Os reflexos da constitucionalização dos tratados internacionais de direitos humano implementada pela EC Nº 45/04.

Abstract

The study of the international law it is, for way of consequence, of treat and the international conventions. These, in turn, occupy, in the present time, prominence position, in view of the phenomena of the globalization. One of the subjects that more have excited impediments in the legal world how much to the substance it is the question of the relation established between the jurisprudences, internal and international. For its relevance, the subject deserves reflections on the part of the operators of the right, but in that it not only respects to the consequences of the application of the treated ones internally, but, over all, for the interferences that will happen around the rights and express individual guarantees in the Constitution. Thus, the present work if considers to face, of clear and concise form, through the method of the historical evolution and the teleologic inquiry of exegesis in the famous doctrines and the jurisprudence, the problematic one of the reception of the international norms. In this way, it will be approached, initially, the conceptualization and structure of the treated ones, that they are essential for the agreement of the subject, to the form of reception in the Brazilian legal system, well with the positions of different chains concerning the legal nature of the treated ones ratified by the president to the Republic. Moreover, one will analyze the international norms of protection the human rights, its reach, legal nature, conferred for the Constitution and the positioning adopted for the native jurisprudence. Finally, inclusion will evaluate consequences happened of in art. 5° of CF/88, that deals with the rights and individual and collective duties, of § 3°, proceeding from promulgation from Emendation Constitutional n° 45, of 08 of December of 2004, that it raised to the status of constitutional emendation treat and the international conventions on human rights that will be approved, in each house to the National Congress, in two turns, with the quorum (qualified) of 3/5 of the votes of the respective members. To it stews of this study, one evidences the real effect of the inclusion of the related paragraph, that, in contrast of that if it glimpses initially, generated one confronts to all construction of the constitutional law in the preservation of the basic rights, this because it granted legal nature diverse treat and to the international conventions to human rights, conferring constitutional status to ratified after the EC n° 45/04 and considering the ones that if had incorporated the legal system Brazilian before the advent of the cited Emendation as constitutional rules, trying, thus, the allegation of unconstitutionality, in view of collating directly with the stony clauses.