BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

achieve public objectives in defense, protection, promotion, education on the culture of human rights are determined and defined. It is a process guided by fine determinations and exists to obtain results that include both normative and democratic development, since they especially impose on the freely elected defender of citizen’s rights the need to obtain good results in this aspect. 42 Among the techniques of positivation, it is important to point out that “fundamental rights due to various functions fall into two main groups: rights of defense (freedom, equality, social and political rights); rights to benefits (rights to benefits in the broad sense and strict sense) “. In this prospectus, “the intervention of the legislator is necessary so that the rights of the defense and of the rights of the person have full effectiveness and applicability”. 43 With respect to the rights of defense, which are immediately applicable (paragraph 1 of article 5 of the Brasilian Federal Constitution), they are directly enforceable, since they are disposed in the constitutional norm so as to “confer on the individual an active subjective situation – a legal power – whose effectiveness must be immediate and independent of the service of others”. 44 The rights to benefits require a direct action of the public power. In the proposed theme, the rights of defense, especially those of freedom and equality, must be guaranteed to women, and specially, among them, pregnant women, so that can be assured the effective exercise of their autonomy of will during the gestational period as protection against obstetric violence. In Robert Alexy’s conception, 45 the duty of equality in the general statement of equality culminates in the sense that the general command cannot authorize any differentiation, it becomes necessary the middle term and, therefore, the dictum that “equals must be treated equally, and the unequal, unequally, is the starting point for the exercise of equality”. Likewise, the author expresses the general right of freedom as one in which the action of the individual is expressed freely by doing or failing to do what one wants, so as to protect not only the individual’s doing, but also his “Being”, since it makes it free by itself and free from interventions of others. 46 Among the mechanisms for the implementation of human rights are the so-called affirmative actions, which express the exercise of rights of freedom and equality and can be superficially defined “as the whole set of systematic norms for the promotion 42 ALBA,LuisEduardoZavalade.Gobernanzaenderechoshumanos:haciaunaeficaciayeficienciainstitucional. Revue Quebecoise de Droit International , special issue, p. 275-276, mar. (2015). Available in: . Acess in July 12, 2017. 43 MARCO, Sadi José de. Hermenêutica: a eficácia dos direitos fundamentais. In: STRAPAZZON, Carlos Luiz; GOLDSCHMIDT, Rodrigo; TRAMONTINA, Robison (org.). Teoria geral e mecanismos de efetividade no Brasil e na Espanha : Tomo I. Joaçaba: Ed. Unoesc, 2013. p. 62. Available in: . Acess in July 12, 2017. 44 MARCO, ibid., p. 68. 45 ALEXY, Robert. Teoria dos direitos fundamentais . 2. ed. 5. tiragem. São Paulo: Malheiros Editores, 2017, p. 397. 46 ALEXY, ibid., p. 343-344.

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