que tais políticas sejam conside-
radas uma questão de Estado e não de
governo e para que não venham a sofrer
descontinuidade que comprometam
seus resultados.
O Dr. Anastácio nesta pesquisa apro-
funda com muita propriedade muitas ou-
tras questões e trás para o debate determi-
nados pontos que servirão para a reflexão
dos policy makers e responsáveis pelas po-
líticas de desenvolvimento daqueles que
representam o futuro desse país. Pois,
jamais poderemos esquecer o que disse
Karl Mannheim, sociólogo e professor da
London School of Economics: “O que se faz
agora com as crianças é o que elas farão
depois com a sociedade”.
Por isso, este livro além de trazer no-
vos conhecimentos, chama a atenção para
uma questão estratégica para o futuro do
Ceará e do Brasil.Parabéns ao autor!
José Joaquim Neto Cisne
Curriculum do autor
José Anastácio de Sousa Aguiar é Ad-
vogado da União, em exercício na Pro-
curadoria da União no Estado do Ceará.
Formou-se em Direito pelo Centro de
Ensino Unificado de Brasília/DF (Uni-
CEUB) em 1997. Pós-graduado pela
Escola da Magistratura do Distrito Fe-
deral em 1998. Ex-professor de Direito
Constitucional e Administrativo da Asso-
ciação de Ensino Unificado do Distrito
Federal (AEUDF) e de diversos cursos
de preparação para concursos públicos,
em especial o Obcursos, em Brasília. Co-
autor de 02 livros jurídicos: Questões
Comentadas de Direito Administrativo e
de Direito Constitucional, editados pela
Atlas. Co-autor do livro sobre genealogia
‘Família Aguiar – 7 Séculos de História’
e autor do livro sobre filosofia ‘O Des-
pertar para a Filosofia’. Co-fundador em
Londres do Latin American Issues Forum
(LAIF). Mestre em Direitos Humanos
pela London Metropolitan University. Di-
plomado em proficiência no idioma es-
panhol pela Universidade de Salamanca
na Espanha.

José Anastácio de Sousa Aguiar
Fortaleza
2010

Projeto Gráfico e Capa
Gilberlânio Rios
Valdianio Macêdo
Impressão
Expressão Gráfica
Contato com o autor
tacio111@bol.com.br
Catalogação na Fonte
Bibliotecária Perpétua Socorro T. Guimarães
CRB 3 801
A 282 m Aguiar, José Anastácio de Sousa
Master of Laws: Human Rights./José
Anastácio de Sousa Aguiar.- Fortaleza:
Expressão Gráfica Editora, 2010.
190 p.
(Texto em Inglês, prefácio em Português)
1.Direitos Humanos- Brasil I. Título
ISBN 978-85-7563-555-1 CDD: 341.481

Dedicatória
“Minha gratidão a Deus, aos fa-
miliares e amigos que direta ou indiretamente contribuí-
ram para a elaboração deste livro e a minha querida espo-
sa Soraya Aguiar, pela existência tão doce. Dedico a todos
aqueles que se interessem pelo tema.”

Sumário
Presentation..........................................................................................................9
Prefácio................................................................................................................13
Essay – Human Rights and International Law ...........................................17
Essay – Human Rights and Relativism.........................................................27
Essay – Researcher of Law...............................................................................37
Essay – Globalisation and Transnational
Religious Actors (TRA)..................................................................................47
Essay – 2008/2009 – Israel Gaza Conflict..................................................61
Thesis Proposal...............................................................................................115
Dissertation – A Critical Appraisal of the Child and Adolescent Statute
(ECA) 1990 and the Brazilian System and Policies Toward the Protection
of Children’s Rights........................................................................ 123
Apêndice I – Award Confirmation............................................................185
Apêndice II – Letter of Reference from my Supervisor ........................186
Apêndice III – Fees Payment .....................................................................187
Apêndice IV – Diploma...............................................................................188

Apêndice V - Diploma Supplement...........................................................189
Apêndice VI - Record of Learning and Archievement...............................190

9
Presentation
We had the great chance to come to study in
London (UK) just the same period Anastacio did. When you first plan
to leave all you have to go for something abroad you obviosly go with
dreams, optimism and always a bit of fear, fear of failing, fear of not get-
ting on with your challenges, but willing is always stronger and when
you are lucky you find strenght and resources to make it happen.
Things, in general, were not easy, all of us have
had big problems to solve: manage to go with a scholarship which re-
quest to be on activities which clashed with one of the modules (Jorge),
or work hard to pay university’s fees (Andrea), all making things really
hard from the very beggining. If you know London you will probably
agree that beyond being a global spot with a lot of interesting things, it
is also a place where the speed of different relationship, a grey, cold, and
rainy weather, specially, but not just, during the winter, make things
hard for a foreigner not used to a North European way of being.
But just when things were getting harder, life
allowed us to meet Anastacio, and that encountering meant a big change
on the experience we had that year. Having met Anastacio introduced us
into new ideas, different ways of look at things, so then we spent long
hours discussing about different topics, academics and not, trying to
understand the way the world works out and then undestanding the
importance to take a position towards it. That is why this compila-
tion of text is so amazing, because it doesn’t just reflect the results of
exhaustive research, but it is the reflect of a position towards important
challenges that entire humanity is facing today.
And as it is only trough special people that you
find the space to talk about interesting things and grow as a human

10
being, and then make the most of experiences such as being studying an
interesting topic in an interesting place. This is the reason that we will
be always gratefull for having met Anastacio. We also have to recognise
that without his support, our experience in the UK wouldn’t have being
as interesting and pleacent as it was and we probably wouldn’t have
learned as much as we did. We will never forget those days previous to
exams how we were both studying together and managed to learn a lot,
but also have a great time, adding humanity and reality to the topics
we were facing.
And it is precisely this why we feel so proud to
have a word on the present book, because we have a chance to say thank
you Anastacio for all the hours we spent together, for the conversations
we shared between us, and would also want to say that we hope all the
plans works out for better, and wish to share as friend for the rest of
our lives.
Related to the book itself, the main part (dis-
sertation) is, in simple words, a great compilation of thoughts and re-
flections on improving the standard of living of the disadvantaged chil-
dren of Brazil and other developing countries. These words constitute
a challenge and an invitation to people who are interested in social and
legal issues. The main goal is that the reader opens their mind and finds
in this text the motivation to know more about the reality of millions
of children and adolescents who live in very difficult situations, despite
the progress in legislation to protect their rights.
Anastacio offers us a deep analysis of the
“Children legal framework” in Brazil, the living conditions of Brazilian
children and what has been done to make a positive and significant
impact on their life and to protect their rights.
His conclusions remind us that to achieve this,
not only do we need resources, laws and policies, we also need com-

11
mitted individuals who are able to relinquish power and their own in-
terests, people with a huge heart who are prepared to work together to
meet the children’s real needs.
Thanks to Anastacio´s social sensitivity and his
experience working with the children of his own town, Fortaleza, more
people can become motivated to make a positive difference to the lives
of children not only in Brazil but around the world.
Luz Andrea Medina Sierra
Colombian Psychologist and Master of Human Rights and Social
Justice.
Jorge O’Ryan Cavagnaro,
Chilean Lawyer and Master of International Law.
Bogota and Santiago, February 8th 2010.

13
Prefácio
Realizar o prefácio deste livro, que nada mais é
do que os trabalhos e a dissertação que foram realizadas no mestrado em
Diretios Humanos realizado na London Metropolitan University, no
meu modo de ver, poderia ser resumido em uma palavra: agradecimen-
to. Ninguém chega a lugar algum sem ajuda e orientação, e reconhecer
este privilégio, é mais do que uma satisfação, é um enaltecimento ao
valor da amizade, e por que não dizer do ser humano.
Muitos, de uma forma mais direta ou não, con-
tribuíram para que eu pudesse ir, ver, vencer e voltar, seja pela simples
torcida, seja pela colaboração direta em algum aspecto da empreitada.
Por certo, é uma tarefa árdua nominá-los, na medida em que poderia
eventualmente olvidar alguém, mas correrei o risco em nome do dever
do reconhecimento direto e pessoal.
É possível dividir em duas fases distintas essa
odisséia, a primeira que podemos nominar de pré-mestrado e a segunda
o curso propriamente dito, e em cada um destes capítulos tive a honra
de receber apoios diversos.
Importante destacar na fase pré-mestrado, pe-
ríodo este no qual os planos e sonhos ainda eram embrionários, o in-
cansável e doce apoio da minha esposa Soraya Aguiar. A cumplicida-
de e convivência naqueles momentos foram inesquecíveis e ficarão
guardados por toda a minha vida.
Grato à Divindade em primeiro lugar e aos fa-
miliares e amigos que tanto me apoiaram: meus pais (Lúcio Flávio e
Maria Elizabete), irmãs (Elina e Mirela) e primos, em especial, Elisabete
e Teresa Alencar, Adriana Cavalcanti de Aguiar, José Joaquim Neto Cis-
ne, José Batista Thomas e Antônio Thomaz Neto.
No âmbito da AGU, não posso esquecer de
agradecer a Izabel Vinchon, Francisco Soares de Lima, Felipe de Araújo
Lima, Adriana Villas Boas de Araújo Lima pelas dicas, força e torcida.

