A necessidade de participação do Congresso Nacional no ato de denúncia dos tratados de direitos humanos: o caso da Convenção 158 da OIT

Abstract

In the current context of the Brazilian legal system, the denunciation of international treaties on human rights is performed from unilateral act of the President. However, a more modern line of thinkers and jurists have defended the need for inclusion of the National Congress in the process, under penalty of violation of the constitutional text. It is proposed to analysis about the real need to involve Parliament in the act in question, through the examination of the case of Convention 158 of the ILO, the text of which was denounced by Brazil by Decree 2,100 / 1996. Through the theoretical-deductive method, carried out a study of scientific literature, case law and legislation related to the object, which underlies a critical and comparative exhibition on the theme. It is shown that international treaties formally constitutional human right cannot, under any circumstances, be the target of the complaint by Brazil, because of its equivalence constitutional amendment. In turn, it is evident that international treaties to materially constitutional human rights complaint can be targeted, but only externally, given its equivalence to constitutional rule. It also notes that this act should be supported by the inclusion of the will of the legislature in its course, based on the role played by this power in the exercise of treaty-making power, as well as a range of constitutional affections to the topic principles. It is further demonstrated that the Decree No. 2,100 / 1996 is unconstitutional not only because it represents a complaint the international treaty without the participation of the National Congress, but also for the wholesale normative text content. Finally, it concludes the unconstitutionality of the aforementioned decree, returning to Convention 158 of the ILO internal validity, with retroactive effects. It also concludes that, in the external environment, in order to remedy the irregularity inherent to the absence of legislative involvement in the said complaint process, should the President protocol a new standard text ratification request before the ILO.