Proceduralization of international norms and the deficit in the application of international sources

foundations for a law introducing the norms of Internacional Law

Abstract

This article examines the limited use of international law sources within the Brazilian legal system, arguing that this pattern reflects a structural deficiency in the domestic procedural framework governing the reception and application of international norms. Although international law is formally incorporated into and constitutionally recognized within Brazil, it remains marginal to everyday legal practice.

The study seeks to identify the structural causes of this gap. Specifically, it: (i) outlines the constitutional foundations for the application of international law in Brazil; (ii) analyzes how domestic law organizes—or fails to organize—the relationship between international and internal sources of law; and (iii) evaluates whether the existing framework provides sufficient legal certainty for integrating international norms into judicial reasoning.

The central question is why legal actors, including highly trained judges and practitioners, invoke international law only in exceptional circumstances rather than as a routine component of legal decision-making. The article contends that this pattern does not stem from ignorance or hostility toward international law, but from institutional and procedural shortcomings that impede its regular use. Methodologically, the study is exploratory and doctrinal, employing a logical-deductive approach grounded in Brazilian and foreign scholarship, official documents, and case law.

The findings suggest that the problem is structural: while Brazilian law formally acknowledges the validity of international norms, it lacks clear doctrinal and institutional pathways for their interpretation, hierarchical status, and systematic application. The article concludes that enhancing the effectiveness of international law in Brazil requires the development of a coherent procedural framework capable of translating formal recognition into consistent legal practice. It therefore advocates the adoption of a comprehensive statute—analogous to Brazil’s Law of Introduction to the Norms of Brazilian Law (LINDB)—to govern the incorporation, status, interpretation, and application of international law within the domestic legal system.