14
Os ex-chefes da Procuradoria da União no Estado do Ceará, Clarissa
Sampaio e Antônio Cláudio, agradeço pela liberação e apoio.
Agradeço também o pessoal da Embaixada
do Brasil em Londres, em especial o Embaixador Laudemar Aguiar
e o Auxiliar do Adido do Exército Fellipe Albarello. Não posso olvi-
dar Mário Mamede e Cristina Cambiaghi, da Secretaria Especial de
Direitos Humanos da Presidência da República pelas orientações.
Uma pessoa, em especial, merece muito cré-
dito nessa odisséia, pois sem sua ajuda, provavelmente, a consecução
do mestrado não teria sido possível. Tânia Davella é essa pessoa. Ela
propiciou todas as informações necessárias, bem como agilizou e otimi-
zou a documentação referente ao curso, tendo em vista que à época ela
trabalhava na London Metropoitan University. Obrigado, Tânia.
Um muito obrigado também aos amigos de
sempre: Augusto Cláudio Ferreira Guterres Soares, José Lindolfo We-
ber da Silva e Rejane Zenir Jungbluth Teixeira, companheiros de outras
caminhadas e pessoas muito queridas. Grato pela amizade sincera.
Realizar um mestrado, por si só, não é uma
tarefa fácil. Realizar um mestrado em outro país, as dificuldades são
diretamente proporcionais à distância, ao idioma e a adaptabilidade ao
novo local. Se este novo local for Londres, o mestrado toma contorno
de aventura, especialmente, se forem considerados a questão climática
e os preços.
A escolha do local no qual morar foi um ca-
pítulo à parte e desde os primeiros planejamentos me preocupou, em
razão dos elevados preços de Londres e pelo fato de eu dar preferência
a um local que fosse perto ou de fácil acesso à universidade. Após uma
indicação da embaixada brasileira, chegamos ao Hanover House, 37,
Emperor’s Gate, South Kensington – uma belíssima região a poucos
metros do Hyde Park e do outro lado da cidade – considerando que a
universidade fica em Holloway Road. Entretanto, para facilitar, a linha

15
de metrô Picadilly Line – que cruza Londres do sudoeste para o nor-
deste – passa a poucos metros do referido endereço e da universidade.
Tivemos a grata satisfação de ser recebidos
pelo simpático casal, os Nakkar, que gentilmente nos atendeu e hospe-
dou por todo o período, pelo módico preço de 240 libras semanais (é
isso mesmo, o vizinho cobrava 370 libras).
Uma coisa que logo percebi é que deveria ter
estudado mais inglês. Devo confessar que participar de aulas, nas quais
a maioria dos mestrandos é nativa no idioma e os professores não estão
muito preocupados em serem entendidos por estrangeiros, assusta, em
especial no primeiro mês.
Entretanto, logo descobri que não era o único
que achava que tinha estudado pouco o idioma. A identificação por afi-
nidades fez nascer o que poderia dizer ter sido uma das melhores coisas
do mestrado: a amizade com Jorge O’Ryan e Andrea Medina.
Com ambos, ele, chileno, e ela, colombiana,
foi possível amenizar o fardo do isolamento e do idioma. Ser amigo de
ambos é coisa fácil, dado sua imensa gentileza e terna compreensão. É
com carinho que lembro os agradáveis passeios no Hyde Park e Rich-
mond Park, bem como das incomparáveis conversas em Cambridge.
Foi um privilégio tê-los conhecido e uma alegria maior a sua amizade.
Não poderia esquecer a agradável companhia dos irmãos Andy Hinds e
Sally Hinds, esposa de Jorge.
Outro momento importante no mestrado foi a
convivência com o pessoal do LAIF – Latin American Issues Forum, fó-
rum este que criamos em Londres com os mestrandos e doutourandos.
Agradeço em especial a participação de Gabriela Goulart, mestranda
pela LSE (London School of Economics), que com sua incansável atitu-
de e capacidade de trabalho permitiu a fundação do mesmo. Agradeço
ao amigo Marcelo Alves Dias de Souza, doutourando pelo King’s Col-
lege, pelas agradáveis reuniões em seu apartamento. Aos demais com-

16
ponentes do LAIF: Jorge O’Ryan, Andréa Luz Medina, Maarten van
Munster, Victor De Martino, Razim Rzaev, David Trueman, Amanda
Cumberland and Vinod Kumar Kusuma, meu muito obrigado.
Agradeço também o carinho e a amizade das
irmãs Silvia e Luciana Peroba, bem como Lucia Correa e Murtaja Ha-
mada, pelos bons momentos vividos e pelos gostosos almoços das sex-
tas-feiras.
A realização da minha tese de mestrado sobre
o Estatuto da Criança e do Adolescente só foi possível graças às perti-
nentes orientações de Maria das Graças Sá Gadelha, Ana Márcia Dió-
genes Paiva Lima e Nadja Bortolotti, do CEDECA/CE. Sem o carinho
delas, essa obra não teria alcançado o sucesso que obteve. Sou muito
grato à minha orientadora na tese do mestrado, Anjana Bahl, pelo ca-
rinho, atenção e paciência em me mostrar o melhor caminho a seguir.
Agradeço também aos amigos de longas datas, Paulo Marcelo Ribeiro e
Antenor Madruga, pelas dicas de contato.
Claro que houve momentos de ansiedade e
angústia, seja pela dificuldade inerente ao próprio curso e idioma, seja
pela hostilidade do clima ou pela adaptabilidade a um ambiente novo,
entretanto, posso afirmar com clareza que os bons momentos em muito
superaram os maus.
A beleza do mestrado, todavia, deveu-se a uma
pessoa em especial, a minha esposa. Conviver com ela por quase um
ano em um minúsculo studio foi uma das experiências mais significati-
vas e interessantes da minha história de vida e ter podido compartilhar
aqueles momentos com ela não tem preço. Sim, como já disse Gonza-
guinha; “faria tudo outra vez, se preciso fosse...”.
Fortaleza/CE, 11 de fevereiro de 2010.

17
Essay
Human Rights and International Law
Assess and explain the importance that human rights have attained
within international law.
“You cannot conceive the many without the one.”
(Plato, Dialogues, Parmenides, 166)
Introduction
This essay examines the historical develop-
ment of human rights, the importance that they have attained within
international law and their influences for definition of a new internatio-
nal legal order, allowing the formation of a new system of international
rules for protecting those rights.
It also has a brief study of the correlation be-
tween the stages of development of human rights and their influence in
the limitation of state sovereignty. It contextualizes the events in World
War II and the role of United Nations in promoting and consolidating
the human rights, and at the end concludes about the proposed topic.
Historical Evolution
The evolution of the concept of human rights
is closely linked to the recognition of the individual as a subject of ri-
ghts and the consequent decline of the absolutist state. The idea of the
existence of human rights began to gain strength from the events in the
eighteenth century. However, one can say that: “There are divergent
views as to the origins of human rights: the existence of a body of basic
rights can be traced back to the early thirteenth century in Europe and
has featured in various predominantly European schools of thought
since that time.”1
1 SMITH, Rhona K. M. – International Human Rights – Oxford University Press – 2nd
edition –
Oxford – 2005 – p. 5.

18
It is important to highlight, however, that the-
re were significant attempts in a remote past to impose restrictions on
the power of the ruler, such as the Magna Carta of 1215, considered
the foundation of English liberties, in which feudal lords imposed on
the king John of England that document, which stipulated that from
then on, the English kings could only raise taxes or change laws with
the approval of the Great Council, composed of members of the clergy,
counts and barons.
Among the documents before the Second
World War, three stand out: The English Declaration of 1689 (Bill of
Rights), which besides establishing the foundations of parliamentary
monarchy, established the guarantee of press freedom and individual
liberty, protection of private property and autonomy of action of the
judiciary; the American Declaration of Independence, drafted by Tho-
mas Jefferson, and the French Declaration of the Rights of Man and of
the Citizen of 1789, which was a direct result of philosophical and legal
movements by some European philosophers, and whose influence on
the independence movements of Latin American countries cannot be
ignored. The principles established by the three aforementioned state-
ments were welcomed in the main liberal constitutions. The protection
of rights was, however, of a domestic nature.
The Second World War, with a series of atro-
cities, showed that human rights should be protected by international
law. In structuring the international order, the institution of the Uni-
ted Nations through the Charter of San Francisco, signed on June 26,
1945, came to give to the human rights a constitutional stature in the
planning of the rights of the people. Since its foundation, it was not
safe to assume that there were, in Public International Law, conscious
and organized concern on the theme of human rights.
The adoption of the Charter guaranteed the legal
assumptions that led to its General Assembly, meeting in Paris, to adopt the
Universal Declaration of Human Rights in December 1948, which is the
most important milestone in the study of human rights. The Declaration

19
is a document that expresses so widely the substantive rules relating to the
subject, and in which the later conventions would find their principles and
inspiration. However, those rules are not exactly a legal obligation for each
state, since the text was adopted in the form of resolution of the Assembly,
but: “The declaration is also the source of an international movement, and
of numerous national movements, of political activists who struggle against
oppression, injustice and exploitation (…).”2
The Universal Declaration of Human Rights
The phenomenon of internationalization of
human rights got great emphasis by the atrocities committed during
the Second World War, together with the lack of state control to ensure
the effectiveness of those rights, and safeguard of human dignity.
When human rights are no longer regarded as
matters of exclusive jurisdiction of states sovereign and began to be inser-
ted between the prerogatives of international society, their defense began
to occur regardless of the territorial limitations imposed by the states.
Just from the creation of the United Nations,
human rights became to be an integral part of the interest of internatio-
nal society, as it is said: “Before the foundation of the United Nations,
the human rights protection which existed was clearly sporadic.” 3
Since that time, the human rights were no lon-
ger a mere abstraction, but a real topic of interest to the entire interna-
tional community, as: “The first step taken by the United Nations with
respect to human rights was the affirmation of the existence of a body
of international human rights.” 4
2 FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 36.
3 SMITH, Rhona K. M. – Op. cit., p. 24.
4 Ibid., p. 30.

