Detalhes bibliográficos
| Ano de defesa: |
2019 |
| Autor(a) principal: |
Tedesco, Thomaz Fiterman
 |
| Orientador(a): |
Silva, Roberto Baptista Dias da |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
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| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
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| Departamento: |
Faculdade de Direito
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| País: |
Brasil
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| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://tede2.pucsp.br/handle/handle/22976
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Resumo: |
This research is part of the discussion about the relationship between international judges and national authorities and their dispute for the last word. Specifically, it covers the European and Inter-American Courts of Human Rights and the authorities of the countries under their respective jurisdictions. It begins by defining the premise of the work, which is the direct relationship that has been established between different national and international points of authority on the same themes and issues, in particular human rights, and the potential conflict arising from them. It fixes that there is no way to structure the postnational space hierarchically. The European and Inter-American Courts and the national authorities under their jurisdiction are thus in a heterarchical relationship, in which neither of them should claim the last word on rights issues. In order to gauge the claim to speak last of each of these Courts, it opts for the comparative method, with the analysis of the history of each of the systems and the study of two decisive hermeneutic instruments for each one of them: the margin of European appreciation and the conventionality control doctrine. The comparison shows that while the European system was born to serve more modest purposes and, from the outset, forged the doctrine of the margin, the inter-American system was born in an undemocratic context on the continent, when it needed to act vigorously to curb systematic violations, having subsequently created the theory of conventionality control. The margin doctrine, assessed with the aid of the institutional dialogue doctrine, appears to facilitate a smoother interaction between national and international authority points, leaving spaces for deliberation to domestic authorities. Conventionality control, in turn, as handled by the Inter-American Court, has the potential to stifle dialogue, as the court wants the last word on all issues and intends to impose maximalist rulings on all countries in the region. The case study of egalitarian marriage, comparing demands judged by the two courts, seems to confirm the hypothesis. It concludes by stating that the most fluid methods of interaction have the greatest potential for resolving shocks between the focused legal orders, which is why the Inter-American Court should take steps towards its European counterpart and the national margin of appreciation |
