The New Paths of Fundamental Rights in the 21st Century: Globalization and Knowledge in a Digital Age as a Proposal

The New Paths of Fundamental Rights in the 21st Century: Globalization and Knowledge in a Digital Age as a Proposal

Fátima Monteiro Pacheco (Instituto Superior de Contabilidade e Administração do Porto (ISCAP), Portugal) and Dora Resende Alves (Universidade Portucalense Infante D. Henrique, Portugal)
DOI: 10.4018/978-1-5225-8350-9.ch001

Abstract

The protection of fundamental rights is one of the essential elements of European identity. Thus, knowledge of the law is crucial for the realization and guarantee of fundamental rights: knowing the law must be the first of the fundamental rights that assist us. Despite the abundance of declarative texts, the lack of identification and visibility and the lack of knowledge about the gracious and contentious ways, continue to be barriers to the full affirmation of those rights. The authors present a review on the legal structure of this novel space in which we move: a common space without borders, a space of democracy, an area of freedom, security, and multiculturality. Elencare which rights to citizens and how to access them intends to give shape to a future portal of enlightenment. The approach will be tripartised by the portuguese constitutional system, the European Convention on Human Rights and the European Union.
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Introduction And Proposal: A New Format For The Declarations Of Rights

The authors wish to emphasize here that the fundamental rights, in reality of the Portuguese legal system, by virtue of the principle of assimilation of foreigners and stateless persons, are intended to protect portuguese citizens resident in the national territory and resident abroad, although they contemplate a special treatment for european citizens. The principle of universalism attributed to all individuals, just because they are, rights and duties. This principle is enshrined in article 12 Constitution of the Portuguese Republic (CPR) of 1976, which states that fundamental rights are 'rights of all'. It is intended a brief approach to the universalist perspective of fundamental rights, defending the existence of a tendency to universalize respect for human dignity as the basis of all human rights (Martins, 2010, pp. 526-537).

Furthermore, the functioning of a democratic and pluralist society requires the guaranteeing momentum of the law, and therefore international law and European Union law have come to broaden the block of fundamentality and strengthen the protective capacity of the legal system. Thus, where national jurisdictions do not fully protect, it is essential to know if, where, and how the citizen can obtain protection. For this reason, there’s a believe that judicial integration and the emergence of the European judicial area implies that the populations are aware of the content of the European Convention on Human Rights (ECHR) and of the Charter of Fundamental Rights of the European Union (CFREU) and understand the functioning of its supervisory mechanisms.

To point out, the communicational age we live in also means that justice can respond to the new challenges of technological evolution. Starting from this reality, what moved the authors to the elaboration of this work - necessarily brief - was the desire to provide the community with information about the current constitutional system and about the systems of regional protection of fundamental rights that citizens can enjoy through the use digital tools and access to platforms for dissemination and clarification. It is already an uncontroversial fact that technology and information technology enable solutions in a digital environment that enable the sharing of information and the dissemination of knowledge in order to allow access to the law by all those who are part of this planning.

It is in this context that the work intends to bring the proposal studied to a new “era of Rights”, by means of the creation of a digital platform with informative content, accompanied by several links directed to the Constitution of the Portuguese Republic; for the ECHR and European Union (EU) and CFREU institutional treaties, accompanied by small clarifications on the content and functions of each diploma. Here stands a believe that the construction of a portal of fundamental rights would be an element of true democracy in the service of equality of citizens. If such a portal were to be realized, it would be a further step towards enabling the invocation of such rights by private individuals, as well as a further step in the institutionalization of human rights protection systems: the digitization phase.

For the moment, and because it is an ambition that can not be achieved here, a brief summary of the legal structure of this novel space in which we are moving is presented: a common space without borders, a space of democracy, a space of freedom, security and multiculturalism, which - necessarily - also goes through the fundamental rights of individuals. It is the desideratum that moves this work and which intends to give shape to a future portal of enlightenment, under the terms referred to above.

Such an approach will necessarily be tripartite: a first point will be devoted to the portuguese constitutional system; a second point will refer to the subsidiary regional system established by ECHR; finally, a third point will be devoted to the protection system experienced by the European Union. Let us then see, in a necessarily abbreviated form, each of the mentioned moments, reiterating the importance of its digital application.

Key Terms in this Chapter

Fundamental Rights: A set of rights recognized and guaranteed by higher norms of the legal systems or coming from other sources, which contain values transcendent to the own material constituent power, considered worthy of protection by a certain normative system. They consecrate subjective and basic positions of consecrated and established individuals at the constitutional, formal and material levels, designating the effective rights of the people before a concrete political organization. The term fundamental rights applies to internal orders. Respect for the fundamental rights is one of the most identifiable signs of a given legal order.