20
In this context arises the Universal Declaration
of Human Rights of 1948, drafted by the General Assembly, a body
of the United Nations - UN. The human rights became the center of
attention and decisions rather than a peripheral issue. The universality
and indivisibility of those rights began to be priority in guiding the
development of public policies by the states, and should be observed
regardless of cultural, political, economic and religious needs of each
society, as: “Undoubtedly, the creation of a treaty-based body of inter-
national human rights law has been one of the successes of the orga-
nization. In little over fifty years, international human rights law has
become a documented reality.”5
The Human Being as Subject of Rights
The human rights were born because of the need
of the citizens to be holders of certain rights in relation to the state sove-
reign and then in relation to international society. With this design, the
individual was brought before the international society, opening space be-
tween sovereign states, which hitherto were the only subjects of rights, as
it is said: “The signing of the United Nations Charter brought about a
fundamental change. For the first time ‘human rights’ were reffered to
in the constitution of an international organisation. It is true that the
reference was in general terms, but the very mention was significant
because it suggested that here was a concept of universal application.”6
The universality and the internationalization
of human rights led to the formation of some international regulatory
systems (universal and regional) for protection of these rights. Adop-
ting the value of the primacy of the human person, these systems com-
plement each other, interacting with the national system of protection,
5 Ibid., p. 35.
6 ROBERTSON, A. H. and MERRILLS, J. G. – Human Rights in the World – Manchester University
Press – 4th
edition – Glasgow – 1996 – p. 330/331.

21
to provide the greatest possible effectiveness in the protection and pro-
motion of fundamental rights.
Accepting the international apparatus protec-
tion, as well as international obligations arising therefore, the states shall
accept the international monitoring, as regards the way in which funda-
mental rights are respected in their territory. It is important to emphasize,
however, that international action is always an additional action, provi-
ding an additional guarantee of protection of human rights.
The Resizing of State Sovereignty
In this context, it has become inevitable to re-
cognize that human rights really bring essential values to any group
and it also bring a new reading of the concept of state sovereignty, as:
“The evolution of the concept of human rights is closely related to the
evolution of the concept of sovereignty. This is also reflected in modern
international law.”7
The respect for human rights, as called for in
many international acts, especially from the second post-war period,
has contributed to the spread of protective actions and sedimentation
in the perception of individuals about the existence of a moral obligation
to preserve them. This gradual integration of certain international standar-
ds for protecting human rights has contributed decisively to give them a
general reach.
Moreover, the duty to respect human rights has
long been emphasized by the internationalist doctrine and can be em-
bedded in the general principles of law recognized by civilized nations.
Accordingly, it is clear that the international order must be concerned
with their implementation, diminishing the once inviolable dogmas of
7 BERTING, Jan – Human Rights in a Pluralist World: Individuals and Collectivities – UNESCO –
1990 – p. 17.

22
sovereignty and providing truly effective mechanisms for their protec-
tion, as it is said: “At its highest level of abstraction the naturalist logic
posits human dignity as the highest global value, whose pursuit does
not even require the consent of a sovereign state authority.”8
The process of internationalization of human
rights has been slow and painful, but its importance to the legal deve-
lopment of those rights is undeniable, making easier the recognition of
their universal and supra-state character. In the aspect of ownership, it
has contributed to the expansion of the active subjects of international
law, not allowing the domestic jurisdiction to occupy an exclusive role
in the protection of these rights.
However, it seems indisputable that the inter-
national protection of the individual counts in a serious threat to the
sovereignty of the state. It is undeniable that the importance of the-
se principles requires efforts to ensure their coexistence, avoiding one
being used to annihilate the other.
The New World Order
The changes arising from the move-
ment of international human rights also contributed to the pro-
cess of democratization of the international scenario since, besi-
des the states, new subjects of law are going to take part in the
international arena, as individuals and nongovernmental organizations.
In this context, individuals have become subjects of international law
- traditionally, an arena in which only states could participate, as: “Ori-
ginally, international law was, literally, the law of nations. It was exclu-
sively concerned with the interation of States – diplomatic relations and
the laws of war.”9
8 Ibid., p. 174.

23
Indeed, insofar as they keep a direct rela-
tionship with the international instruments on human rights, indi-
viduals are being designed as subjects of international law. Provided
that subjects of international law, it is up to individuals the right to
drive international mechanisms, such as the petition or individual
communication, in which an individual, groups of individuals or,
sometimes, non-governmental entities, may refer to competent in-
ternational bodies complaint of violation of law enshrined in inter-
national treaties.
In fact, the human rights have introduced in
international law a new dimension of the concept of citizenship. This
concept is now extended and expanded, in order because it includes not
only rights under national level but also internationally listed rights.
The international system of accountability has yet to integrate this new
concept of citizenship in order that, next to national guarantees, are
added guarantees of international nature.
Nowadays, it can be said that the full realiza-
tion of the rights of citizenship involves the wide and effective exercise
of the human rights, nationally and internationally guaranteed, and
this was only possible through the implementation of the Universal
Declaration, as: “The Universal Declaration attracts and deserves acco-
lades of superlatives. Without doubt, it was an unprecedented step for
the world – state acknowledgement that individuals were no longer so-
lely subject to the whims of the State. Rather individuals were entitled
as a birthright to equality and to fundamental rights.”10
Conclusion
In conclusion, it is easy to recognize the great
importance of human rights in the current international order11
, es-
11 “In the past ten years, the concept of human rights has become a permanent part of the way we think
about relations between nations. International human rights are now a legislative condition of foreign aid,
have been institutionalized in bureaucratic structures, and, perhaps most importantly, have been stamped
indelibly in the minds of the public as one of the most important standards by which we measure other
countries.” ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006 – p. 21.

24
pecially in the latter half century of intense development of the Uni-
versal Declaration of Human Rights and the creation of increasingly
effective mechanisms for action in this area. The International Human
Rights Law has been recognized as autonomous branch of science and
highlighted as a contemporary legal protection of man, as an individu-
al, opposed to the state or any other subject of international law for the
protection against any harmful act. 12
Any other idea has not caused so much change
in relations between states or between states and individuals as a human
rights issue. Since the publication of the Universal Declaration of the
Human Rights, which this year completes 60 years old, is extremely
difficult to ignore the extraordinary development of his ideal, and it
can be easily said that no international issue could dispenses with the
interference of the human rights issues.
12 “In view of this very similar terminology it would seem that we are justified in speaking here of an
international law of human rights and in suggesting that the approach which is adopted toward these
common provisions in one system is likely to be important generally.” ROBERTSON, A. H. and
MERRILLS, J. G. – Op. cit., p. 332.

25
Bibliography
ADDO,MichaelK.–InternationalLawofHumanRights–Ashgate–2006.
BAXI, Upendra – The Future of Human Rights – Oxford University
Press – 2nd edition – 2006.
BERTING, Jan – Human Rights in a Pluralist World: Individuals and
Collectivities – UNESCO – 1990.
FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2008.
MCLEOD,Ian–LegalTheory–PalgraveMacmillan–4thedition–2007.
ROBERTSON, A. H. and MERRILLS, J. G. – Human Rights in the
World – Manchester University Press – 4th edition – Glasgow – 1996.
SMITH, Rhona K. M. – International Human Rights – Oxford
University Press – 2nd edition – Oxford – 2005.
STEINER, Henry J. and ALSTON, Philip – International Human Rights
in Context – Oxford University Press – 2nd edition – Oxford – 2000.

27
Essay
Human Rights and Relativism
Evaluate the criticism that the language of human rights expresses
individualist norms that are alien and detrimental to the ethics of
many cultures.
“The human understanding is like a false mirror, which, receiving
rays irregularly distorts and discolors the nature of things by
mingling its own nature with it.”
(Francis Bacon, Novum Organum, Aphorism 41)
Introduction
One of the oldest and fierce controversies in
the field of human rights is linked to the question about the universal
or relative character of these rights. In other words, should be given
equal treatment in all nations to the internationally recognized human
rights, or whether are they subject to changes in the hierarchical rankin-
gs according to different cultural basis on which a society has develo-
ped, adapting to the ethical values of each culture?
Some critics believe that the universal charac-
ter expresses the individualistic values and the dominant culture, wi-
thout respecting the peculiarities of each group and ethical culture. This
essay seeks to identify the issues surrounding this question, reaching to
a final conclusion on the proposed topic.
Definition
First of all, it is important to understand the
limits of the concept that will be studied. In one extreme, there is the

28
radical cultural relativism, and in the other, there is the radical uni-
versalism: “The two extreme positions on cultural relativism can be
called radical cultural relativism and radical universalism. Radical
cultural relativism would hold that culture is the sole source of the
validity of a moral right or rule. Radical universalism would hold that
culture is irrelevant to the validity of moral rights and rules, which are
universally valid.”1
Within those limits are the different concep-
tions about the interpretation and acceptance of the protetion of hu-
man rights.
Universal Character
In the foundation of the rhetoric on human
rights, there is the assumption that human nature is universal and com-
mon to all individuals. And it could not be any other way, because if
it were, it would be illogical to advocate the existence of a universal
declaration of rights.
In this context, one can say that the doctrine
of universal has its roots from the conceptions of the theory of natural
law2
. Under this doctrine, these natural laws establish certain rights
inherent to all human beings and represent, as a result, a higher law,
which would be considered the supreme parameter to be observed in
the preparation of national and international standards relating to the
humanistic dogmatic.
1 ADDO, Michael K. – International Law of Human Rights – Ashgate – 2006 – p. 173.
2 “However, this must be amplified by saying that all natural lawyers would probably that, because law
may, in the final analysis, involve the coercive power of the state, the basis of the law should at least be
moral, because otherwise the state will be a party to immoral conduct.” MCLEOD, Ian – Legal Theory –
Palgrave Macmillan – 4th
edition – 2007 – p. 20.

