BRAZIL AND INTERNATIONAL TRIBUNALS: THE INTER-AMERICAN COURT OF HUMAN RIGHTS

A more robust system of protection of human rights at the regional level is found in the Inter-American System of Human Rights from the Organisation of American States (OAS). As a member of OAS, Brazil is a signatory of the American Convention on Human Rights (�Pact of San Jose’) of 1969, incor­porated into domestic law in 1992,^[1256] and other international treaties and conventions in matters such as prevention and punishment of torture,^[1257] economic, social and cultural rights,^[1258] violence against women,^[1259] discrimina­tion against persons with disabilities^[1260] and the prohibition of reestablishment of death penalty,^[1261] etc.

At first sight, the system looks functional, but the reality is less rosy. It origi­nated in a period when many Latin American countries were not democracies, but dictatorships. It was not therefore a collaborative environment where the �triad of the rule of law, democracy, and human rights’^[1264] could be truly adopted as the cornerstone of a model of regional integration. Instead, the dominant mindset was that human rights were �an agenda against the state’.^[1265] Latin America has since largely democratised, but that mindset has never really been overcome. MERCOSUR, for example, began focusing on human rights, inspired by the premise that the Inter-American System of Human Rights was still very much influenced by the US and that it could not therefore effectively guarantee the sovereignty of state members^[1266] in such a degree of economic and political asymmetries. A system that was originally conceived under such a sentiment of mutual hesitation would not foster, in practice, the needed cooperation and engagement to establish supranational institutions that would operate effec­tively to constrain member states in cases of violations of human rights.

Despite that, the Inter-American System of Human Rights has gained some ground and its legal and institutional framework has had some dialogue with other integration blocs such as MERCOSUR.^[1267] The Inter-American Commission on Human Rights has issued reports on human rights that have triggered impor­tant legal movements toward the protection of human rights,^[1268] in a growing role whereby domestic demands are examined in an international forum, and then incorporated into domestic law �with higher pressure for implementation’.^[1269] Its 2021 report on human rights in Brazil, for instance, mentions that �the rule of law in Brazil is founded upon solid democratic institutions’, but �has recently been confronting challenges and setbacks’.

By the same token, the Inter-American Court of Human Rights has issued a series of decisions on human rights that has served as standards of interpreta­tion in the region,^[1271] creating, as Marcelo Torelly puts it, a �reflective process [leading] to normative convergence’.^[1272] It has been a key player in some very sensitive but crucial topics in Latin America such as human rights violations during dictatorships, transitional justice, realisation of civil and social rights, protection of minorities and vulnerable groups, judicial independence and access to justice, among others.^[1273]

It should be highlighted that, in Brazil, the IACtHR’s decisions have func­tioned at most as standards of interpretation,^[1274] and, unlike some other Latin American countries,^[1275] with little impact especially on topics such as self-amnesty laws and human rights violations during Brazil’s civilian-military dictatorship (1964-85).^[1276] Brazil was not only one of the last countries in the region to accept the IACtHR’s jurisdiction but is still one whose Supreme Court has very little dialogue with it.^[1277] Virgilio Afonso da Silva correctly argues, in this regard, that �the STF [Brazilian Supreme Court] frequently refers to foreign precedents as an argumentative tool, but almost never to those of the Inter-American Court’ and that, although there has been �an identifiable and increasing trend among the judges of the STF to use decisions of the IACtHR as an argumentative tool’, it is not as frequent as �references to decisions of the Supreme Court of the United States and of the German Constitutional Court...’.^[1278] Tom Gerald Daly also points out that, �while the power, centrality and assertiveness of the Supreme Federal Court has increased dramatically, there has been very limited penetra­tion of Inter-American case in the domestic constitutional order.,’^[1279] unlike what has happened in other Latin American apex courts.^[1280]

On the other hand, the IACtHR has also already explicitly criticised the STF. In 2010, in a very controversial decision that challenged the last developments in international law and IACtHR’s precedents,^[1281] the STF, with no dialogue whatsoever with the Inter-American precedents,^[1282] ruled, by a 7-2 majority, that the Brazilian Amnesty Law,^[1283] drafted during the civilian-military dicta­torship, was constitutional under the new democratic regime.^[1284] The Supreme Court’s decision had come out just six months before the IACtHR in the Gomes

Lund case,^[1285] which unanimously condemned Brazil for crimes committed during the dictatorship.

Not only is it a well-founded and strong precedent that is clearly at odds with the STF, but it also shows how divorced from the Inter-American Human Rights System Brazil’s domestic law still is. It is true that in the aftermath of the Gomes Lund case Brazil’s federal government complied with some of the IACtHR’s orders, such as making reparations to the victims and giving public­ity to the case, but not much more than that was achieved.^[1287] There were some positive effects, particularly a shift in the interpretation of the Amnesty Law by the Public Ministry pursuant to the lACtHR’s decision,^[1288] but the cases it brought to justice have seen limited success.^[1289] NGOs have also been empowered to defend human rights at the domestic level.^[1290] Other positive effects were the ratification of the International Convention for the Protection of All Persons from Forced Disappearance^[1291] in 2010^[1292] and the establishment of the National Truth Commission in 2011^[1293] to expose rights abuses during the dictatorship.^[1294] Despite that, it is misleading to ignore that the Inter-American Human Rights System has provided some valuable standards for human rights protection, governance, and the rule of law. If not normatively binding, it has served as a �reflective interpretative tool’ that translates political claims into international law, which then helps shape domestic law.^[1295] Incrementally, Brazil is opening

Brazil’s Compliance with the Rule of Law: International Perception 195 itself up to the Inter-American System and to international law, which is encour­aging for the enhancement of the rule of law in Brazil, but there are still various open questions as to whether a more fruitful collaboration between Brazil’s judiciary and the Inter-American Human Rights System (as is the case in neigh­bouring countries) will finally take root.

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