As already seen, before an international-level ratification, a treaty or convention negotiated and signed by the Brazilian President should be submitted to the National Congress. After being approved by both chambers, the President of the Senate enacts the Legislative Decree, which then permits the executive branch to deposit the instrument of ratification.
However, this is not enough to incorporate the treaty obligations into Brazilian domestic law, as per an opinion established by the Brazilian Supreme court and supported by all major commentators and professors of law, such as Prof. Celso Mello.10 The opinion of the court is that after the publication of the Legislative Decree by the Senate, the Administration must enact the treaty translated into Portuguese, by publishing the translation in the Federal Register, as an annex to a Executive Order of enactment.11
It is not debated that the undisputable, clear and reiterated case law from Brazilian highest courts (Supreme Court and Superior Justice Court), as well as the practice of the Administration require the presidential Executive Order of enactment of the Portuguese translation of the treaty. Only then does the Portuguese translation of the treaty become the law of the land in Brazil.12 Interestingly, there is no requirement for publication of a presidential Executive Order of enactment in the text of the 1998 Brazilian Constitution, as no other Brazilian constitution has ever had such condition. However, this constitutional customary rule has been followed since the very first international treaty was signed by Brazil, with Portugal, enacting the peace treaty on August 29, 1826, after the Brazilian proclamation of independence in 1822.
Another important example of the requirement of the presidential Executive Order of enactment is the Imperial Executive Order #9,233, published on June 28, 1884, enacting the original text of the Paris Convention, the first multilateral intellectual property related treaty ever signed by the country. The Paris Convention was signed by Brazil in Paris, on March 20, 1883, approved in Brazil, and then ratified by an instrument of ratification deposited on June 6, 1884. After ratification, the Brazilian Emperor enacted Executive Order #9,233, instructing the Brazilian empire to comply and enforce the Paris Convention according to its literal text found in the annex to the Executive Order. Since the treaty was only in French, what followed the very few lines of the Executive Order #9,233 was an annex with the Portuguese translation of the Paris Convention and its protocol.
There was never implementing legislation in respect of the Paris Convention. However, Brazilian statutes and IP statutes were not on the same level as the obligations contracted by the country in the Paris Convention, leading the Brazilian law to be regarded as not harmonized (not in compliance) with the provisions of the treaty.
Nevertheless, the imperial courts and government started to use Executive Order #9,233 as the source of legislative authority to comply with the commitments and obligations set by the Paris Convention. In the absence of implementing legislation, the Brazilian administration and courts used the presidential Executive Order giving publicity to the international act as a primary source of statutes, deemed capable of creating legal rights or obligations directly enforceable by the administration and in the courts.
The imperial constitution never contained an article or §§ under which the emperor had to enact treaties after the deposit of the instrument of ratification. However, this constitutional customary rule became established through the enaction of almost 200 international treaties by the Brazilian emperor. This customary rule was also incorporated into the republican regime after the proclamation of the republic.13
This background is important in order to comprehend the language and the meaning of the presidential Executive Order #1,355/94, enacting the WTO Agreement, published by a special edition of the Federal Registrar on December 30, 1994, as no major change in the system just described was implemented until this date.
10 Celso D. de Albuquerque Mello, Curso de Direito Internacional Público, Rio de Janeiro, Renovar ed., 9th edition, (1992) p. 180-87. [Prof. Celso Mello’s book is one of the most widely use book in this field of law in Brazil.]
11 All these steps have been accomplished with respect to the TRIPS Agreement, once the Executive Order #1,355 of December 30, 1994, has been published by the administration with the Portuguese translation of the WTO Agreement. It is worth mentioning that two commentators have an opinion that differ from the Supreme Court. Luiz Leonardos and Miguel Reale, both understand that after the Legislative Decree has been published by the president of the Senate, no other instrument is required to incorporate the treaty into Brazilian law. Although very erudite, this is a minority opinion that so far has not been accepted by Brazilian courts and Administration.
12 As a recent example of the Supreme Court case law requiring the presidential Executive Order of enactment of a treaty in order to have it incorporated into Brazilian domestic law, see Rogatory Letter #8,279 from Argentina, decided by the chief-justice from the Supreme Court, Justice Celso de Mello in 1997 (annexed in this opinion).
13 For a compilation of hundreds of international treaties negotiated, signed, approved (by the Legislative Decree), ratified and then enacted by a presidential Executive Order of enactment, see Antonio Augusto Cançado Trindade, Repertório da Prática Brasileira do Direito Internacional Público, ed. Fundação Alexandre Gusdmão, Brasília, 1986. Prof. Cançado Trindade (former general solicitor and legal advisor for the Itamaraty, now active judge of the Inter-American Court of Human Rights in Costa Rica) multi-volume treatise in Brazilian international public law and treaty law has a compilation of hundreds of treatises signed, approved and incorporated into Brazilian domestic law under the same procedure described herein.