Since the post-World War II era, human rights have assumed a central position on the international legal agenda. The creation of international treaties aimed at protecting human dignity has come to represent an ethical and legal commitment of States to the international community. Brazil, especially since the 1988 Federal Constitution, has incorporated this discourse and ratified several international human rights treaties, both globally and within the Inter-American system.

However, the mere ratification of these instruments does not, in itself, guarantee their effective application domestically. In Brazil, the Supreme Federal Court (STF) plays a decisive role in defining how international treaties are integrated into the national legal system, both in terms of when they begin to produce internal effects and in terms of their normative hierarchy.

This article aims to analyze, in accessible language suitable for a legal blog, the evolution of the Brazilian Supreme Court's jurisprudence on international human rights treaties, focusing on two central points: (i) the entry into force of these treaties in domestic law and (ii) their hierarchical position in relation to the Constitution and ordinary laws. Finally, the main challenges and perspectives for the consolidation of effective protection of human rights in Brazil will be pointed out.

The incorporation of international human rights treaties in Brazil

In the realm of International Law, the general rule is relatively simple: a State becomes bound by a treaty upon its ratification, accession, or deposit of the corresponding instrument, as governed by the Vienna Convention on the Law of Treaties of 1969. From that moment on, the treaty generates international obligations, regardless of any additional internal formalities.

However, in Brazil, the understanding has been consolidated that, in addition to ratification, the treaty must be promulgated by presidential decree, with subsequent publication in the Official Gazette of the Union, for it to produce effects domestically. This understanding has been built jurisprudentially by the Supreme Federal Court and generally applies to all international treaties, including those on human rights.

The practical consequence of this position is significant: there can be a considerable time lag between when Brazil becomes internationally bound to a treaty and when it begins to be applied domestically. In matters of human rights, this delay can mean the continuation of violations of rights already recognized internationally.

Doctrinal criticism of this model is intense. Many authors argue that the requirement for a presidential decree is not expressly provided for in the Federal Constitution and creates an unnecessary obstacle to the effectiveness of treaties, in addition to potentially exposing the Brazilian State to international liability.

The evolution of the Supreme Federal Court's jurisprudence on the hierarchy of treaties.

The question of the hierarchy of international treaties has always been the subject of debate in the Brazilian Supreme Court (STF). At the beginning of the 20th century, the Court even recognized the prevalence of treaties over domestic legislation, especially when there was a conflict between domestic law and an international commitment previously undertaken by Brazil.

This understanding, however, changed starting in the 1970s. In the judgment of Extraordinary Appeal No. 80.004, the Supreme Federal Court established the principle that international treaties, once incorporated into the legal system, have a status equivalent to that of ordinary law. Thus, in case of conflict, the criterion of the later law would apply, even if it contradicted a current international treaty.

This stance has generated significant legal uncertainty, particularly in the field of human rights. After all, rights enshrined in treaties could be disregarded by simple subsequent ordinary laws, thus undermining the international commitment undertaken by the Brazilian State.

The 1988 Constitution and human rights treaties

The 1988 Federal Constitution represented a milestone in the promotion of human rights in Brazil. Article 5, §2, by stipulating that the rights and guarantees expressed in the Constitution do not exclude others arising from international treaties to which Brazil is a party, opened the way for a more protective interpretation of these instruments.

Based on this provision, a significant portion of legal scholars began to argue that international human rights treaties have constitutional status, forming part of the so-called constitutional bloc. This interpretation would reinforce the protection of fundamental rights and prevent their revocation by sub-constitutional legislation.

However, this was not initially the position adopted by the majority of the Supreme Federal Court (STF). For a considerable period, the Court maintained the equivalence of treaties to ordinary laws, even when dealing with human rights.

Constitutional Amendment No. 45/2004 and paragraph 3 of article 5

In order to overcome this controversy, Constitutional Amendment No. 45/2004 was enacted, which introduced paragraph 3 to article 5 of the Constitution. This provision establishes that international treaties and conventions on human rights approved by the National Congress, in two rounds, by three-fifths of the votes, will be equivalent to constitutional amendments.

From then on, a formal distinction was created: human rights treaties approved through the qualified procedure would have constitutional status, while the others would remain in a lower hierarchical position.

This solution, while representing progress, also generated new controversies, especially regarding treaties approved before the 45th Amendment or without observing the qualified procedure.

The current understanding of the Supreme Federal Court (STF): supralegal status

In 2008, during the judgment of Extraordinary Appeal No. 466.343, which dealt with the civil imprisonment of a defaulting custodian, the Brazilian Supreme Court (STF) established an intermediate position. The Court recognized that international human rights treaties that have not been approved through the procedure of §3 of Article 5 have supralegal status: they are above ordinary laws, but below the Constitution.

This understanding, in this specific case, allowed for the exclusion of the application of sub-constitutional norms incompatible with the Pact of San José, leading to the abolition of civil imprisonment for defaulting custodians in Brazil.

Although it represented an advance over the simple equation with ordinary laws, the supralegality thesis is still the target of criticism. For many authors, it weakens the system of protection of human rights and does not extract the full normative potential of article 5, §2, of the Constitution.

Current criticisms and challenges

The main criticism of the model adopted by the Brazilian Supreme Court lies in the fragmentation of human rights protection. By creating different hierarchical levels for treaties of the same nature, the system becomes complex and, at times, inconsistent.

Furthermore, the distinction based on the approval process ignores the fact that, internationally, all human rights treaties ratified by Brazil generate equally binding legal obligations. From an international perspective, it matters little whether the treaty was approved by a simple or qualified majority in the National Congress.

Another relevant challenge concerns the denunciation of treaties. If treaties approved through the qualified procedure are equivalent to constitutional amendments, the debate arises regarding the possibility—and the limits—of their denunciation by the Executive Branch, especially in light of the prohibition against regression in matters of fundamental rights.

Conclusion

The relationship between the Brazilian Supreme Court (STF) and international human rights treaties reveals a trajectory of gradual progress, but one still marked by tensions and ambiguities. While there has been progress in recognizing the importance of these instruments, obstacles to their full effectiveness domestically persist.

Strengthening the protection of human rights in Brazil necessarily involves a constitutional interpretation that prioritizes the dignity of the human person, the prevalence of human rights, and the maximum effectiveness of protective norms. In this context, consolidating an understanding that recognizes the material constitutional hierarchy of human rights treaties could represent a decisive step towards aligning Brazilian domestic law with commitments made internationally.

Beyond theoretical discussions, the topic has a direct impact on people's lives. After all, the greater the normative force of human rights treaties, the greater the capacity of the legal system to protect the individual against arbitrariness and violations, thus fulfilling the constitutional promise of a democratic state governed by the rule of law committed to human dignity.

References

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BRAZIL. Supreme Federal Court. Extraordinary Appeal No. 80.004/SE. Full Court. Rapporteur: Justice Xavier de Albuquerque. Decided on September 03, 1975.

BRAZIL. Supreme Federal Court. Extraordinary Appeal no. 466.343/SP. Full Court. Justice Cezar Peluso, Rapporteur. Decided on December 03, 2008. Electronic Official Gazette, June 05, 2009.

BRAZIL. Supreme Federal Court. Appeal in Letter Rogatory No. 8.279/DF. Full Court. Justice Celso de Mello, Rapporteur. Decided on August 10, 2000.

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UN. Vienna Convention on the Law of Treaties. Vienna, 1969.