Os direitos humanos fundamentais e a proibição da proteção deficiente aos refugiados no Brasil : análise da lei no 9.474/1997 à luz do binômio formado pelos princípios da dignidade da pessoa humana e segurança nacional

Abstract

The Act n. 9.474, from July 22, 1997 - Brazilian Refugee Law - represents an important landmark in the protection of refugee rights, being internationally recognized as a model to be followed. However, recent events involving the reception of refugees, especially from the Middle East region, by European states, as well as the increase of refugee applicants in Brazil, require a deeper reflection on the issue and its implications in the current context of international terrorism escalation, economic and financial crises as well as natural disasters around the globe. These changes in the internal and international scenario under the law validity, combined with the modern outlines of fundamental rights, such as prohibition of excess and prohibition of deficient protection, updating them as guiding aspects of actions to protect refugees, demands a hermeneutic approach towards to the necessary harmony between human dignity and national security. Thus, the objective of this work is to analyze the Brazilian Refuge Law under a new perspective: the binomial perspective formed by the principle of human dignity and national security. Recent events demonstrate the impossibility of disassociating the central problem of refugees with the treatment that must be given to these individuals by the state legal orders, and especially by the Brazilian State, once this issue is beyond the narrow national borders concept. Therefore, there is a need to review national legislation, considering the prohibition of a deficient protection and the fundamental rights granted to refugees in Brazil. In short, it is assumed that the going on transformations in the contemporary world requires an update of the Brazilian normative act, the National refugee’s law, in order to adapt its interpretation to the new paradigms and elements presented in the current scenario of humanitarian crisis. The method in this case presupposes an analysis of the Refugee Act and then considers a fundamental change in this category: the compatibility with national security. In order to reach this purpose, it uses analysis and interpretation of data provided by the UN High Commission for Refugees (UNHCR), the National Committee for Refugees (CONARE) and the Court of Auditors of the Union (TCU), correlating it with aspects from the doctrine in both inductively and deductively way. The simple application of fundamental rights or national security summon in such cases requires an adjust of normative teleology to the new times. And these new times demands a harmonization between the principles of national security and human dignity. To what extent does the principle of human dignity, including the right to a healthy and non-hostile environment to human beings’ survival is consistent with the need to preserve national security? This is the central question of this work.