4
12.
On this eve of the XXIst century, there persists a décalage [cf.] between the
demands of protection in a "globalized" world and the means of protection in an
atomized world. The so-called "globalization", I allow myself to insist, has not yet
encompassed the means of protection of the human being. Regrettably, the universal
juridical conscience - in which I firmly believe11 - does not yet appear to have
awakened sufficiently either for the necessity of the conceptual development of the
international responsibility other the purely of the State12. This latter ought, thus, to
respond for the consequences of the practical application of the norms and public
policies that it adopts in the matter of migration, and in particular of the procedures
of deportations and expulsions.
III.
Uprootedness and Human Rights: The Juridical Nature of the
Provisional Measures of Protection.
13.
Having pointed out, in relation to the uprootedness, the complementary
aspects of its global dimension and of the State responsibility, may I move on to the
third and last aspect of the problem, pertaining to its place in the context of the
provisional measures of protection. A special emphasis, in tackling the tragedy of
uprootedness, ought to fall on the prevention13, of which the very adoption of
provisional measures of protection in the framework of the International Law of
Human Rights constitutes an eloquent manifestation. The intertemporal dimension is
thus manifested in the phenomenon of uprootedness as well as in the application of
provisional measures of protection.
14.
Likewise, the indivisibilidad of all human rights is manifested in the
phenomenon of uprootedness (cf. supra) as well as in the application of provisional
measures of protection. It being so, there is, juridically and epistemologically, no
impediment at all for such measures, which so far have been applied by the InterAmerican Court in relation to the fundamental rights to life and to personal integrity
(Articles 4 and 5 of the American Convention on Human Rights), to be also applied in
relation to other rights protected by the American Convention. All those rights being
interrelated, it is perfectly possible, in my understanding, to order provisional
11
.
If it did not exist, one would not have, in the past, e.g., abolished the international trade of
slaves, abandoned the practice of secret treaties, prohibited war as an instrument of foreign policy, and
put and end to colonialism with the crystallization and the exercise of the right of self-determination of
peoples; if it did not exist, one would not have, in our times, e.g., affirmed the existence of imperative
norms of international law (jus cogens) and of obligations erga omnes of protection of the human being,
and configured a true contemporary international regime against torture, forced disappearances of
persons, and summary, extra-legal and arbitrary executions. Such as I have been pondering for already
some time (and more recently in my essay "A Emancipação do Ser Humano como Sujeito do Direito
Internacional e os Limites da Razão de Estado", in Quem Está Escrevendo o Futuro? 25 Textos para o
Século XXI, Brasília, Ed. Letraviva, 2000, pp. 99-112), it is due to this universal juridical conscience that
international law has been transformed, from a legal order of pure regulation (as in the past) into a new
corpus juris of liberation of the human being.
12
.
As it can be inferred from the hesitations and uncertainties of the voluminous work on the
matter, throughout so many years, of the International Law Commission of the United Nations.
13
.
In 1997, the United Nations High-commissioner for Human Rights observed that, in the context
of mass exoduses and human rights, "the term `prevention' ought not to be interpreted in the sense of
impeding that the persons abandon a zone or country but rather in the sense of impeding that the
situation of human rights is deteriorated to such an extent that the abandonment is the only option and
also of impeding (...) the deliberate adoption of measures to displace by force a great number of persons,
such as mass expulsions, internal displacements and forced eviction, resettlement or repatriation". U.N.,
Derechos Humanos y Éxodos en Masa - Informe del Alto Comisionado para los Derechos Humanos,
document E/CN.4/1997/42, of 14.01.1997, p. 4, par. 8.