Treaty Enforcement by Brazilian Courts: Reconciling Ambivalences and Myths?
| Author | 1. Claudia Lima Marques 2. Lucas Lixinski |
| Position | 1 Chair of Private International Law, Federal University of Rio Grande do Sul, Brazil; S.J.D., Heidelberg University, Germany - 2 Ph.D. Candidate, European University Institute, Italy; LL.M., Central European University, Hungary; LL.B. Federal University of Rio Grande do Sul, Brazil. |
| Pages | 139-169 |
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Some myths are difficult to fight against. It is common to assume that Brazil does not ratify many international treaties, and if it does, that they are only “law on the books”, not “law in action”, a sort of “symbolic law”3 with little or no enforceability. Also one of the general assumptions amongst Brazilian litigation lawyers is that international law as a rule does not affect their practice.4 In other words, there is a feeling abroad that Brazil is not a friendly country for international law and a feeling in Brazil that international law is of no great importance for national litigation.3
The fact is that Brazil since 1992 has ratified 25 OAS Conventions4 (including 15 Inter-American Conventions on Private International Law),5 the 27 Conventions of MERCOSUR6 (the “Southern Common Market-MERCOSUR”,7 an imperfect Customs Union between Argentina, Brazil, Uruguay and Paraguay, and in the near future Venezuela, with associates, like Chile and Bolivia),8 58 Treaties in Environmental Law9 and all important recent UN Conventions, especially in human rights10 and in economic areas.11
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This also contrasts sharply with the fact that Brazil has a marked and almost constant presence in international courts.12 Is the assertion that international law is not relevant in Brazilian domestic legal practice true, though? This chapter attempts to answer to this question, so as to try to reconcile this ambivalence between what apparently is the Brazilian domestic practice with respect to treaties, and Brazil’s rather prominent position in international judicial activity.
Our basic contention is that international law plays a much larger role in Brazilian judicial activity (and consequently legal practice) than it is often assumed.13 In order to support these claims, it is necessary first to analyze the mechanism for treaty incorporation in Brazilian law, both from the perspective of the horizontal separation of powers, that is, the legislative and executive power’s perspective (treaty-making power, ratification and internalization of treaties), as well as from the constitutional perspective (hierarchy of incorporated treaties and their relationship with the constitution and other federal legislation),14 which necessarily also encompasses the debate on vertical separation of powers, that is, the way in which incorporated treaties interfere with state law, given the fact that Brazil is a federal state.15 These considerations will, whenever appropriate, be informed by relevant case-law.
After undertaking this analysis, we will look at the judicial practice regarding international treaties, more specifically the uses and interpretation of treaties by Brazilian courts, especially in light of the criteria set out in the two main Conventions on the Law of Treaties. The first one is the 1928 Havana Convention on the Law of Treaties, to which Brazil is a party.16 The second one is the far better-known Vienna Convention on the Law of Treaties (VCLT).17 Brazil is not a party to this Convention,18but, to the extent that it (at least partly) reflects customary international law,19 it is an important set of rules to be taken into consideration in our analysis. Another important step related to the analysis of judicial activity with respect to treaties is the inquiry as to whether treaties can be considered in Brazil to confer rights upon individuals (being thus self-executing), and how these rights are enforced.
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Among other things, we will argue that treaties are used by the Brazilian judiciary not only as such, but also as interpretive sources of internal law, and help to shape internal law-making by the legislator, or influence law-making even when the enacted statutes are not the direct result of the incorporation of treaties. Further, treaties are used to fill gaps in internal law, in this sense becoming “narrative norms”, to use Erik Jayme’s expression.20 “Narrative norms” are thus considered as norms that lead to the insertion of values as a relevant element to be taken into account in statutory interpretation. This happens especially with regard to human rights cases,21 in which international treaties are used to give meaning to open-ended provisions of internal federal or even constitutional law.22 These Treaties ratified or just signed by Brazil, as “narrative norms” bring more light and objectivity to the interpretation,23 by reinforcing one interpretation in favor to the values present at the Treaty.24 They can also reinforce the application itself of a prior existing rule of Brazilian municipal Law.25 Another important instance of use of treaty law is that of international treaties on intellectual property (IP) protection,26 which have been interpreted by the Brazilian judiciary as directly conferring rights upon private parties to a dispute.27
The use of treaties by the judiciary happens more often with regard to human rights,28 MERCOSUR (the regional economic integration process to which Brazil is a party),29 as well as international taxation30 and international trade law (including the GATT and WTO).31 The first area mentioned, human rights, invites a greater use ofPage 142treaty rules by the very international call of the topic, and also because federal and constitutional legislation on the matter is not as detailed as international law, at least if one excludes internal legislation merely incorporating international rules.32 As to the latter areas, they involve international disputes and transactions, and that is why international treaties are referred to. Another reason why these rules are mentioned more often than others in Brazilian case-law may be related, we suggest, to the fact that human rights treaties and international tax rules33 (in which international trade law rules are generally included, at least inasmuch as international trade rules mean commitments with regard to liberalization of a sector,34 or to import and export taxes)35have a differentiated hierarchical status as compared to other international treaties, as elaborated below.36
We will now analyze the way through which treaties become part of the Brazilian legal system, focusing on the constitutional provisions on the topic and their interpretation by the Brazilian Supreme Federal Court (Supremo Tribunal Federal – STF).
Generally, international treaties to which Brazil is a party, once incorporated, have the status of law. For that incorporation to happen, however, a rather long and complex procedure is required, involving the executive and legislative branches of government.
There are two constitutional provisions that refer to the treaty-making powers in Brazil, and they illustrate the difficulty of the matter. The first one is article 49, I of the 1988 Constitution, which reads: “It is exclusively the competence of the National Congress: I – to decide conclusively on international treaties, agreements or acts which result in charges or commitments that go against the national property; […].”37 The second one, dealing with Presidential Powers, is article 84, VIII: “The President of the Republic shall have the exclusive power to: […] VIII – conclude international treaties, conventions and acts, ad referendum of the National Congress; […]”.38
This means that an act of the Executive branch in signing a treaty will not be valid unless the National Congress confirms its validity.39 No Constitution in BrazilianPage 143constitutional history, except for the Empire Constitution of 1824, has explicitly listed the matters for which Congressional approval is necessary.40 This has led to a long scholarly debate as to whether all international treaties should be referred to Congress. Part of this debate is explained by the urge to oversee the power of the Executive to conclude international treaties closely, especially if one considers the widening importance and impact of international treaties on the everyday life of citizens.41
Some international lawyers have argued that Congressional approval could be dispensed with, depending on the subject matter of the treaty. According to supporters of this position, notably Hildebrando Accioly, the following acts did not require any action from the Legislative branch: (1) acts dealing with matters that fell under the exclusive competence of the Executive branch (as determined by constitutional rules); (2) acts concluded by diplomatic personnel on matters of concern to the places where the said diplomats are stationed; (3) acts related to the interpretation of currently existing treaties; (4) acts that merely complement an existing treaty (as long as they do not constitute a separate instrument requiring independent ratification, that is); (5) the ones that aim exclusively at establishing the grounds for future negotiations; (6) those for extending the temporal validity of a treaty prior to its expiration; and (7) extradition reciprocity statements.42
Accioly sought support for his argument in Brazilian and foreign national practice on the matter,43 and this was the position adopted by the Brazilian Ministry of Foreign Affairs for several years, until the previous uncertainty was settled by changes in the constitutional text with the Constitution of 1967. Therefore, the...
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