EU: An international entity set up and created by the EU Treaty in 1992 which led to a “new phase in the process of European integration initiated with the institution of the European Communities”, which aimed at deepening economic integration and creating the conditions for future political integration of Europe. Signed at Maastricht, the new treaty was based on the European Communities (supplemented by the policies and forms of cooperation then instituted). The EEC, established in 1957 by the TR, was renamed EC. This, in turn, coexisted with the ECSC (1951) AU26: The in-text citation "ECSC (1951)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. and the EAEC (1957) AU27: The in-text citation "EAEC (1957)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. . The three treaties formed the Communities and the EU, although autonomous, was not intended to replace them. As it is a single act of International Law, the TEU was composed of three parts with distinct intentions: it instituted the European Union; regulated the Common Foreign and Security Policy (CFSP); and the provisions relating to justice and home affairs (CJAI). On the other hand, it introduced changes to the institutional treaties by inserting diplomatic clauses in the title dedicated to the final provisions. The EU was structured in three distinct pillars (Communities, CFSP, and CJAI), with two logics of operation, corresponding to integrationist (community pillar) and cooperative (intergovernmental pillars) methods.

Treaty of Lisbon: It is a treaty of continuity, although it introduces a very important body of amendments to previous treaties. Entering into force on 1 December 2009, it opens a 'new stage in the process of creating an ever closer union among the peoples of Europe'. By maintaining the international nature of the constituent treaties and allowing for the coexistence of different legal regimes, this treaty amended the TEU and the TEC, extinguishing the European Community. The reform of the Treaties has given rise to two new international texts, with the same legal value, on the basis of which the new EU Statute is framed. The Union is founded on the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU), replacing and succeeding the European Community. The Treaty establishing the European Atomic Energy Community, which was established in 1957, is not part of the original law, but has not changed since that time.

Constitution: Maximum document of a political community, with two basic functions: the need to order, limit, and legitimize political power (social pact); and to recognize, constitutionalize and guarantee the rights and freedoms of individuals (declaration of rights). Through constitutions the political community defines its common goals, creates its institutions, establishes the limits to the exercise of powers and reveals its system of values. The current functions of the Constitution are the construction of the political and legal unity of a State. In this sense, the constitution is intrinsic to the ontic figure of sovereign state. The Constitutions legitimize themselves in a substantive and formal plane: conditioning the power to the pursuit of the ends and to the respect of principles (among them the one of the guarantees of the fundamental rights) and, linking its exercise to the observance of democratic rules.

European Law: Law of International Organizations with a European geographical scope, with special emphasis on the Council of Europe, in particular with regard to the application of the ECHR. The EU law should be included in “European law” in its broadest sense, ie the legal systems produced and coexisting on the European continent. It is not unusual for the small and large European designation as regards fundamental rights. The first one refers to EU Europe and the second to Europe of the Council of Europe, both with specific sources, shared values, and common spaces of action.

ECHR (European Convention on Human Rights): A treaty of international law that links the Portuguese State to the international legal order, which enshrines the rights and freedoms that embody the political and cultural values of Western democracies. The Convention has institutionalized a system of protection that is intended to be applied internally, so at the first moment of application are the domestic courts, which are bound to enforce it and to compensate victims if it has been violated. Only if this mechanism fails will individuals be able to access its court: the European Court of Human Rights. Underlying the intervention of the European Court is the principle of subsidiarity in view of the exhaustion of internal fundamental rights protection mechanisms. The rule of exhaustion and the right to an effective remedy are complementary: States must comply with the provisions of the Convention and, if violated, must provide victims with the effective means of redressing the damages suffered.

Principles: Unlike the rules, the principles do not constitute subjective rights directly demandable or immediately materialized. These are constitutional and programmatic rules that establish and finalize the purposes and tasks to be achieved, the application of which depends on the adoption of measures of implementation or execution by the legislative bodies. By requiring regulatory or administrative intervention to become effective, the principles can serve as a judicial basis and give rise to new Union powers. These are therefore impositive legal standards of 'optimization' that need to be densified. Possessing indeterminate content, they lack concrete mediations. In the event of a conflict, they are ‘object of weighting and harmonization between', allowing balancing of the antagonistic interests, which is not the case with legal rules.

Human Rights: Are a set of legal rules that recognize to individuals in general fundamental rights and freedoms inherent to all “humanity” that, by their nature, must be secured before the States. These rights are characterized by their qualities of universality, abstraction, essentiality, inalienability and priority over positive law. The human rights international law was developed after World War II and includes different rules regarding the sources from which they originate and the universal or regional scope in which they apply. It is a special and autonomous branch of international law, of customary and conventional origin, linked to the progressive affirmation of the individual's international subjectivity.

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