13
lutte elle-même vers les sommets suffit à remplir un coeur d'homme.
Il faut imaginer Sisyphe heureux."194
34.
Those who feel triumphant with the recent insertion of paragraph 3 in Article
5 of the Brazilian Federal Constitution, hostages of a formalist Law and having
forgotten material Law, do not seem to realize that, from the point of view of
International Law, a treaty such as the American Convention ratified by a State,
binds the latter ipso jure, thus resulting immediately and directly applicable, whether
it has previously obtained parliamentary approval by either simple or qualified
majority. Such domestic provisions, -or let alone, interna corporis provisions- are
mere facts from the international legal system perspective, that is, from the point of
view of the legal international system and the international responsibility of the
State, they are entirely irrelevant.
35.
The international liability of the State for proven violations to human rights
remains intangible, regardless of pseudo-legal maneuvers of certain publicists (as
the creation of different modalities of prior parliamentary approval of certain treaties
with expected legal consequences, the requirement of previous conditions for the
direct applicability of humanitarian treaties within domestic law, among others), who
merely offer the States empty excuses to try to avoid their commitments of
protection of human life in the international adversarial environment of human
rights. To sum up, the international protection of human rights constitutes an
irreversible human conquest, which shall not be defeated by melancholic
circumstances.
36.
As we live in a surrealistic world, if not irrational, I had already expressed - in
the Memorial that I submitted to the inauguration panel of the III National
Conference of Human Rights at the National Congress in Brasilia in May 1998 - a
warning against eventual and future restrictive constitutional amendments. More
than a decade has gone by, and that was exactly and regrettably what has just
happened. The empty legal formalism prevailed over the identity of purpose between
domestic and international law regarding to the integral protection of rights inherent
to the human being. In my 1998 premonition, I warned about the risks of future
restrictions to the provisions of Article 5(2) of the Federal Constitution of 1988:
"Modify it to adapt it - that is, to imprison it - to the hermetic
and positivist thesis of the “constitutionalization” of treaties, would
imply, in my opinion, a conceptual regression in our country in that
respect. We have to go beyond the static “constitutionalization” of
human rights treaties. Here, again, a fundamental change of mentality
becomes essential, with a better understanding of the subject matter.
It is not possible to continue thinking within legal categories and
schemes created decades ago, facing the reality of a world which no
longer exists."195
194
.
A. Camus, Le mythe de Sisyphe, Paris, Gallimard, 1942, p. 168.
.
A.A. Cançado Trindade, "Memorial em Prol de uma Nova Mentalidade quanto à Proteção dos
Direitos Humanos nos Planos Internacional e Nacional", 51 Boletim da Sociedade Brasileira de Direito
Internacional (1998) pp. 90-91.
195