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16 Issues Aviation L. & Pol'y 147 (2016-2017)
International Conventions on Aviation and the Brazilian Constitution: The Case of the CDC

handle is hein.journals/isavialp16 and id is 151 raw text is: 





           International Conventions

                       on Aviation and the

                 Brazilian Constitution:

                   The Case of the CDC


                   by Delphine Defossez*

1.  Introduction

  Plato differentiated norms from values or conventions. Norms
protect values but the two are different and should not be con-
fused.' However, the approach  taken by the Federal Supreme
Court of Brazil with regard to that nation's Consumer Code has
disregarded this principle. Indeed, the norms that are enacted
within Brazil's Constitution should not be mixed with values, in
this case the protection of the consumer. The approach taken by
the Federal Supreme Court is also dangerous on another level as
it does not respect the principle of reciprocity with regard to trea-
ties. It seems that the Court itself has confused values with inter-
national obligations.
  The  exercise of a State's power is based on a legal infrastruc-
ture, which is anchored in a constitution that guarantees mini-
mum   rights to the population.2 These rights are preserved by
institutional mechanisms based on the concept of the Rule of
Law.  Brazil has ratified both the Warsaw and the Montreal Con-
ventions, which apply to liability cases involving international
transportation by air. The Warsaw   Convention  established a
fault-based system of responsibility and a limitation of liability
for air carriers. The Montreal Convention of 1999 modernized

* LL.B, Maastricht University; LL.M., European University Institute; LL.M.,
Swansea University; Ph.D. candidate, Universidade de Brasilia (UnB), Bol-
sista da Capes.
1   RICHARD MARBACK, PLATO'S DREAM OF SOPHISTRY (1999).
2   Not all modern societies have a Constitution to limit the sovereign's
    power. For example, in the United Kingdom the Parliament is seen as the
    sovereign, having the power to change any rules that exist in its political
    system. See A.V. DICEY, THE LAW OF THE CONSTITUTION 27-49 (Ox-
    ford Univ. Press 2013).

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