Brazil and the International Court of Justice: A Necessary Reconciliation

Abstract

In 1948, by not renovating its signature to the mandatory jurisdiction clause set out in Article 36 §2 of the Statute of the International Court of Justice (ICJ), Brazil placed itself at the margin of the most important international tribunal nowadays. This normative is recognized as an advance in international relations in its civilizing historical framework. Therefore, such an attitude denotes an incredulity vis-à-vis international law, in disagreement with the Brazilian fundamental charter of 1988. In its article 4, the Constitution includes governing principles in international relations: the solution to peaceful conflicts, the defense of peace, and the cooperation of peoples for human progress. Consequently, it is fair to think that the 1988 text is relatively receptive to international law, making Brazil’s refractory position to the ICJ inconsistent with the constitutional norm. Thus, the primary purpose of this article is to demonstrate that the arguments invoked to justify the waiving of the jurisdiction clause are unfounded. Theoretically, this article is justified by the need to take a stand in favor of a school of thought that believes in the maintenance of international peace through dialogue, reason, the application of moral principles and institutionalized justice. In order to convince the Brazilian State to reconcile with the ICJ, qualitative, bibliographical, and documentary research will be carried out based on comparative and historical methodological procedures, guided by a deductive approach grounded on the case study. In this regard, the article analyzes ICJ’s historical evolution, studies its role in the international system, and evaluates why the Brazilian State rejected its contentious jurisdiction. In light of the French and North American experiences, which also denounced the clause, the arguments upheld against the Court are critically examined. The conclusion is that the ICJ contributes to world peace by consolidating public international law and that Brazil should, therefore, return to the scope of the United Nations’ jurisdiction.