29
For the universalists, there is a set of minimum
rights inherited by all peoples, as follows: “Put simply, the partisans of
universality claim that international human rights like rights to equal
protection, physical security, free speech, freedom of religion and free
association are and must be the same everywhere.”3
These minimum sets of rights go beyond cul-
tural differences, and should function as true magnetic north in the
preparation of laws on human rights. These rules should provide basic
guidelines to be prosecuted for the protection of members of a society.
The result of taking basic rules established for the protection of human
dignity by an international body representative of all nations, or at le-
ast almost entirely (for example, the United Nations), would not only
be limited on their wide acceptance, but also their wide applicability
among different peoples.
Thus, the acceptance of human rights as inhe-
rent to all individuals, no matter their nationality, is one of the crucial
assumptions to its actual implementation. The colluding with any gra-
duations of those rights would have been a constant threat to the effec-
tive protection that is intended to offer to individuals.
This does not imply that it is not possible to
accept any kind of regional influence in the implementation of the-
se standards. In fact, only the essence, the value ultimately provided,
should be promoted and similarly guarded among all peoples.
Currently, what is happening is that the uni-
versality of human rights have been interpreted considering the diffe-
rent contexts, as it is said: “International human-rights institutions
have generally accepted that universal human-rights standards ought to
be interpreted differently in different cultural contexts.”4
3 STEINER, Henry J. and ALSTON, Philip – International Human Rights in Context – Oxford
University Press – 2nd
edition – 2000 – p. 366.
4 FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 104.

30
The Cultural Relativism
The proponents of cultural relativism, in turn,
insist that the standards concerning human rights should be considered
and implemented in accordance with the different cultural contexts.
The supporters of this current attempt to impose the idea that there is
a huge cultural variety among the many societies that are spread throu-
ghout the world and therefore all kinds of local customs would need
to be deemed valid. It would not be correct electing a limited number
of cultural models, which would be taken as universal standards, and
based on them, assess and stigmatize all the others that are not con-
sistent with them, as follows: “Advocates of cultural relativism claim
that (most, some) rights and rules about morality are encoded in and
thus depend on cultural context, the term culture often being used in
a broad and diffuse way that reaches beyond indigenous traditions and
customary practices to include political and religious ideologies and
institutional structures”.5
Human dignity would still be an important
principle to be preserved but, unlike the universalist, the relativist doc-
trine has used more a collective approach to the same protection of dig-
nity, through interactions with society itself, which police the actions
of individuals. This is why severe behavioral control by the community
is allowed.
In fact, this would be tantamount to say that
the social structure has its own internal mechanisms to protect its ci-
tizens, despite the fact that these instruments may not match those
employed in international documents. And, therefore, the protective
guidelines outlined by international human rights standards would be
not only unnecessary, but also inappropriate to prevent and repress any
violence perpetrated against human beings.
5 STEINER, Henry J. and ALSTON, Philip – Op. cit., p. 366 and 367.

31
The relativists, moreover, calling the inade-
quacy of standards on human rights as called today, argue that they are
located on the universalist side of the dispute.
The Relativism as Maintenance of Power
It is very interesting to observe that the most en-
thusiastic advocates of relativism are governments and religious authorities
interested more in maintaining the power and the consequent preservation
of the status quo acquired than in effective realization of the basic needs
of their societies:“It thus remains understandable that some grass roots
human rights activists assail the universality of human rights in terms of
cultural and political imperialism and that some heads of states and gov-
ernments construct justification of their impunity for violation of human
rights norms and standards by appeals to cultural differences.”6
This kind of relativism is more common in de-
veloping countries. They often argue that they cannot afford human ri-
ghts, since the tasks of nation building, economic and the consolidation
of the state structure are still unfinished. They say that authoritarianism
is more efficient to promote development and economic growth. It is
suggested that the limitation of human rights may be understood as the
sacrifice of the few for the benefit of the many, as follows: “Government
officials denounce the corrosive individualism of western values – while
they line their pocket with the proceeds of massive corruption, drive
imported luxury automobiles, and plan European and American vaca-
tions. Leaders sing the praises of traditional communities, which they
claim as a source of their political practices – while they wield arbitrary
power antithetical to tradition values, pursue development policies that
systematically undermine traditional communities, and replace tradi-
tional leaders with corrupt cronies and party hacks.” 7
6 BAXI, Upendra – The Future of Human Rights – Oxford University Press – 2nd edition – 2006 – p. 160.
7 ADDO, Michael K. – Op. cit., p. 185.

32
Ocidental Values
A major obstacle to be overcame, perhaps the
largest, to reach a broader acceptance of human rights internationally
recognized, is that the assertion that this humanistic dialectic is a con-
cept originally born in the West and, consequently, does not reflect the
reality of Eastern countries, as follows: “To the relativist, these instru-
ments and their pretension to universality may suggest primarily the
arrogance or ‘cultural imperialism’ of the West, given the West’s tra-
ditional urge – expressed for example in political ideology (liberalism)
and in religious faith (Christianity) – to view its own forms and beliefs
as universal, and to attempt to universalise them.”8
Undoubtedly, this vision of the human rights
has its cradle in the Western world. The primary source of the ideas of
individual freedom, democracy, human rights and other privileges of the
genre is the West or, more precisely, Europe. This cannot be inferred,
however, that other nations should not adopt and strengthen them only
for this reason. This type of rivalry and prejudice, unfortunately, has often
been the major factor that inhibit the adoption of a cosmopolitan system
for protecting human being who earned universal resonance.
Another important argument proposed ai-
ming to refute these Western standards is based on the History of the
formulation of many of the instruments concerning human rights.
Many countries in Africa and Asia, by way of example, did not parti-
cipate in the drafting of the Universal Declaration of Human Rights,
because they were colonies at the time and thus were not considered
members of the United Nations.
On the evidence, the humanistic thinking in
this field, because of their own cradle, is not a universal ideology, with
equivalent effect among all ethnic groups. Not mean, however, that it
should not be universally chancellery. In summary: “In the conditions
8 STEINER, Henry J. and ALSTON, Philip – Op. cit., p. 367.

33
of modern society, rights, especially human rights, are a particularly ap-
propriate mechanism for protecting this basic, relatively universal core
of human nature and dignity.”9
Universality, not Uniformity
Perhaps one of the points that have not been
well understood by critics of the universality of human rights is the
fact that it is not the same as uniformity. Accepting the universality
does not require removing all cultural, philosophical and religious
variations of a particular social group, nor presenting a magic formula
for resolving all problems. More so, submitting a minimum set of
values that reflect what is human in every individual, from which no
human being can be excluded.
In this context, human rights derive from the
simple fact of being human and not depend on any particular benefit from
any government or legal code. The differences of culture should serve to
enrich the similarities and not deepen the differences, because for most pa-
radoxical that is, only the protection of human rights can ensure diversity.
Despite the differences that still remain betwe-
en a wide range of conceptions on human rights implementation, it is
possible to see a bright future, as it is happening in Europe, as follows:
“In spite of the differences between Eastern and Western Europe in the
domain of human rights as they are related to the different backgroun-
ds, (...). Eastern European states accept global human rights treaties
and incorporate civil and political rights in their national legislation.
Western European states are becoming stronger oriented toward social,
economic and cultural rights.”10
9 ADDO, Michael K. – Op. cit., p. 188.
10 BERTING, Jan – Human Rights in a Pluralist World: individuals and collectivities – UNESCO –
1990 – p. 113.

34
Conclusion
In summary, it can be said that the most re-
asonable position to the question proposed lies in what was expressed
by the World Conference on the Human Rights in June 1993 (Vienna
Declaration), which reaffirms the universal character of human rights,
but qualifies this statement, as follows:
Solemnly adopts the Vienna Declaration and Programme of Action.I
“1. The World Conference on Human Rights reaffirms the solemn
commitment of all States to fulfil their obligations to promote universal
respect for, and observance and protection of, all human rights and
fundamental freedoms for all in accordance with the Charter of the
United Nations, other instruments relating to human rights, and
international law. The universal nature of these rights and freedoms is
beyond question.
(…)
“5. All human rights are universal, indivisible and interdependent and
interrelated. The international community must treat human rights
globally in a fair and equal manner, on the same footing, and with
the same emphasis. While the significance of national and regional
particularities and various historical, cultural and religious backgrounds
must be borne in mind, (…)”11
That will not put an end to this controversial
issue, but makes an important step that may in future be found a for-
mula that could finally reconcile the universality of human rights with
regard to the ethical principles of each culture.
11 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.24+(PART+I).
En?OpenDocument (accessed in 27/11/2008).

35
Despite all precariousness listed in a globalized
world like today, where there are modern means of communication and
transport, the interactions between civilizations have become a cons-
tant, which will mean an exchange of cultural values increasingly, and
to some degree, desirable. What will result is what is expected, a higher
predisposition for tolerance among different peoples regarding the ideal
of protecting human dignity in all its facets. For that, finally, to be es-
tablished a common code of standards, which receive acceptance in all
nations, which would provide a more effective protection of the rights
inherent to the human person, regardless of their racial, historical and
cultural lineage.

