A Ficção da Separação de Poderes e o Déficit Democrático nas Fontes do Direito Internacional: As Limitações do Parlamento Brasileiro

Abstract

The separation of powers is a constitutional dogma that assumes a participation, division and control of the sovereign monopoly of State´s internal and external power. However, intuitively we observe its continued concentration to the Executive, and in part of the judiciary, diminishing the Parliament participation, especially internationally. The growing importance and debate on the legitimacy of international law finds democratic obstacles, since the legal process limits the Parliament's participation in international treaties incorporating approval processes. This paper studies the proposals for legislative change in Brazil, which have aimed to alter this paradigm, which would include the effective participation of parliamentarians in foreign policy. The proposed methodology includes a theoretical dialectic between the legislative proposals and Niklas Luhmann theoretical perspective of society and policits, and international law criticism of Marti Koskenniemi. The results show that the response of the current policy reinforces the fictional and exclusively formal character of the separation of powers. This relationship contributes to the maintenance of democratic deficit surrounding the creation of international law.Key-words: Separation of Powers