THE NORMATIVE HIERARCHY OF INTERNATIONAL HUMAN RIGHTS TREATIES NOT SUBMITTED TO THE PROCEDURE OF CONSTITUTIONAL AMENDMENT NO. 45/2004: DOCTRINAL AND JURISPRUDENTIAL ANALYSIS IN LIGHT OF THE STRUCTURALIST CONCEPTION OF THE LEGAL ORDER

Abstract

This article examines the normative hierarchy of international human rights treaties not submitted to the qualified procedure established by Constitutional Amendment No. 45/2004 in the Brazilian legal order. The resulting normative gap, stemming from the silence of the derived constituent power regarding the status of treaties incorporated before the Amendment or approved by simple majority, generates interpretive uncertainty with direct consequences for resolving conflicts between conventional norms and domestic legislation.

The study adopts a predominantly deductive method grounded in the structuralist conception of the legal order as formulated by Hans Kelsen and systematized by Norberto Bobbio, combined with a historical reconstruction of the legislative process of CA No. 45/2004 and a comparative analysis of Brazilian doctrinal and jurisprudential positions. The four hierarchical theses upheld by national scholarship are examined, namely infraconstitutional, supralegal, constitutional and supraconstitutional, and confronted with the two landmark rulings of the Federal Supreme Court on the subject: RE 80.004-SE (1977) and RE 466.343-1 (2008).

The findings indicate that, although the STF has consolidated the supralegality thesis, the majority doctrine defends the constitutional hierarchy of human rights treaties based on the material openness clause of Article 5, §2, of the 1988 Federal Constitution. The study also identifies a fact rarely explored in the specialized literature: both landmark precedents on treaty hierarchy arose from commercial disputes, a circumstance that reveals the real priorities of the legal system and reinforces the argument in favor of constitutional hierarchy. The article concludes that the constitutional thesis is the most coherent with the foundations and principles of the 1988 constitutional order, and that the definitive elimination of hierarchical ambiguity requires action by the Legislature or a binding ruling by the Federal Supreme Court. The solutions adopted by Argentina and Mexico are presented for comparative purposes, demonstrating the normative viability of an express definition.