This article is centrally aimed on critically analyzing and contextualizing Brazilian legislation and its Supreme Federal Court jurisprudence concerning the process of treaty incorporation in Brazil and particularly those documents that deal with Human Rights norms. Under this approach, the methodological framework used will pay special attention to the International Criminal Court Rome Statute insertion into the national juridical order.
For this purpose, after theoretically discussing the relations between the internal and the international juridical orders by presenting the monist and the dualist theories, the Supreme Federal Court jurisprudence will be investigated in light of a historical and evolutive perspective since the 1970s until nowadays. Following that, the Rome Statute incorporation into the Brazilian internal system will be specifically debated. At this moment, the debate on the Federal Constitution article 5th, paragraph 4th, which was brought about with the 2004 45th Amendment and deals with the International Criminal Court (ICC) jurisdiction, will be stressed.
The problematic of the existent relations between international and internal juridical orders is put under a double approach, that is, material and formal4. Within the material realm, this relation analysis is done from the conceptual division between juridical matters that are typical objects of a given system. It focuses, then, on how the international juridical order and the content and substance of its norms differ or converge from the juridical orders existent norms of States that compose the international society.5 On the other hand, based on a formal approach, the debate is focused on the existence or not of a hierarchy between norms with international nature and norms with internal nature, and, above all, which one would prevail ifPage 128there would be an eventual conflict that demands these norms application.6 With the purpose of answering these questions and trying to diminish the existent divergences and deadlocks, many theories have been brought about. In between those, a special position is granted to the Monist Theory (Monism) and the Dualist Theory (Dualism).
The monist theory7 states that international and internal juridical orders must be presented as a unity, that is, they belong to the same juridical system which is unified and indivisible. Inside this system, internal and international law differ solely as distinct branches of the Law. Accordingly, the existent relation between international and internal norms are understood as one of interpenetrative nature, between which the juridical interaction is done by means of an identity of sources and subjects (individuals), since they belong to the same united harmonic and convergent system.8 Therefore, the international law application inside the national sphere is done directly and automatically, and it is either unnecessary and not mandatory to formally receive it with a specific juridical instrument so this international norm could share of appropriate term and validity within the internal juridical order.
Nevertheless, the theory defenders are divided into two different lines of theoretical argumentation when it comes to deal with the existence or not of an hierarchy between internal and international norms and which one should be preferably applied when there are concrete cases of conflict or normative concurrence on the same matter.
For the internationalist monists, the juridical system unity is based on the international law primacy in comparison with internal law,9 as the national juridical order finds its validity plea from the foreign norms constructed upon the principle of pacta sunt servanda. Hence, it should be subordinated to it. Accordingly, situations whose legislation is done concurrently by both juridical spheres, international and intern, or that show controversies on the law application must be solved by using the international normative precepts.
Contrarily, for the nationalist monists,10 the adoption of international law internally is a mere State discretion, that is, the constitutional sovereignty has primacy over the supranational normativity. Thus, when there are divergences and considering that the international norms mandatory compliance exists internally solely due to the previous State consent by manifesting its unequivocal sovereign will, the norm to be applied is undoubtedly the one of internal, State nature.
On its turn, the dualist conception11 explains completely differently the relation between internal and international juridical orders. It departs from the fact that these two juridical orders are equally valid and on term, therefore they shall not be confused. They are, thus, impenetrable and independent juridical orders, what explain why it is impossible to have conflicts between these norms: the internal norm can only be applied within the State realm, whereas the international norm can only be in the supranational sphere. According to the dualists, an international norm12 that is fruit of foreign affairs and juridical compromises assumed by States in front of one or more international law subjects13must be previously incorporated into the State juridical order and integrated through its text formal reception using a specific legal diploma so it can generate effects.
In Brazil, by interoperating the jurisprudence of the Supreme Federal Court,14 one can note that it has been chosen the dualist doctrine, although under a mitigated version, denominated moderated dualism. Under this approach, it is not enough that a treaty is internationally ratified for it to be on term in the country. It is demanded as well to be approved by the National Congress15 and promulgated by the President of the Republic with the emission of a presidential decree. Even though this obligation cannot find any juridical support inside the constitutional norms16, the promulgation is seen as fundamentally and crucially important by the Supreme Court, and it is one of the phases that compose a perfect treaty incorporation in the country. Nevertheless, it is relevant to stress that, even under the formal necessity of the presidential decree, there is no obligation of it under Brazilian law to transform the treaty into law itself so it can be internally on term and sharing of full juridical force – the pure dualist theory.
However, to analyze the way treaties are received by Brazilian juridical order has been the topic of a number of studies recently. This is not due only to the undoubted relevance of this, but it is due as well to the imperative necessity to implement in Brazil a coherent system of treaty incorporation, specially those that deal with human rights. Such a debate has been done by the already implemented 2004/45th Constitutional Amendment. In order to do so, it is essential to discuss the way though which the Supreme Court has understood and interpreted it by means of its jurisprudence.
Until the extraordinary appeal trial number 80.004-SE17 in 1977, the Supreme Court has settled the International Law primacy over the Internal Law. In this appeal, it has beenPage 130decided that, in case of conflict between treaty and a later law, the law should prevail according to the principle lex posterior derogat legi priori. Therefore, it can be noted that, from this trial on, the Supreme Court has matched treaties and ordinary laws, a stand that is hotly debated by the doctrine.
The consequent discussion on this Supreme Court stand is based on many relevant reasons. On one hand, this decision is consistent with the political moment in Brazil by that time, which tended to affirm the idea of “national interest” based on the classical notion of sovereignty, that is, the complete non-interference inside the national territory of whatever international instruments.18 On the other, it can be noted that such a stand focused on the idea that a treaty is equivalent to an ordinary law does not take into account the specificity of International Law and its institutes.
It is believed as an International Law principle that, at the moment the State-parts conclude an agreement internationally, they are doing it based on good- faith. Since then, it is expected that the assumed compromises are going to be unrestrictedly fulfilled by its contractors. Accordingly, the Havana Convention on the Law of the Treaties, that is on term in Brazil since the Decree number 18.956 from October 22nd 1929, states undoubtedly about its continuity despite the State internal legislation.19
Furthermore, treaties have specific forms to end their effects, and they are different from the way internal laws are extinct. In general, internally it is used the principle lex posterior derogat legi priori, whereas externally the State must follow some particularities in order to get rid of the assumed compromises. If the State disagrees unilaterally from something contained in the treaty, it should complain or extinct it if it is about a bilateral agreement. Afterwards, the document ceases to produce effects for the part if it is a multilateral agreement.
It can be noted that the Supreme Court stand considering treaties as ordinary laws has left Brazil in a delicate...