What was established by the Brazilian emperor as a constitutional customary rule was fully incorporated by the republican government as a non-enumerated constitutional clause. While the rule has not been included in any Brazilian constitution, it has been consitantly upheld in Brazilian case law and supported by Brazilian commentators.
It is relevant to point out that the establishment of constitutionality and legality in respect of the application of the Executive Order of enactment as if it was a statute developed the notion (and rule of law) of the direct applicability or self-execution of the Portuguese translation annexed to the decrees of enactment of the treaties ratified by the Brazilian government. This later aspect will be analyzed in the chapters ahead.
However, it is important to remember that the question is not whether the treaty as signed and ratified is self-applicable in Brazil. That is clearly not the case, as confirmed many times by the Brazilian Supreme Court. The text of the original treaty has no domestic legal effect, because a duly ratified treaty does not ipso facto enjoy the status of Brazilian domestic law. If there are differences between the original text of the treaty and the Portuguese translation, there is no question that the Brazilian text will prevail, as no authority is given to the treaty itself.14 Furthermore, if a treaty is revised, and the Brazilian government decides to be bound by the new text (as happened many times with the Paris Convention), another Legislative Decree and presidential Executive Order of enactment with the new annex are required.
The requirement of the presidential Executive Order of enactment to give domestic legal effect to the Portuguese translation of a treaty can be found in Supreme Court cases dating back as far as 1905.15 Therefore, for the reasons stated, no monist argument can be raised to claim direct applicability of the treaty in Brazil.16
Despite the clear requirement of a Portuguese translation annexed to a Executive Order of enactment, the 1988 Constitution and the most recent cases decided by Brazilian courts still refer to these annexes of executive orders of enactment as if they were the actual treaties, causing some confusion among the ones not familiarized with the sources.
The Brazilian 1988 Constitution goes as far as stating that the Federal Supreme Court (STF) has the jurisdiction to judge, at appeal level, decisions that are rendered at initial or final level, if the decision "declares a treaty unconstitutional," under article 102, III, b.17 This article is actually referring to the annex of the presidential Executive Order of enactment, and not to the treaty itself, as understood by many commentators supporting notions of monism.
It is also important to understand that these annexes are used as federal statutes and – similar to any federal law – they cannot survive in the Brazilian legal system if they are declared unconstitutional by the Brazilian Supreme Court.
Furthermore, the Superior Court of Justice (the highest appellate court of the Federal Court system), has exclusive jurisdiction to review, at special appeal level, judgments rendered on a single or final level by the Federal Circuit Courts, or State Appellate Courts, when the appealed decision infringes a treaty, or denies its applicability, as expressed in article 105, III, c of the Constitution. 18Again, article 105, III, c, is undisputably referring to the annex of the presidential Executive Order of enactment, and not to the treaty itself.
14 As an exception to this well established rule, the Supreme Court has decided, on April 26, 1963, the Civil Appeal 9.1615-RJ, R. Carnevale & Cia. V. Daum & Cie., where the Court has applied the article 6bis of the Paris Convention as written in the French text and not the translation annexed to the presidential Executive Order of promulgation (Executive Order #19,056, of December 31, 1929). The Supreme Court stated that a mistake in the translation, well known to all commentators, should not influence the outcome of the case. The opinion was published in the official reporter, at 25 RTJ 161(1963).
15 Habeas Corpus RHC #2,280 - DF, filed by Fernando Mendes de Almeida Junior, on behalf of Luigi Vicenzo Giovannetti, decided by the Supreme Court on June 14, 1905, Justice Lucio de Mendonça, O Direito, vol. 98, p.243)
16 On the monism and dualims generally, se H. Kelsen, “Les rapports de système entre le droit interne et le droit international public”, 14 Recueil des cours 227 (1926-IV); C. H. Triepel, “Les rapports entre le droit interne et le droit international”, Recueil des court 73 (1923).
17 C.F. supra note 44 at article 102, III b.
18 Id. at article 105. III C.