A flexibilização do pacto federativo em prol do cumprimento de obrigações internacionais perante os direitos humanos: uma análise sobre a (in)efetividade do incidente de deslocamento de competência

Abstract

The purpose of this monograph is to verify whether the normative/jurisprudential design of the Competency Displacement Incident (article 109, § 5º/Brazilian Constitution) is effective in view of its constitutional finality: "to ensure compliance with obligations arising from international human rights treaties to which Brazil is a party". To this end, the institute here analyzed, from the flexibilization of the Federative Pact, recognizes the subsidiary responsibility of the Union in the fulfillment of obligations under International Human Rights Law, which would primarily remain under the autonomy of the states and/or of the Federal District. Such flexibility, however, is conditioned on the recognition of the federate entity's "inability" to respond to a "serious violation of human rights" in harmony with the Human Rights treaties ratified by Brazil. Against this background, this monograph examined the six Competency Displacement Incidents that have already been judged, in order to compare them, qualitatively, with the international obligations of the Brazilian State. Based on that, the need of judicialization of the state/district "inability" is supported as a way to fulfill the constitutional purpose of the incident investigated here.