O controle jurisdicional de convencionalidade dos atos do poder público no tocante às políticas públicas com base no minimum core obligation por um viés da teoria da interconstitucionalidade.

Abstract

This thesis presents the results of a research developed under the theme of the control of the conventionality of the acts of the public power. Given the immensity of the subject, the theme was delimited to focus on the jurisdictional control of the conventionality of these acts in the field of public policies, in Brazil, from the perspective of the theory of interconstitutionality, from General Comment No. 3 of 1990, of the CESCR, which affirmed the existence of a minimum core obligation to ESCR, seeking in this a parameter of control to the Public Policies. The justification of the research is based on the relevance of the contribution to the study of the theme, on the originality and alignment with the concentration area of the Postgraduate Program in Law of UNISC (Social Rights and Public Policies). Thus, the investigation sought answers to the following problem: Considering that the interpretative competence of the CESCR is already recognized by the Brazilian State, at the time of the ICESCR ratification, it is possible to conform, in Brazil, a control of public policy conventionality that consider the observance of the minimum core obligation to the effectuation of ESCR, based on an integration hermeneutics that dispenses with the conception of normative hierarchy, from the perspective of the theory of interconstitutionality? In the search for results, using the deductive method for approach and monographic for procedural purposes, the problem was confronted with the hypothesis that there would be a pragmatic possibility of establishing a control of public policy conventionality based on the minimum core obligation, starting from the assumption of integration of this interpretation into Brazilian law in light of the theory of interconstitutionality. Thus, among the results found, it can be said that the first premise is that it cannot be disregarded that Human Rights, in the Brazilian system, enjoy a multilevel protection, provided not only by the national system, internally, but also by the inter-American human rights system at the regional level, within the framework of the OAS, and by the global human rights system, at the universal level, within the framework of the UN. The second premise is that the viability of perfecting the conventionality control theory hitherto developed in Brazil arises with the possibility of establishing a hermeneutic of integration, detached from the hierarchical normative notion, using the pro homine principle applied to in light of the theory of interconstitutionality, that is, admitting the coexistence of different constitutional orders in the same legal and political space. The third premise was that, under the interconstitutional bias and the control of conventionality exercised based on the international normative set, it is possible to extract from the minimum core obligation the necessary normative force to be applied internally, either as a parameter of implementation or public policy control. Finally, the general objective of this thesis, which is to propose a tool that can contribute to the jurisdictional control of conventionality in public policy matters, would not be fulfilled if it proposed only the theoretical construction, without providing an instrument for could collaborate with the jurisdictional control of these policies. To this end, based on the minimum core obligation coined in each of the general comments, complemented by the ideas gathered in the CESCR's decisions of merit, as a final part of the thesis, a barema was proposed, a mathematical instrument devised by the French François Barrême (1638- 1703), which could serve as an indication for the jurisdictional control of public policies to be carried out through collective actions, based on the fourth premise, which constitutes the realization of the practical possibility of the control that is sought in this thesis.