36
Bibliography
ADDO, Michael K. – International Law of Human Rights – Ashgate
– 2006.
BAXI, Upendra – The Future of Human Rights – Oxford University
Press – 2nd edition – 2006.
BERTING, Jan – Human Rights in a Pluralist World: individuals and
collectivities – UNESCO – 1990.
FREEMAN, Michael – Human Rights – Polity Press – Cambridge –
2002.
MCLEOD, Ian – Legal Theory – Palgrave Macmillan – 4th edition –
2007.
STEINER, Henry J. and ALSTON, Philip – International Human
Rights in Context – Oxford University Press – 2nd edition – 2000.
http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.
CONF.157.24+(PART+I).En?OpenDocument

37
Essay
Researcher of Law
The researcher of law must take into account policy and social
theory. Legal theory and consequentially legal analysis cannot be
hermetically sealed from contemporary events.
Discuss.
“Man is by nature a political animal.”
(Aristotle, Politics, bk 1, ch 2)
Introduction
The issues involving the research of law have
followed the evolution of the thinking of mankind. These issues have
ranged from the radical positivism to the natural divine law and en-
compass a multitude of intermediate positions. The legal researcher
from every period of history has guided his vision by the dominant
currents and problems of each season.
Thus, this work will make a brief summary of se-
veral of the most prominent thinkers of each season showing the evolution
of the concern of the legal researcher from the question “what is the law?”
to the question “what the law ought to be?”, all focused on the influence
that the researcher of law received or not from his contemporaneous events
and conclude at the end about the proposed topic.
The Logical-Deductive Paradigm from Kelsen
The logical-deductive paradigm considered
by the rationalists, more specifically for Renee Descartes, during much
time led the human thought. The systemic vision of the rationality,
which arrived at the height between century XVII and XX, only admit-
ted to be considered as truth what it could scientifically be demonstra-
ble. The Law, as social science par excellence, followed this trend.

38
That mentality reached the pinnacle with the
positivists, more precisely with Hans Kelsen, who reduced the legal
activity to that one limited to logic-deductive operations, from a hie-
rarchical system of standards created by the state. Kelsen preached ob-
jectivity to the legal system. For example, the judges must refrain from
their subjectivity and values to judge. To sum up, his pure theory of
law: “The theory`s purity lies in the fact that it only describes the law
and attempts to eliminate from the object of this description everything
that is not strictly law.”1
The Rethorical Method – Chaim Perelman
That system has undergone a series of criti-
cisms, among them those carried out by Chaim Perelman. According
to Perelman, the Law should be a creative activity, operating therefore
more in practice than in theory, more in concrete plan than in the
virtual one. It was then a new method, the rhetoric, which is based on
the legacy left by Aristotle2
and widespread by sophistries. As Perelman
puts it: “In dialectical argumentation, it is conceptions considered as
generally accepted that are confronted and contrasted with each other.
Because of that, the dialectical method is the method par excellence.”3
The rhetoric resurfaces as a new paradigm; no
longer bother to keep the old-fashioned axiological neutrality, just im-
porting in the discovery of a single absolute truth, but facts possible,
reasonable and plausible to be applied, as H. L. A. Hart concluded:
“In this part of his work M. Perelman has reached, by an independent
1 MCLEOD, Ian – Legal Theory – Palgrave Macmillan – 4th
edition – 2007 – p. 89.
2 “It is in the Rhetoric that we find Aristotle’s views regarding these and a number of other questions
of positive legislation, because the Rhetoric is extensively concerned with certain problems of actual living
law.” FRIEDRICH, Carl Joachim – The Philosophy of Law in Historical Perspective – The University of
Chicago Press – 2nd
edition – London – 1969 – p. 23.
3 PERELMAN, Chaim – The Idea of Justice and The Problem of Argument – Routledge & Kegan Paul
– London – 1963 – p. 167.

39
route, conclusions similar to those contemporary English philosophers
who have also been critical of both the rationalism and the empiricism
of the past.”4
Hesse X Lassale
Another issue that can be useful to the matter
of what should be taken into account by legal researcher is the discus-
sion between Ferdinand Lassale and Konrad Hesse about the forces on
the formation of a constitution.
Hesse demonstrated that there are intentions
that can be implemented and ensure the normative force of the Cons-
titution, even if subjected to confrontations with the real factors of
power demonstrated by Lassale. The transformation of the legal issues
in power issues could only be possible when these intentions cannot
achieve its goals. Hesse also highlights the desire of constitution, not
flout the significance of historical factors, political and social implica-
tions for the effectiveness of legislative power of the Constitution. The
fundamental law of a State may only be seen as an active force, an is-
sue capable of producing a forceful influence, and effective participant,
when the same is detected a will, a tendency to guide the conduct itself
in accordance with the order therein. It must have a general desire to
set, and not just the will to power, as it always has occurred in most of
the leaders responsible for ensuring the constitutional order.
The New Hermeneutics of Peter Haberle
The systematic method, characterized as
being hermetically sealed, marked the philosophical positivism, did
not corresponded anymore to the perplexities and uncertainties cau-
4 Ibid., p. xi.

40
sed by a world of new and different values, especially when the atro-
cities of Nazism, committed under the protection of the law, showed
that the law is not always fair. Hence, the role of the Court of Nurem-
berg, in the immediate post-war, to decide according to the principles
of universal morality.
Note that the new set of values in a society,
which was marked by deep differences in interests, allowed the emer-
gence of a constitutional theory, which is not based anymore on strict
obedience to the rule legitimately created by the state environment, but
unlike, search, through universal values and common senses brought by
tradition. It sought the point of convergence able to bring consensus to
social conflicts, particularly the process argumentative (new rhetorical).
In this context, in which the interpretative
act is questioned by pluralistic society that the constitutional the-
ory has emerged looking for space in the legitimating of decisions
(in the political and judicial areas) and the establishment of legal
norms. From that point, it was necessary to understand the way
these new agents would take part in the hermeneutic process. Peter
Haberle, in his work “Constitutional Hermeneutics” innovates to
theorize about the execution of a method of constitutional interpre-
tation that allows for the understanding of all public powers, social
groups and citizens involved.
Gustav Radbruch and The Philosophy of Values
Gustav Radbruch is representative of the Phi-
losophy of Values (Wertphilosophie). In the prelude to his philosophical
work, Radbruch presented himself as positivist, campaigning, mainly
with the defense of order and security, for, secondarily, worried about
the observance of justice.
However, Radbruch touched with the taverns
effects caused by the Second World War, mainly in German society,

41
and thus became a natural lawyer. At that time of fluidity in his legal-
philosophical position, Radbruch was disappointed with the legal posi-
tivism, which had left unguarded and completely vulnerable the people
and the lawyers against arbitrary and cruel laws. Thus Radbruch, sup-
planting his original position and embracing law naturalism, provided
a vehement denial of the validity of unjust laws, which supported the
coercion and the vileness of force.
Objecting to the methodological monism of
Hans Kelsen, Radbruch promotes a contemplation of the law by its
values, characterizing the method of contemplation by two guidelines:
the methodological dualism and relativism.
The methodological dualism is reflected in the
distinction between two cosmos of reality as embodied: judgments of
existence and value judgments. The former is evidenced in Being (Sein)
and the latter is explicit in the Duty-Being (Sollen).
Referring to the lineament relativist, Radbru-
ch talks that the various ways of thinking must focus on the diversity of
men and therefore it is impossible to build belief in uniform. Thus, it is
noted the relativity of all judgments.
This tune, Radbruch builds his philosophical
line, listing three ways to face the law: legal realities attitude, which is
related to values, considering the law suit as cultural fact (attitude es-
sential for Science of Law); attitude which considers the law as a value
of culture (main attitude of the Philosophy of Law); and attitude over
the values (theme of Religious Philosophy of Law).
Continuing in a logical order of thought, Gus-
tav Radbruch theorizes on the idea of law. For this notable thinker, the
idea of law is built on the joint analysis of three key words: Justice, End,
and Social Security, as W. Friedmann puts: “Law must thus be con-
ceived as a totality of facts and relations, whose purpose it is to realise
justice. It is the task of legal science to analyse the law as a factual unity

42
of cultural values. It is the task of legal philosophy to analyse the law in
its specific valuations.” 5
The Logic of The Reasonable of Recasens Siches
Recaséns Sicher6
, who developed the method
of “logos of reasonable,” stipulates that the court should handle it in
front of its creative function, and because it has responsibility to the
fulfillment of justice, starting by examining the facts and circumstan-
ces, electing which standard should be applied and what its extension.
The concept of the logic of the reasonable
can be understandable, as a method, in which the application of
legal standards must be guided by criteria estimated, based on prin-
ciples of fairness, i.e. electing the most reasonable solution to the
legal concrete problem.
In using the logic of the Reasonable, the equi-
ty appears as a symptomatic device in solving the cases of gaps and
clashes in the existing rules or the law itself, which often makes the task
of judging, somewhat stormy.
With fairness, the magistrate has a discretiona-
ry power, however, not arbitrary, and thus can appreciate, according to
the logic of the reasonable, interests and facts not determined a priori
by the legislature.
In brief, the lessons offered by Sicher ease the
methodology of formal logic in the interpretation of law, because it is
not possible to accept anymore that the legislature has embedded all
5 FRIEDMANN, W. – Legal Theory – Stevens & Sons Limited – 5th
6 “The Spanish-Mexican jurist Luis Recasens-Siches has been principally concerned with an attempt
to reconcile the objectivity of juridical values, on the basis of Scheler’s and Hartmann’s theories, with the
historicity of juridical ideals.” Ibid., p. 201.

