O direito internacional no direito brasileiro, segundo o Supremo Tribunal Federal

Abstract

National courts exercise an important jurisdictional function in international law. This assessment has roots in the concept of role splitting, conceived in the first half of the XXth century, and supports various contemporaneous theorizations. One of the facets of such jurisdictional function is the diffusion of secondary rules of international law in domestic law. In Brazil, this space has been occupied by the Supreme Federal Court (STF), especially due to the institutional proeminence it has reached in past decades and due to the absence of relevant orientation in national written law. Through its decisions, the court objectively establishes in Brazilian law the criteria by which international law must be identified, interpreted and applied by domestic bodies. A well-known and precise example is the rule of treaty and ordinary law equiparation for the solution of antinomies, established in Brazilian Law by RE nº 80.004/1977. In light of this, this research is dedicated to extract internalization and internal application of international law rules established in Brazilian Law from STF’s jurisprudence. In order to do that, decisions whose reasoning made use of or approached international law issued by the court between 1988 and 2023 were collected. Afterwards, the study proceeds to make an analysis of the collected material, segmented in fourth chronological periods, which cover the respective relevant issues and themes. In doing so, this study extracts secondary rules of international law in Brazilian law from the aforementioned decisions. The results are compiled and presented in three groups: secondary rules of international law established in Brazilian law, rules speculated by the court, and lost opportunities. In the end, a critical scrutiny of the findings found that, although the STF effectively has consolidated important internalization and internal application rules of international law, the whole of such rules is poorly coherent and suboptimal. This impression reflects the disconnect between the image of the court regarding its own relation to international law and the international function which it in fact exercises. Likely if the court viewed not only international law as a group of norms eventually applicable, but also itself in the context of international law, it would further contribute to a higher degree of coherence in international law and to Brazilian institutional actors and subjects to its jurisdiction.