A imunidade de jurisdição de estado em relação a ato ofensivo ao direito internacional da pessoa humana na nova perspectiva jurisprudencial brasileira

Abstract

The foreign State has jurisdictional immunity for acts of empire. The jurisprudence of international and national courts has considered that jurisdictional immunity prevails, even in cases in which the act of the State violates human rights. That is the problem: by guaranteeing jurisdictional immunity in these cases, jurisprudence privileges State procedural law, to the detriment of human rights protected by International Law. The research presents a new approach to the issue of State immunities, by defending the increase of the hypotheses in which they can be suspended. One defends a less State-centric view of law, especially in cases of tension between the national State, on the one hand, and the individual, on the other. In Brazil, State immunity has evolved from jurisprudential construction; there is no specific national law on the subject. The Federal Supreme Court has enshrined the restrictive theory of State immunity since the judgment of the Genny de Oliveira case. The issue of immunities has returned to the center of the national legal debate due to the recent judgment of the Changri-lá case, which is important due to minister Edson Fachin’s vote. Minister Fachin has voted for the removal of State immunity, in the case of an act of empire against human rights. The work has used the hypothetical-deductive method to approach the theme. Since the end of the Second World War, there has been an expectation of protection of the individual's rights, enshrined in binding international instruments. The recognition of State immunity has frustrated this expectation of protection when it disrespects human rights. The proposed solution to the problem has come from an analysis of doctrine, jurisprudence, and comparative legislation. The analysis has concluded that it is possible to make State immunity more flexible when it disrespects fundamental human rights. The imperative force of international human rights instruments and the right of access to justice are the basic foundations of this conclusion, from which other favorable arguments towards flexibility of State immunity have unfolded.