As teses da constitucionalidade e da supralegalidade na incorporação dos tratados sobre direitos humanos nos termos da EC n. 45/2004

Abstract

This article intends to approach, from a theoretical, political and technical-legislative perspective, the theses of constitutionality and supralegality in the internalization of international human rights treaties in Brazil, notably under the aegis of the procedures established by Constitutional Amendment no. 45 of 2004. The general objective was to verify, from the analysis of literary works, scientific articles and legislative and judicial documents that deal with interstate relations, arguments of authorities, especially Antônio Augusto Cançado Trindade, and general theories of Law, if the approval of §3 of art. 5 of the Federal Constitution, inserted by EC n. 45/2004, overcomes the constitutionality thesis and closes the debate regarding the legal classification of international human rights treaties of which Brazil is a party, definitively consolidating the supralegality thesis. It's been concluded that the material essence of art. 5, § 2 of the Magna Carta and the doctrinal hermeneutics about the referred device support the extension of a revision debate regarding the position of the Supreme Federal Court, which traditionally rejects the constitutionality of the human rights treaties incorporated into the Brazilian legal system through simplified legislative rite.