What is its status in the Brazilian legal system?

The 1988 Federal Constitution is a landmark in the redemocratization of the country. Right from the start, it included a list of fundamental rights and guarantees – which is why it is also known as the Citizen Constitution.

It includes individual and collective rights (article 5), social rights (articles 6 to 11), nationality rights (articles 12 and 13) and political rights (articles 14 to 17).

But constitutionally guaranteed rights are not only those listed in the text of the Constitution. Article 5, § 2, states that the rights and guarantees expressed therein do not exclude others arising from the regime and principles adopted by it, or from international treaties to which Brazil is a party.

How are these international treaties and conventions ratified in Brazil? Are they superior to ordinary laws? Do they have the status of constitutional norms?

Let's explore these questions a little further.

The importance of international human rights treaties and conventions in Brazil.

The Brazilian legal system, starting with the 1988 Constitution, became open to the institutionalization of Human Rights. Constitutional Law and International Law began to interact to safeguard the same value: the human person.

The protection of human dignity, a central foundation of the Brazilian Democratic State of Law (article 1, III, CF/88), is a central element in the concept of Human Rights.

For the sake of human dignity, the goal is to ensure that everyone has a life free from arbitrariness and violence. The aim is for them to develop fully and participate in the political, social, and cultural life of the community to which they belong.

Let us see that the prevalence of Human Rights is a principle according to which the Federative Republic of Brazil governs its international relations, as per article 4, II, of the constitutional text.

But what exactly are Human Rights?

Flávia Piovesan, a professor at IDP, explains that they are a set of rights whose objective is to protect the possibility for every person to live with dignity. 

For her, the protection of Human Rights is a construct, subject to continuous development according to the limits of political viability and intellectual reasonableness of each era.

To achieve the level of human rights protection we have today, emancipatory, often revolutionary, processes were necessary for different societies to understand certain social aspects as rights for everyone, to be achieved and guaranteed permanently.

Over the years, especially after World War II, international entities such as the United Nations (UN) and the Organization of American States (OAS) were created, consolidating the process of internationalization and protection of Human Rights.

Alongside constitutional rights and guarantees, rights stemming from human rights treaties and conventions should be invoked whenever there is a violation by the State, or even by private individuals.

Which is status Legal framework for international human rights treaties and conventions in Brazil?

Here on the IDP Blog, we've seen the types of regulations that result from the legislative process, as outlined in Article 59 of the Constitution:

• Amendments to the Constitution;
• Complementary Laws;
• Ordinary Laws;
• Delegated Laws;
• Provisional Measures;
• Legislative Decrees; and
• Resolutions.

Where, hierarchically, are these international instruments located?

Well, some legal literature adopts one position, and the Supreme Federal Court (STF) adopts another. Let's start with the first, championed by Valerio Mazzuoli.

Mazzuoli understands that, because paragraph 2 of article 5 of the Constitution expressly provides that the rights and guarantees contained in the constitutional text do not exclude others arising from international treaties to which Brazil is a party, the rights derived from international human rights treaties have the status of a material constitutional norm.

This means that the rights are not formally in the Constitution, but they are constitutionally relevant. Therefore, they can serve as a paradigm for diffuse constitutional review.

It turns out that in 2004 Constitutional Amendment No. 45 was approved, which added paragraph 3 to article 5. This opens the possibility for international treaties and conventions on Human Rights to be approved, in each House of the National Congress, in two rounds, by three-fifths of the votes of their respective members, in which case they will be equivalent to Constitutional Amendments.

According to Mazuolli, this paragraph opens the possibility that Human Rights derived from international treaties approved as equivalent to Constitutional Amendments may have the status of both material and formal constitutional norms.

Because these provisions are formally enshrined in the Constitution, they can serve as a paradigm for constitutional review through the concentrated method.

The Supreme Federal Court (STF), on the other hand, ruled on Habeas Corpus 87.585 in December 2008. Until then, international human rights treaties and conventions were considered by the Supreme Court to have the status of ordinary law.

The practical effect is that another subsequent ordinary law could revoke the provision arising from the international instrument.

Following the ruling on that habeas corpus case, the Supreme Federal Court established a majority view that international human rights treaties and conventions are incorporated into the Brazilian legal system as supralegal norms . This was the prevailing view, supported by Justice Gilmar Mendes.

In this sense, supralegal norms are hierarchically above ordinary laws, but below the Constitution. This means that ordinary law cannot revoke a provision of an international human rights instrument. 

There is one exception: international human rights treaties and conventions that are incorporated according to the procedure of paragraph 3 of article 5, that is, by qualified majority and voting in two rounds in each legislative chamber.

In these cases, human rights treaties and conventions are not supralegal norms, but rather Constitutional Amendments.

Regarding international treaties and conventions that do not deal with Human Rights, the Brazilian Supreme Court (STF) understood that they have the force of ordinary law.

A practical example!

HC 87.585 concerned the imprisonment of a defaulting custodian. In Brazilian law, until then, there were two types of civil imprisonment: one for those who owed alimony and another for defaulting custodians.

It turns out that the American Convention on Human Rights , also known as the Pact of San José, Costa Rica, signed by Brazil in 1992, prohibits imprisonment for debt (article 7.7).

Because the American Convention has supralegal status , the Brazilian Supreme Court ruled that it had a paralyzing effect on all sub-constitutional legislation regarding the imprisonment of unfaithful custodians, which lost its effectiveness and validity.

The Brazilian Supreme Court (STF) also issued Binding Precedent No. 25: "The civil imprisonment of a defaulting custodian is unlawful, regardless of the type of deposit."

Why is it important to learn about the hierarchy of international human rights treaties and conventions?

Questions about the application of this international norm are common. In a specific case, should we apply national legislation or international human rights instruments?

Well, human rights treaties and conventions carry with them the protection of rights that complement national law. It's not about applying international law to the detriment of national law, but rather about complementing or supplementing the protection of human dignity.

There is a principle that governs this interpretation, and it is called pro homine . According to this principle, the most favorable rule, the one that best protects the human person, should be applied, provided it is internally valid.

In other words, in the event of an apparent conflict, the rule that expands the exercise of the right in question, or that produces greater and more effective guarantees for the human right it protects, should be applied.

Are you interested in this topic? Look into the Postgraduate Program in Constitutional Law at IDP and deepen your knowledge of Human Rights and the International Protection of Fundamental Rights.

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References

BRAZIL. Constitution (1988). Constitution of the Federative Republic of Brazil of 1988.

MAZZUOLI, Valerio. Judicial control of the conventionality of laws . 4th ed. São Paulo: RT, 2016.

PIOVESAN, Flávia. Course on Human Rights: Inter-American System. São Paulo: Grupo GEN, 2021.