Incorporação e status hierárquico das normas advindas de tratados internacionais de proteção aos direitos humanos à luz do direito brasileiro

Abstract

This work aims at analyzing the Supreme Federal Court judgements relating to the subjects of international human rights incorporation and hierarchy. It was sought to get answers for two main issues: i) Is it necessary a promulgation decree after the human rights treaty ratification to complete the incorporation cycle? ii) Which is the international norm of human rights hierarchic position within Brazilian legal system? As a methodology for the exposition of the subject, this essay was divided in three main parts. The first deals with basic concepts of the law general theory; the second part deals with the elaboration process of the international treaties and the national law; the third, and the most important one, analyzes the jurisprudence of the Supreme Federal Court, considering solutions for the two main questions. One brief reflection also comes in to consideration related to the changes promoted by the Constitutional Ementa n. 45/2004. With this study, it was possible to enhance the importance of the constitutional hermeneutic for implement the human rights. The search for the greatest effectiveness for the norms of fundamental rights is the balance between the constitutional law and the international human rights. Based in these premises, one understands that: i) the edition requirement of a promulgation decree after the human rights treaty ratification does not have constitutional base, being incompatible with the international treaties incorporation system; ii) the international norm of human rights incorporated to the Brazilian legal system possesses constitutional status