OPENING CONSTITUTIONAL CLAUSE IN THE CONSTITUTIONS OF SOUTH AMERICAN COUNTRIES FROM THE JUSCOMPARATIVE POINT OF VIEW

towards South American multilevel constitutionalism

Abstract

The 1988 Federal Constitution provides in its article 5, § 2, the principle of non-exhaustiveness or the opening clause to fundamental human rights, that is, the rights provided for therein do not exclude others arising from the regime and principles provided for therein and international instruments celebrated by Brazil. This article seeks to analyze from a structural-comparative point of view how the South American constitutions qualify the opening to human rights, in terms of breadth, scope and normative status, in order to contribute to the discussion on the subject. In order to do so, an overview of the main South American Constitutions presented regarding their respective opening clauses to fundamental human rights, with emphasis on the positivization or absence thereof, the hierarchical status and the requirement of its own legislative procedure aimed at constitutional reception. . With regard to the methodology used, it is a quantitative and qualitative approach; of basic research, in terms of nature; exploratory and descriptive, regarding the objectives; bibliographic and documentary, regarding the procedures. Finally, concluded that the dynamism of the constitutional opening to fundamental human rights, that is, the dialogue between the internal and international order in this area, will allow the construction of a South American multilevel constitutionalism.