International attention has been drawn to the dispute of the custody of eight year old Sean among US and Brazil so much that this is meant to be a topic on these nation’s presidential meeting, scheduled for next month. Although child abduction is a sore topic and implicates into delicate disputes over different countries, this should not be the case regarding US – Brazil relations, considering that both countries have signed the Hague Abduction Convention.
In fact, the theory that determines the application of treaties in Brazil is the dualist, that does not considers treaties as part of the nation’s legal system. It means that, even after signature by the president of the country (executive branch), the treaty, in order to be applied to the citizens, must be approved by the congress (legislative branch).
The United States has a similar understanding of incorporation law (the Treaty Clause of the Constitution).
The problem is that, once ratified by two thirds of the Senate, the Treaty, in the US, becomes equivalent to the “Supreme Law of the Land”.
In Brazil, even with the recently adopted 45th amendment of the 1988 Constitution, only the Treaties regarding Human Rights will be at the same level of the Constitution, meaning that all other treaties, such as the Hague’s Child Abduction Convention, are considered equivalent to federal law, and therefore, beneath the Constitution.
This is the main reason why Treaties are not seen as an instrument of cooperation between countries by the Brazilian Judicial authorities: there will always be an interpretation to prevail with the Constitution or even the law of the land over international treaties, which seems to be the case, if not of the infant Sean, but certainly the majority of the 50 unresolved Hague Convention cases involving children who were abducted from the United States and are being kept in Brazil, according to the State Department of the US, in today’s edition of the New York Times.
As Justice Gilson Dipp of the Brazilian Superior Court (STJ) recently stated “The Judiciary can be a bridge or a barrier to international cooperation”. Because of our legal culture, not necessarily ignorance, in Brazil it has been more a barrier than any other thing.
