Human rights

Conventionality Control in Brazil: A Jurisdictional Defense mechanism of Human Rights

“The parameters of International Law and national perspectives have been increasingly integrated to legitimize human rights”.

According to Constitutional Amendment 45/2004 and the addition to §3 of Article 5th of the Brazilian Federal Constitution, it became possible to consolidate the International Human Rights Treaties as having a status of “equivalent to constitutional amendments”, when approved by a qualified majority, as pointed out by Valério Mazzuoli.

In that regard, these treaties would become references for the control of infra-constitutional norms in the Brazilian territory, causing the need for compatibility of the national normative production with the International Human Rights Treaties currently ratified in Brazil (MAZZUOLI, 2009).

However, within the terms of Conventionality Control, this compatibility concerns treaties that have Constitutional status, such as Human Rights, and does not correspond to mere common international treaties that, at times, concern other issues outside the merely humanist theme. Therefore, although these treaties do not have Conventionality, they also have superior status to domestic law, and cannot be revoked by subsequent legislation and normative productions (MAZZUOLI, 2009).

In this way, new criteria for legislative legalization are determined, by which the infra-constitutional norms to be produced should be guided, be characterized as compatible with the various parameters of the Humanist and Contemporary Legal System. These are: the analysis of the compatibility of the normative production with the Constitution itself and with the Human Rights Treaties ratified by the government, in addition to the common international treaties in force in the country (TAUCHERT et al, 2020).

To achieve the fullest defense and promotion of human rights under domestic law, the parameters of international law and national perspectives be increasingly integrated to legitimize the consecration of individual humanistic rights, which can be claimed and defended in the face of national jurisdiction (THADEU, 2020).

In that sense, once the State has contracted obligations arising from International Law, it ends up also contracting the need for these duties to be in force within its internal legal system to guarantee, in a full way, the fulfillment of the internationally signed duties (THADEU, 2020).

On that wise, aiming at the effective consecration of the implementation of these obligations in the internal sphere of the States, it became possible to glimpse the developments of the Conventionality Control before the International Courts, to open precedents for the inclusion of the international normative in the internal scope.

In the year 2019, to gather its main jurisprudential lines regarding diverse themes of regional and international relevance and interest, the Inter-American Court of Human Rights launched the Seventh Volume of the so-called “Cuadernillos de Jurisprudencia“, intending to make it an efficient tool for the application of International Human Rights Law in the domestic jurisdictional sphere, through the formal presentation of the Control of Conventionality (NASH, 2019).

To achieve an effective approach, the editorial staff of the Inter-American Court of Human Rights sought to a group, in a selected manner, the most relevant paragraphs resulting from cases and sentences previously handed down by the Court, thus presenting the main criteria of the characteristics and nature of this Control (MAZZUOLI, 2009).

Throughout their writing, the Cuadernillos point to the maturation of the concept of Conventionality Control, delimiting the jurisprudential evolution of the Court, based on judgments of extremely relevant cases.

In this sense, the delimitation imposed by the Court regarding the manner of application and interpretation of the Control of Conventionality within the domestic jurisdiction can be seen.

At first, we have the reiteration of the fact that the Control of Constitutionality is not sufficient for the effective regulation of the domestic normative production, through the explanation that the National Courts should not limit themselves to this type of control, but rather, adapt their elaborations to the scope of conventionality (ROSA, 2017).

In this way, it becomes feasible to point out the jurisprudential evolution of the Inter-American Court, according to the wording of the Cuadernillos.

In principle, the establishment of the Control is observed and reiterated as a measure to be implemented ex-officio by the Judges of the internal jurisdiction, as mentioned above. The following deliberations are then presented: the obligation of Public Administration bodies at all levels to use the Control of Conventionality; the obligation of this control before public authority figures; the extension of the Control of Conventionality to other International Human Rights Treaties; the absence of a standard model for the application of the Control of Conventionality; the expansion of advisory opinions; and finally, the pre-established conditions for the exercise of the Control of Conventionality (MAZZUOLI, 2009).

That said, the progress that the Conventionality Control has achieved with its development in the Inter-American Court is noticeable.

Through the Court, it has become possible to create new analyses and a deeper study of the issue, allowing new scholars from different regions and states to develop their understandings.

For that matter, it is essential to affirm that the Control of Conventionality, in the sphere of a Humanist and Social Legal Order, has become a mechanism of utmost importance for the guarantee and promotion of Human and Fundamental Rights in the field of Internal Law (ROSA, 2017).

With its due doctrinal development, it became feasible to carry out a robust and effective analysis regarding the parameters of use and scope of Conventionality, as well as the establishment of its historical and jurisprudential panorama, resulting from the vast normative jurisdictional production of the Inter-American Court of Human Rights in recent years, to achieve, with the greatest possible effectiveness, the compatibility of international precepts in domestic jurisdiction (MAZZUOLI, 2009).

According to Jorge Rocha, the following would be, therefore, the trend of contemporary internationalism: the prevalence of inclusion and dialogism, in detriment of dialectic (exclusion), in the guarantee and protection of Fundamental and Human Rights, with the “pluralization of the Institutions that ensure their observance” (ROCHA, 2020).

The compatibility of normative production following the Control of Conventionality, therefore, is nothing more than a result of the contemporary social demand for humanization of Law, with the consequent integration of the various systems and legal systems existing around the world, through a common goal: the defense of human rights and the guarantee of access to these rights to individuals who are entitled to them (MAZZUOLI, 2009).

Therefore, we conclude that the Conventionality Control, nowadays, is still a developing mechanism, whose application requires future jurisdictional adaptations, within the scope of Internal Law, to effectively ensure the alignment of both national and international legal spheres.

On this account, the need for the interpretation and application of the Conventionality Control by the Public Power is verified, to sustain the promotion of Human Rights and prevent the collision of external jurisdiction with the internal jurisdiction.

REFERENCES

  • Aleixo, L. S. P., & Bastos, S. P. (2016). Controle de convencionalidade e gênero: perspectivas brasileiras no combate à disseminação não consensual de imagens íntimas. Revista IIDH, (64), 215-238.
  • Humanos, D. (2000). CORTE INTERAMERICANA DE. GLOBALIZACIÓN, 66.
  • Carneiro, R. M. X. G. (2020). O papel do Ministério Público junto ao sistema internacional de proteção dos direitos humanos (Doctoral dissertation).

Law student at the Catholic University of Pelotas, with a double-bachelor degree in International Relations, at the International University Center, Brazil. Interested in Technology Law, International Law and Human Rights, being an alumni of the University of Coimbra’s Law School and the University of Porto’s Criminology Licentiate Program, Portugal.

Leave a reply:

Your email address will not be published.

error: Content is protected !!