ICCAL AND HUMAN RIGHTS: TRANSFORMATIVE DIALOGUES BETWEEN THE BRAZILIAN JUDICIARY AND THE INTER-AMERICAN SYSTEM

The article aims to examine if the Brazilian Supreme Court (“Court“) dialogues with other domestic and international courts in its human rights case law, in general, and with the Inter-American System of Human Rights, particularly. It seeks to assess whether the Brazilian Court operates in a kind of “network environment“, in dialogue and interaction with other constitutional, supreme and international courts, or if it does not do so. With this purpose, the work starts from theoretical elaborations on models of judicial behavior related to the operation with foreign precedents and, based on such models, develops an empirical study that analyses: (i) which are the main foreign or international courts whose precedents are referenced by the Court - (ii) what is the weight that the inter-American precedents have in the Court‘s decision-making process and how to improve it.

From the point of view of the Interamerican system, there are expansive dialogues on human rights protection with the Brazilian Supreme Court on gender protection. By repudiating state tolerance and discriminatory treatment, the Interamerican system points to significant achievements reflecting Brazilian jurisdiction in affirming gender rights. The full adoption and implementation of these achievements appear as an imperative of justice and respect for the rights of so many Brazilian women. In this plural scenario, domestic constitutional law and international human rights law impact each other. From this catharsis emerges a new public law, focused on the extension of dignity and the pro persona principle in favor of women‘s human rights. Thus, based on emblematic decisions of the Brazilian Supreme Court, the present research verifies the advances in the dialogue between the national and international Courts that reflect more broad protection of women‘s human rights.

Brazil has strived with structural racism for a long time, both because of its history of slavery and the inefficiency of its institutions to properly include black people into society once slavery had been overcome. In the past decades, due to constitutional commitments and international conventions, the theme has arrived at the Supreme Federal Court in demands that go further than condemning discrimination to face racism through structural litigation. Namely, on that last matter, it has also improved the judicial dialogue with the Inter-American Human Rights System and other Latin-American Constitutional Courts. This research aims to analyze how such exchanges have evolved over the years to verify their top-down, bottom-up, and horizontal contributions and then conclude if judicial dialogues have strengthened judicial review‘s efficiency to face structural racism and if Brazilian case law may provide racial equality standards to Latin-American regional law.

The Ius Constitutionale Commune in Latin America is a regional approach to the transformative constitutionalism, which aims to transform the American continent by protecting human rights and strengthening democracy and the rule of law. The text intends to analyze the Brazilian Supreme Court case law regarding LGBTQIA+ rights and its transformative impact. The analysis has shown that the role of the court in the promotion of these minority rights has had a huge impact on the LGBTQIA+ lives, because the Brazilian legal system did not recognize the members of this community as subject of rights. Since the Brazilian Supreme Court ruled same-sex marriage, the possibility of changing the name on the ground of sex reassignment, and the criminalization of homotransphobia, LGBTQIA+ people have been granted human dignity and social visibility.

Based on comprehensive research of Brazilian Supreme Court (STF) jurisprudence, this paper reveals degrees of intertwinement between domestic and international standards related to the rights of indigenous and traditional peoples. All decisions issued by STF involving the rights of such peoples from the paradigmatic Raposa Serra do Sol case up to 2021 were analyzed, applying a methodology of judicial decision review. First, the paper outlines the legal profile of relevant decisions rendered by the tribunal in the last decade. It proceeds by comparing these case‘s rationale to legal criteria set by the IACtHR. It is demonstrated how greater levels of embedment with international human rights law may contribute to greater protection of rights and to strengthening democracy. It concludes that even though the STF has been a source of resilience against increasing governmental setbacks in the human rights field, there are still sensitive matters that have been avoided by the tribunal.