43
the facts of life in abstract legal concepts and norms of law, allowing the
deduction as the technique for excellence in law enforcement, whose
character is marked by human logic, based on fairness and prudence.
The logic of the Reasonable has one special fe-
ature, neither rely on syllogism nor in formal submission of judicial de-
cisions. It is based on prudence, in the sense of fairness and justice. The
logic of the Reasonable presents yet, other features, which sustain its exis-
tence and importance to the legal world. It is constrained by the reality
of the world in which it operates; is impregnated with estimated criteria
or axiological, that distinguishes, decisively, the formal logic. It refers to a
real situation, among others, is governed by reasons of suitability between
the values and purposes, the ends and reality, the ends and the media; the
ends and the effectiveness of resources, and, finally, the logic of reasonable
is guided by the lessons of experience of life and historical experience.
The logic of Reasonable rises to the applica-
tion of legal standards in accordance with principles of reasonableness,
namely choosing the most reasonable solution to the legal problem spe-
cifically, within the social, economic and cultural circumstances invol-
ving the issue, not separated from the legal parameters.
The Utilitarism of Bentham
It is imperative to highlight the contribution
of Jeremy Bentham.7
His theory supports the idea that the interpreta-
tion of the rule should take into account the actual effects produced.
The description of the effects would be based on the utility, being con-
sidered good what brings pleasure, and bad, which causes pain. Com-
plementing this sentence, through the social prism, good and fair is
everything that tends to increase overall happiness.
7 “For Bentham the facts of pleasure and pain were the basis upon which rational laws could be built,
and the object of ethics and politics was the greatest happiness of the greatest number, or the common
good.” FREEMAN, Michael – Human Rights – Polity Press – Cambridge – 2002 – p. 27.

44
To Bentham, the citizen should obey the
rule insofar as the general happiness would come with your assistance
(obedience).8
This happiness or general interest of the community in
general, would be like “an equation” hedonist - a sum of the pleasures
and pains of individuals. Thus, the theory of natural law is replaced
by the utility, and the main significance of this transformation is the
passage from a fictional world to the world of facts (real). It is in the
empirical world, says Bentham, that is possible to verify an action or
institution, its usefulness or not.
Conclusion
In summary, it is possible to conclude that the
legal research is first and foremost a creative activity. Throughout this
process is therefore a creation of law. It is a process in which enter hu-
man will, in which the interpreter seeks to determine the exact content
of words and impute meaning to a standard.
Accordingly, it is a choice between multiple
options. The activity mainly searches to rebuild the normative content
and explain the norm, especially in light of a particular case. It can be
said also that researching is an activity designed to explain the meaning
of a term, but may also be the result of such activity, so it cannot be
hermetically sealed from contemporary events and it must take into
account policies and social theories.
8 “The object of Bentham’s psychology is, therefore, not proof but advocacy. He commends the
principle of utility as a moral principle which, he thinks, any reader will find preferable to any other, given
the truth of his assertion about human nature.” HARRIS, J. W. – Legal Philosophies – Butterworths – 2nd

45
Bibliography
FREEMAN, Michael – Human Rights – Polity Press – Cambridge –
2002.
FRIEDRICH, Carl Joachim – The Philosophy of Law in Historical
Perspective – The University of Chicago Press – 2nd edition – London
– 1969.
FRIEDMANN, W. – Legal Theory – Stevens & Sons Limited – 5th
edition – London – 1967.
HARRIS, J. W. – Legal Philosophies – Butterworths – 2nd edition –
London – 1997.
MCLEOD, Ian – Legal Theory – Palgrave Macmillan – 4th edition –
2007.
PERELMAN, Chaim – The Idea of Justice and The Problem of
Argument – Routledge & Kegan Paul – London – 1963.

47
Essay
Globalization and Transnational Religious
Actors (TRAs)
How has Globalization influenced the Growth of Transnational
Religious Actors (TRAs). Illustrate your answer with two examples
of TRAs.
“Civilization begins with order,
grows with liberty, and dies with chaos.”
(Will Durant: US historian 1885 – 1981)
Introduction
This essay will examine how globalization has
influenced the growth of Transnational Religious Actors (TRAs). To
achieve this aim, it will be explained the recent resurgence of religions,
how it has influenced the role of globalization and why and how TRA
has utilized it to grow and spread their ideals and ideas.
The second half of the twentieth century,
especially the last twenty-five years, was the period of the history of
mankind in which religion was reintroduced in the international poli-
tics. The world has witnessed the resurgence of religion on a global and
unprecedented scale.
One of the most prominent example of this
reintroduction happened on February 1989, when Salman Rushdie was
condemned to death by Ayatollah Khomeini because of his book: The
Satanic Verses. To protect the British author, the British government
put him into hiding with a police body guarding. On November of
that same year by coincidence or not the Berlin Wall fell. It was the

48
crepuscule of the Cold War Era and the beginning of ‘The Clash of
Civilization’1
Era.
Indeed, it is extremely difficult to ignore that
religious influence have played a central part in shaping the world
throughout its history. The emergence and maintenance of commu-
nities of religious believers has been an important factor in the forma-
tion of states, empires and civilizations, as it is possible to see in the
past with the survival of the Roman Empire given by the Christianity
Church after 4th
Century, and currently the support given by Muslim
authorities to Iran government.
Nowadays, there is another key element that
has played an important role in this subject, accelerating and facilita-
ting the process of dynamic interaction between people, cultures and
societies: it is the globalization.
The Role of Globalization
Firstly, it is important to define what globali-
zation is. It refers “to a set of technological process affecting the world
economy, telecommunications, information technology, travel, and
growing economic interdependence between states and peoples that is
altering our sense of time and space, and is creating the possibility that
the world will become a single social space.”2
1 The US academic, Samuel Huntington, first presented his ‘clash of civilization’ thesis in an article
published in 1993, followed by a book in 1996. Huntington claims that in the post-Cold War era most
conflicts will be between several civilizations that are significantly informed by religion, including Islamic
and Confucian countries. In particular, the new fight is between the (Christian) West and the Muslim
– especially Arab – world. HAYNES, Jeffrey – An Introduction to International Relations and Religion –
Pearson Education Limited – 2007, p. 5.
2 THOMAS, Scott M. – The Global Resurgence of Religion and the Transformation of International
Relations – Palgrave Macmillan – 2005, p. 29.

49
Globalization has two essential aspects. It me-
ans a progressive homogenization of all culture and at the same time
change the context in which particular culture exist, implying transfor-
mation but not the disappearance of separate and recognizable identities.
Before the resurgence of religion, economics
dominated the discussion of process of globalization. The dominance
of economic issues seemed to create a great global market, in which the
discussion of the place of religion within this discourse was rare.
Now, things are changing. Religion has emer-
ged and has been considered so important in human history that some
scholars have assured that “the idea that religion is ‘the original globa-
lizer’ destabilizes the more common assumption that markets are the
primary force for globalization. It also stands in contrast to the assump-
tion that globalization abolishes frontiers and leads to homogeneity.” 3
There are many theories that try to explain the
current global resurgence of religion. Some point out to a crisis of moder-
nity and assure that the deeper disillusion with the reduction of the world
to what can be perceived and controlled through reason and science is the
main reason to the currently rise of religion, as follows: “A consequence
is that, around the globe, especially in parts of the developing world that
have missed out on many of the benefits of globalization, many people
are said to feel both disoriented and troubled, and some return to religion
as a way of dealing with associated existential angst.” 4
Other scholars prefer to say “the global resur-
gence of religion is the result of the failure of the modernizing, secular
state to produce both democracy and development in the Third World.
(...) Dissatisfaction with the project of the postcolonial secular state and
the conflict between religious nationalism and secular nationalism was
3 WOODHEAD, Linda – Religion in the Modern World – Routledge – London – 2005, p. 299.
4 HAYNES, Jeffrey – Op.cit., p. 159 and 160.

50
one of the most important developments in the Third World politics
in the 1990s.” 5
In this context, there is a key component that
facilitates the religion resurgence: the identity. Religion “has been un-
derstood in International Relations as the main source of individual
and social identity. This approach believes religion is one of the basic
sources of differentiation between groups. A system of religious beliefs
provides followers with the main source of their identity.” 6
In other words, the revitalization of religion
is a way of asserting a particular identity, and it is a prime method of
competing for power and influence in the global system.
Independently of the real cause(s) of the reli-
gion resurgence, what is possible to assure is that the idea of religious
identity has changed the old fashioned notion of citizen to a new one,
called “citizen pilgrim”. In other words, citizens are not only related to
a country anymore, but also in many cases to a faith.
This new kind of citizen is a relevant key to
explain the transnational character of the religions. In other words, re-
ligions have acted in international level in the same way they act in
domestic level, because they currently have transnational pilgrims. Ho-
wever, it is not a new phenomenon; universalistic religions have had a
transnational element since their creation, especially the ones that come
from the Book (Christianity, Judaism and Islam), as “religion has often
been a natural accompaniment of conquest and colonization. Religion
can legitimate the power of conquering people over their new subject,
and serve as a resource in the imposition of power.” 7
5 PETITO, Fabio and HATZOPOULOS, Pavlos – Religion in International Relations: The Return
from Exile – Palgrave Macmillan – 2003, p. 22.
6 DARK, K. R. – Religion and International Relations – Palgrave – 2000, p. 4.
7 WOODHEAD, Linda – Op. cit., p. 302.

51
Furthermore, globalization is highlighting and
accelerating the transnational character of religions, because instead
of being tied to the state boundaries, religions amplify their acts and
performance outside of each state, using the ways, tools and mechanisms
given by a global society. Indeed, individuals are increasingly their ability
to communicate with each other beyond state and cultural boundaries
through advances in information and communication technology. In
this context, being transnational means that religious can act beyond
any boundaries or state limitation.
Indeed, globalization has facilitated a
constantly evolving role of religion in international relations and it has
a function, “rapidly dissolving the social and economic barrier between
states, transforming the world’s diverse population into a uniformed
global market (…)” 8
Nevertheless, it is important to say that
globalization is not a single phenomenon, but a wide-ranging one, and
it must take into account not only economic and technologic issues,
but also cultural and political aspects, as follows:
“These quotations collectively emphasize
that globalization is a controversial and
multifaceted process underpinned by significant
intensification of global interconnectedness.
They point to the idea that globalization implies
diminution of the significance of territorial
boundaries and, theoretically, state-dominated
structures and process.” 9
In other words, those interconnections can
affect and encourage people with an overall implication, hard to analyze
8 THOMAS, Scott M. – Op. cit., p. 29.
9 HAYNES, Jeffrey – Op. cit., p. 68.

