Diálogos de jurisdições: a força de autoridade das decisões de cortes internacionais perante os tribunais domésticos brasileiros

Abstract

This doctoral thesis seeks to analyze the authoritative use of the decisions of international courts by the Brazilian domestic judges, using the methodology of empirical studies in law. To achieve this, we have divided the text into two parts. The first part deals, essentially, with the problem of the juridical nature or the force of authority of international case law in domestic courts. In this sense, we examine the effective possibilities of engagement or <dialogues= between domestic and international courts. We address, as well, the different classifications of postures that can be adopted by national judges in relation to the decisions of international courts. In this regard, we work not only with the concept of the 'binding force' of international decisions in domestic law, but also with the notion of the 'persuasive force', or argumentative force, of international precedents, in order to discuss the possibility that they could be used as guidelines for future judgments in Brazilian courts. At the end of the first part, we will present an initial outline of a proposal regarding the interpretative principles that we consider that should be taken into account, by Brazilian judges, in the application of international courts9 case law. In the second part, we carry out an empirical analysis of the practice of Brazilian high courts. In particular, we provide a compilation of cases in which Brazilian high courts cited the decisions of international courts whose jurisdiction was recognized by Brazil, more specifically: the Federal Supreme Court (STF), the High Court of Justice (STJ), the High Electoral Court (TSE), the High Court of Labor (TST), the High Military Court (STM) and the Federal Audit Court (TCU). Through this empirical analysis, we will conclude what has been, from the point of view of these courts, the weight of international case law in the reasoning of the decisions involving the application of international law in previous cases and in the daily practice of Brazilian domestic courts. Notably, we could verify an exponential growth, in the recent years, of the citations of international precedents in Brazil. We also found, however, that the use of international case law is still carried out by Brazilian courts, most of the time, lacking the due technical reasoning and without an actual engagement with the legal grounds of international courts9 decisions, making it difficult to properly identify the strength and the legal authority of international case law in the Brazilian legal system.