A Responsabilidade internacional do Estado Brasileiro em adotar controle jurisdicional de convencionalidade para proteção dos direitos humanos

Abstract

The American Convention on Human Rights, in its art. 2, imposes on States the duty to adopt a control over the production of norms to be exercised in the light of the American Convention and the jurisprudence of the Inter-American Court of Human Rights, the so-called conventionality control. However, in the Brazilian scenario, the exercise of this control is impaired by by the current supralegal hierarchy of norms set forth in international human rights treaties not approved with the qualified quórum of art. 5, §3, of the Federal Constitution, that is, superior to the laws and inferior to the Constitution. As consequence, the American Convention, approved with a simple quórum, is not part of the constitutionality block, being excluded from the normative control parameter, which would not happen if it had constitutional status. Thus, the present work will demonstrate that in Brazil the normative force given to international human rights treaties is not enough to prevent non-conventional laws from being eradicated from the legal system, even if they are constitutional, as is the case of the Amnesty Law, already declared unconventional by the Inter- American Court, the Decree-Law No. 7.589/1945 and the Labor Reform Law.