52
and identify the real impact on daily life. It means that people, cultu-
res, societies and civilizations previously more or less isolated from one
another are now in regular and almost unavoidable contact. In addi-
tion, “globalization – that is, the historically unprecedented current
global changes characterized by swift urbanization, industrialization,
environment damage, and significant technological, economic and
political changes – has impacted upon religion everywhere, by un-
dermining traditional value systems, including in many cases those
linked to religious beliefs.” 10
Even countries’ governments are experiencing
challenges to their ability to govern as a consequence of globalization.
They have seen a growing competition for governance, as there has been
“an emerging system of multilayered global and regional governance,
reflected in the growth of intergovernmental organization (IGO) at
both regional and global levels.” 11
For the first time in about three and a half cen-
turies – since the Treaty of Westphalia (1648),12
the pillars of an order
shall be questioned by deep changes in the pattern of the system. It is
the classic crisis of the international order because of the intensification
of interdependence – due to globalization - increasing the importance
of the role of international actors (NGOs, transnational corporations,
groups of individuals, etc.) and the changes in International Relations.
10 Ibid, p. 159 and 160.
11 Ibid, p. 70.
12 The so-called Treat or Peace of Westphalia is considered the first modern diplomatic congress and
initiated a new order in central Europe based on the concept of state sovereignty. It is also known as the
Treaties of Münster and Osnabrück, and means a series of treaties that ended the Thirty Years War and
officially recognized the United Provinces and Switzerland. The Hispano-Flemish Treaty, which ended
the War of the Eighty Years, was signed on January 30, 1648 (in Münster). The other treaty was signed
on October 24, 1648 in Osnabrück, between Fernando III, Holy Roman Emperor-Germanic, the other
German princes, France and Sweden, ending the conflict between these two powers and the Holy Empire.
The Treaty of the Pyrenees in 1659, which gave end to the war between France and Spain, it is often
considered part of the Peace of Westphalia.

53
The classical international system until now
has been essentially constructed on the basis of territorially defined
states interacting with each other, as the unique actors, with a well
defined secular roots.
That crisis, although, can be explained in
order as a result of the not always easy relationship between the classical
international system and the performance of new international actors,
represented especially by the Transnational Religious Actors (TRAs).
The TRAs are groups of people that try to
spread their beliefs using many ways and, as the name suggest, they
have a deep religious and transnational nature and follows the features
of the current transnational civil societies, as follows:
“. is an expression of ‘soft power’ 13
;
. focuses attention on development of
regularized, often expanding, interactions that
occur between individuals and groups across
national boundaries;
. involves a situation where at least one
participant actor in such interaction is a non-
state actor;
. unlike domestic civil society, is not territorially fixed;
. has a field of action that is fluid;
. does not operate on behalf of a national
government.” 14
13 The concept of ‘soft power’ refers to the capability of a political body, often but not necessarily a
state, to influence what other entities do through direct or indirect, often cultural or ideological, influence
and encouragement. The idea of ‘soft power’ works from the premise that certain attributes – such as,
culture, values, and ideas – represent different, not necessarily lesser, forms of influence, compared to hard
power – that is, more direct, more forceful measures typically involving armed force or economic coercion.
HAYNES, Jeffrey – Op. cit., p. 40.
14 Ibid, p. 128.

54
To sum up, it is possible to say that:
“The way in which globalization has facilitated
transnational religion, however, is better
described as the formation of ‘transnational
religious subcultures’.” 15
When religion is conceived of as a transnatio-
nal idea, it is easier to locate Transnational Religious Actors in the in-
ternational scenario.
Transnational Religious Actors (TRAs)
Due to globalization, transnational networks
are a reality all over the world, and each of them defends theirs ideals
and ideas. These “ideas represent soft power in international relations
because they appeal to large numbers of people around the world who,
by virtue of their collective effort, may seek to influence outcomes in
the directions they would like to see.” 16
Transnational religion provides the basis for
transnational actors, and they can influence international relations
through the use of force or the power of ideas.
There are many examples of transnational re-
ligious societies that act in international order by the TRA. One of the
most successful is the ‘Christian networks’.
Due to the activities of the Christendom so-
cieties, at the beginning represented by the Roman Catholic Church
and executed by Spain and Portugal, there was the conquest of America
with an amazing expansion of their power with significant impact on
15 DARK, K. R. – Op. cit., p. 6 and 7.
16 HAYNES, Jeffrey – Op. cit., p. 125.

55
international order with the establishment of European colonies. Cur-
rently, the Roman Catholic Church’s transnational activities are focused
on human rights issues, especially on the decades that followed the Va-
tican II in 1965. As an example of this new trend, it is possible to quote
the role of the Catholic Organization Sant’Egidio in ending the civil
war in Mozambique in 1992.
Another significant example of TRA is the Or-
ganization of Islamic Conference that follows an agenda of assistan-
ce, unity and solidarity among Muslim people, especially in areas of
conflicts, as Palestine and Chechnya. Its main purpose is “to promote
Islamic solidarity and strengthen cooperation among member states in
the social, cultural, scientific, political and economic fields. The OIC,
an organization of nearly 60 Muslim countries, sees itself as a supporter
of the established international order. The organization sees threats to
international order as a threat to the international society of states and,
as a result, it seeks to develop and sustain good relations with all states,
including non-Muslim ones.” 17
On the other hand, it is possible to assume
that there are some TRA that play a negative role in the world, trying
to impose their way by the use of violence. One of the most well known
acts of those groups is the attack against some strategic points of the
USA, called the 9/11 attacks. Paradoxically is that the terrorists used
the globalization to spread their ideals, as said: “It seems obvious that
9/11 was calculated not simply to wreak terrible destruction but also to
create a global media spectacle” 18
and at the same time, globalization
was one of the reasons of their fight against West culture.
In this context, TRA and religion may be a
part of the solution as well as the problem of international conflict,
especially when they highlight the differences between the civilizations,
creating the ‘clash of civilization’.
17 HAYNES, Jeffrey – Ibid, p. 145.
18 Ibid, p. 172 and 173.

56
The Clash of Civilizations and the Role of TRAs
In most countries, the decolonization after
1945 was followed by the import of policies with a foreign ideological
inspiration. With more or less nationalism, from Morocco to Indonesia,
excluding the Gulf monarchies, the revenue was, in essence, imported,
and religion was removed from political power.
However, a new period was emerging. And it
came to succeed the “Cold War” Era. At first, scholars thought that a
new international order shaped by capitalism would create a new and
universal international system, as follows:
“If the cold war period was marked by a clear and
sharp divide between opposing socioeconomic
systems operating by radical different standards,
then the pos-cold war order could readily
be characterized as one where states were
compelled to play by a single set of rules within
a increasingly competitive world economy. The
term most frequently used to describe this new
order was globalization, a notion that had barely
been used regularly to define a apparently new
system of international relations.” 19
In spite of all the expectation surrounding the
post ‘Cold War’ Era, the new period that emerged was the ‘Clash of
Civilization Era, which is mark by the opposing view between ‘the West
Society’ and ‘the Islamic Society’.
There are many theories and books trying to
explain and understand this subject. Perhaps, the genesis of the matter is
19 BAYLIS, John; SMITH, Steve; OWENS, Patricia – The Globalization of World Politics: an
introduction to International Relations – Oxford University Press – 4th
edition – 2008, p. 74.

57
the way that the two systems (that is, secular and religious governments)
interpret the world. In general, it is possible to assure that Islam has been
seen as a solution to the vices of life and governments, and a safe road
to eradicate poverty and corruption. One clear example of this kind
of interpretation is the Iranian Revolution of 1979, which “was the
beginning of the Islamic resurgence, and the most successful example of
the politicization of Islam. Since then, there has been an interpretation
of history, in which the glorious imperial past is associated with the
presence of religion in politics and the decline appears as a result of
political marginalization of Islam. In other words, the secular models
are the cause of the problem and religion is part of the solution.” 20
On the other hand, in secular countries the
perception is exactly the opposite. The secularization, which began
with Renaissance and developed by the Enlightenment, is associated
with democracy, prosperity and freedom of speech. “Although religion
has played an important role in the consolidation of a virtuous public
ethics, essentially, it should refer to the private sphere. At least, it is
widely accepted the absolute separation between the political authority
and religious power.” 21
These historical opposing experiences may
have given the radical nature of many Islamic movements, as Al-Qaeda
in Afghanistan and Hamas in Gaza. The fact is that Islamic radical mo-
vements are in opposition and fight against the established power, using
violence, strengthening its radical nature, and they are closely linked to
the global resurgence of the religion.
These historical opposing views are also reflec-
ted in the way that TRAs act throughout the world. The radical fun-
damentalist TRAs tend to act using force. This is easier to identify in
the way some Islamic groups act, as Al Qaeda, and the violence of their
20 Center of Political Studies and International Relations (CEPRI) – The Islam and Democracy – João
Marques de Almeida. http://ceprilusiada.blogspot.com/2006/05/o-islo-e-democracia.html.
21 Ibid.

