Imunidade de jurisdição: costume internacional ou princípio geral de Direito? Perspectivas e controvérsias na atividade classificatória dos tribunais superiores brasileiros

Abstract

This study proposes the following question as a problem: Considering that State Immunity, although a truly ancestral norm of International Law, still generates discussions about its legal nature, evidenced by ambiguous positions in both doctrine and jurisprudence, would it, after all, be a international customary norm or a general principle of law in light of the jurisprudence of the Brazilian superior courts? In view of this problem, the hypothesis was established that the aforementioned norm is based on customary law, although the Brazilian Supreme Federal Court (STF) and the Brazilian Superior Court of Justice (STJ) present divergent approaches on the legal nature of the rule. In order to confirm or reject this statement, three specific objectives were outlined, namely, (i) to systematize criteria for distinguishing between international customary law and general principles of law as sources of International Law; (ii) to ascertain the content and legal nature of State Immunity, based on a testing of the norm in the criteria previously outlined; and (iii) verify how the STF and the STJ have identified and classified the legal source of this norm in their judgments, assessing the consistency and coherence of their approaches. This investigation is justified by the scarcity of research on the topic, the topicality of the subject, as well as the possibility that the conclusions reached here may assist the courts in adopting a more consistent, cohesive and theoretically based position on the legal source of the rule of State Immunity. Methodologically, a predominantly hypothetical-deductive method and a qualitative approach were used, based on bibliographic and case law research, the latter restricted to the judgments of the STF and the STJ pertaining to State Immunity. In the end, it was possible to observe the hypothesis initially indicated that the legal nature of State Immunity finds better correspondence in the category of international customary law, although the case law of the courts analyzed presents variations in classification, including a high level of omission in the indication of the source, which is why it is recommended to standardize the approach given to the norm by the Ministers, recognizing State Immunity more consistently as an international customary law.