Prof. Dr. FABIÁN SALVIOLI

The pro-person interpretation as a hermeneutic method for the application of international law

Prof. Dr. FABIÁN SALVIOLI
The role of the democratic State governed by the rule of law focuses on the respect and guarantee of human rights and fundamental liberties of all persons without discrimination, considering that the relation between democracy and human rights forms an indissoluble whole. So, the safekeeping of the rights of human beings constitutes an obligation, not an option, for States and consequently for all the powers that carry out functions within the state. National and international law on the subject represents an essential tool in the task of interpretation of public powers, and the science of human rights - rules, construction, decisions - account for a specific hermeneutic mechanism which we can identify as the pro person perspective, comprising a series of elements that interact and give mutual feedback developmentally. The first element is the central pro person (pro homine) tenet and the pro person interpretation of statutory provisions, rights, obligations of States, possible limitations, etc. Secondly, the teleological interpretation (finality) for the purposes of guaranteeing the fulfilment of the objectives provided for in human rights instruments, and of each particular regulation, highlighting the importance of carrying out the hermeneutic task at the time of application of the regulation and not as was foreseen when it was adopted. Good faith must also nurture the decision-making framework of the relevant entities, and with this perspective they must be attentive to the behaviour of the State, which should go beyond the fulfilment of obligations, achieving the correct follow-up and observance of international jurisdictional and quasi jurisdictional decisions on the subject. The pro person interpretation also requires the application of the principle of useful effect, so that regulations aimed at guaranteeing human rights have the appropriate effect, encouraging criteria of fairness, practicality and efficiency, excluding deceptive measures. Cross fertilisation, from the use of communicating channels, allows the use of interpretations and decisions of other entities to harmonise the most favourable application of the right to the human being, from the perspective of progressive development. Naturally, this requires avoiding resorting to regressive interpretations. Other principles, specific to the international right of the human being, are applied transversally in the pro person hermeneutic practice; these are: universality, indivisibility, interdependence, progressive development and the guiding principle of no discrimination. Finally, the pro person perspective is nurtured by particular and differentiated approaches when the situation so necessitates: these are gender perspective (for violations of the human rights of women, or that affect LGBTI); reasonable adjustments, universal design, accessibility, autonomy for decision-making (about the rights of people with disability); the cultural focus, free, prior and informed consent, cosmovision (for indigenous or tribal peoples), the best interest (in the case of children or adolescents); and the principle of active and healthy ageing (in cases of rights of elderly people).