58
behavior have roots, as some scholars suggest, due to their exclusion to
the benefits of globalization for reasons of culture, history or geography.
Other excellent examples to be quoted are the
Iranian Revolution of 1979 and the role played by Hamas in relation
to Israel. The former transformed a secular country into an Islamic
fundamentalist society. This emergence helped to stimulate an increase
expression of dissatisfaction against Western principles and values and
international order in the Islamic world. The latter has used all the tools
and ways of violence to destabilize Israel government and destroy its state.
Both of those cases, especially Hamas,
demonstrate how globalization has been important to maintain alive
their ideal of spreading their beliefs and receiving support to obtain
their aims, specially through their Islamic networks, spread around
the world. 22
In addition, there is another key element
that facilitates the spread of intolerance and anger – the failed state,
which means a state with a weak or ineffective government, and with
a widespread high level of corruption and criminality. A clear example
of it is Pakistan that before American invasion had facilitated the
formation and development of Islamic terrorist organizations.
This kind of radical TRAs seems to have, as all
kind of fundamentalism movement, some features as: They assume the
presumption that Islam is the perfect social system, take advantages of
failed state or dictatorial systems and try to impose their ideal by terror,
force and violence.
22 http://www.justice.gov.il/NR/rdonlyres/141B6495-AB12-4CC6-A6D1-46CDF6EBF8EA/0/418.
doc by Matthew Levitt - “A November 2001 FBI memorandum on the Holy Land Foundation for
Relief and Development -- the primary Hamas front organization in the United States until its closure in
December 2001 -- noted that Hamas “benevolent programs” like the Hebron Muslim Youth Association
“are used to enhance its image and earn goodwill in the Palestinian community.” Indeed, the FBI cited
electronic surveillance of a 1993 Hamas meeting in Philadelphia where Hamas fundraisers in the United
States decided that “most or almost all” funds collected from that point on ‘should be directed to enhance
the Islamic Resistance Movement [Hamas] and to weaken the self-rule government [Palestinian Authority].’
To that end, the Holy Land Foundation funded zakat committees tied to Hamas.”

59
To sum up, it is possible to adopt a conclusion
that many events have encouraged the transnational religious actors to
give priority to act in international scenario and this is due to many
reasons, as the events that followed the end of Cold War, but mainly
as consequence of the globalization, as follows: “This reflected not only
generally increased involvement of religion in international relations but
also highlighted how easily domestic issues can ‘spill over’ to become
issue of regional or international concern.” 23
Conclusion
As a conclusion, it is clear that globalization
has had an amazing influence in the growth of Transnational Religious
Actor, and due to this, it is easier to observe better the two sides of the
same coin.
At one side, with globalization, it is possible
to see the positive side of the TRA’s work, as the emergence of global
human rights and peacemaker groups that protect the interests of those
often victimized by the same globalization. Furthermore, with the cre-
ation of organizations such as the Catholic Organization Sant’Egidio,
OIC, etc., whether effective or not, has increased means of tolerance
between cultures and religions.
At the other side, globalization has highlighted
the intolerance and fanatism of some groups, as Al-Qaeda, especially
after the events of 9/11, which has transformed the way states will act
in a new international order.
23 HAYNES, Jeffrey – Religion and International Order: Transnational Religious Actors - http://www.
allacademic.com//meta/p_mla_apa_research_citation/3/1/2/4/5/pages312457/p312457-3.php

60
Bibliography
ALDRIDGE, Alan – Religion in the Contemporary World – Polity
Press – 2005.
BAYLIS, John; SMITH, Steve; OWENS, Patricia – The Globalization
of World Politics: an introduction to International Relations – Oxford
University Press – 4th edition – 2008.
BRUCE, Steve – Politics and Religion – Polity Press – 2003.
DARK, K. R. – Religion and International Relations – Palgrave – 2000.
HAYNES, Jeffrey – An Introduction to International Relations and
Religion – Pearson Education Limited – 2007.
MAINUDDIN, Rolin G. – Religion and Politics in the Developing
World: Explosive Interaction – Ashgate – 2003.
PETITO, Fabio and HATZOPOULOS, Pavlos – Religion in
International Relations: The Return from Exile – Palgrave Macmillan
– 2003.
STEINER, Henry J. and ALSTON, Philip – International Human
Rights in Context: law, politics, morals – Oxford University Press –
2nd edition – 2000.
THOMAS, Scott M.- The Global Resurgence of Religion and the
Transformation of International Relations – Palgrave Macmillan –
2005.
WOODHEAD, Linda – Religion in the Modern World – Routledge
– London – 2005.

61
2008/2009 Israel Gaza Conflict
Content
Introduction
United Nations Charter
Background of the Principles of War
Civilian Protection Principle
Necessity and Proportionality Principles
Authorized Use of Force
The Right of Self-Defense
Preventive Self-Defense
UN Security Council
Partial Conclusions
Nuclear War – Israel v Iran?
Israeli-Iranian Nuclear Deterrence
Main Determinants Affecting Stability of an Israeli-Iranian
Nuclear Balance
The Israeli Nuclear Posture: Effects of Iranian Nuclearization
Measures to Enhance Stability
Conclusion
Appendix
Bibliography

62
* The topics “Introduction, United Nations Charter, Background of
the Principles of War, Civilian Protection Principle, Necessity and
Proportionality Principles, Authorized Use of Force, The Right of Self-
Defense, Preventive Self-Defense, UN Security Council, 2008/2009
Israel Gaza Conflict and Partial Conclusions” were done by Jose
Anastácio de Sousa Aguiar.
*The topics “Nuclear War – Israel v Iran?, Israeli-Iranian Nuclear
Deterrence, Main Determinants Affecting Stability of an Israeli-
Iranian Nuclear Balance, The Israeli Nuclear Posture: Effects of
Iranian Nuclearization and Measures to Enhance Stability” were done
by Razim Razev.
* The topic “Conclusion” was done by Jose Anastácio e Razim.

63
“I believe a massive and united international effort is
required to help Palestinians achieve statehood and
Israel and Palestine to live side by side in peace and security.
I am determined than ever to see this achieved.”
Secretary-General Ban Ki-moon
at press conference in Gaza –
20 January 2009.
Introduction
This essay will examine the conflict in Gaza
that involves the State of Israel and people of Palestine. In this context,
it will be focused two key points: the legality of the use of force and
the behavior in the conflict itself. To achieve this aim, it will be showed
briefly the role of United Nations Charter, the background of the
principles of war, the cases in which the use of force is authorized, the
right of self-defense, the resolutions of the United Nations (Security
Council, Human Rights Council and General Assembly) on the conflict
and the conflict itself. At the end, it will examine a possible scenario
involving an eventual conflict between Israel and Iran.
For centuries mankind has used the appeal of
war to placate their differences. This attitude has brought considerable
suffering to humans. Since twentieth century has increased the concern
of nations and their leaders to find proper formulas for overcoming
the conflicts without the need of war, especially after the events like
the invasion of Poland and ex-Soviet Union in the Second World
War, as Michael Howard (1979)1
puts forward “with the intention of
1 HOWARD, Michael (1979) Restraints on War: studies in the limitation of armed conflict Oxford
University Press, p. 6.

64
destroying their societies and reconstructing them as German colonies”.
This new attitude guided the creation of the United Nations and has
guided the most recent conflicts.
Tired of war, especially concerning with the
destruction caused by the Second World War, the leaders of the world,
representing their countries signed on 26 June 1945, in San Francisco,
USA, the Charter of the United Nations that has on its preamble, as
one of the main concerns “to save succeeding generations from the
scourge of war, which twice in our life time has brought untold sorrow
to mankind”.2
United Nations Charter
The World War II changed the world in
many aspects. One of them was the almost universal concern to try to
avoid other wars. This was put as paramount in the UN Charter: “All
Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of
the United Nations.”3
This rule is extremely important especially, as
Peter Malanczuk (1997)4
assures that it “is of universal validity; even
the few states which are not members of the United Nations are bound by
it because it is also a rule of customary international law.”
Some principles have been developed since
then trying to reinforce peaceful co-existence, as Ian Brownlie (1968)5
suggests that there are five principles: 1. Mutual respect for each
2 Charter of the United Nations (1945), First statement of the Preamble.
3 Charter of the United Nations (1945), Article 2, paragraph 4.
4 MALANCZUK, Peter (1997) Akehurst’s Modern Introduction to International Law 7th
ed. Routledge,
p. 309.
5 BROWNLIE, Ian (1968) International Law and the Use of Force by States Oxford University Press, p.
117-118.

65
other’s territorial integrity and sovereignty; 2. Non-aggression; 3. Non-
interference in each other’s internal affairs for any reason of economic,
political, or ideological character; 4. Equality and mutual benefit, and
5.Peaceful coexistence.
Background of the Principles of War
The traditional law of war usually makes
the distinction between jus ad bellum and jus in bellum, as Michael
Howard (1979)6
affirms “the former dealing with recourse to war and
the latter with conduct in warfare. The distinction took some time to
emerge. It was impeded in the medieval period by the theological-legal
doctrine of the ‘just war’. Under this doctrine the major emphasis was
laid upon of the authority of the Prince, the justness of the cause for
which there had been resort to war and the ‘right intention’ of the
individual participants.”
In the context of the history of mankind, some
scholar agree that “just war” were those that are waged to redress a
wrong suffered. And based on this idea some principles have emerged
as a condition for justly resorting to war (jus ad bellum), as Howard
Hensel (2005)7
puts forward:
“(1) Legitimacy: only legitimate, sovereign
authorities can authorize the resort of armed
conflict;
(2) Just Cause: force may be used only to secure
just goals;
(3) Proportionality: the positive benefits create
by a better peace following the conclusion of the
6 HOWARD, Michael (1979) Op. cit., p. 135.
7 HENSEL, Howard M. (2005) The Law of Armed Conflict: constraints on the contemporary use of
military force Ashgate, p. ix and x.

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