A solidariedade no direito internacional: entre “lex ferenda” e “lex lata”

Abstract

This work intends to study the humanization of international law, and consequently the rise of a global constitutionalism in the defense of human rights, in a context where international solidarity presents itself as a promising protagonist in order to achieve the necessary conceptual changes towards concretization of the so-called "human rights of solidarity" or "a human right to international solidarity", which call for a rethinking and conceptual redefinition of the State, Law and Justice. Emphasizes that the legal imaginary of humanization of international law and global constitutionalism find in the realization of the human rights of solidarity the legal response that would guarantee the supremacy of the common values shared by humanity, such as human dignity, in the domains of validity of legal acts (including by relating such rights to jus cogens norms and erga ommes obligations). So, understanding that solidarity in international law lies in a confused zone between "lex ferenda" (an ideal of what law should be / imminent possibility) and "lex lata" (law admittedly established / reality), argues that, between a less irrefutability of international solidarity as "lex ferenda" and the theoretical and practical uncertainties of its transformation into a solid "lex lata", the extensions and dynamics between these two spheres (lex ferenda/lex lata) point to an irreversible tendency towards the recognition of international solidarity as both value and principle, and also as a human right (that is, as a concrete way of global justice and promotion of human dignity), according to the sui generis challenges and needs of mankind. It concludes by proposing that the current draft of the Declaration on the Right of Peoples and Individuals to International Solidarity by the United Nations appears as a tool to clarify the gray área (lex obscura) between "lex ferenda" and "lex lata" where solidarity is, because it intends to develop a legal theory of solidarity closely linked with international human rights law and the supreme principle of human dignity through viable, enforceable and feasible shared rights and responsibilities.