With the increase of Brazilian participation in the international community, the number of treaties binding the country has increased. Several international efforts, such as MERCOSUR, have involved treaties that have reached the Brazilian courts. A number of these new treaties, not yet enacted by a presidential Executive Order, were recently cited by parties in litigation as a source of statute before Brazilian courts. All decisions in these cases applied the same interpretation as in the old case law, finding that the absence of the presidential Executive Order of enactment prevents the incorporation of the treaty into domestic law, even after the treaty was duly ratified abroad.
By way of example, the Brazilian Supreme Court decided in 1999, in a en banc decision written by Chief-Justice Celso Mello (rogatory letter #8,279 from Argentina), that the Ouro Preto Protocol on injunctions and provisory measures among MERCOSUR countries could not be used in Brazil due to the lack of a presidential Executive Order of enactment. The court acknowledged that i) the treaty was signed in December 1994; ii) the Legislative Decree was published (legislative order #192/95); and iii) the instrument of ratification was indeed deposited on March 18, 1997. However, the Supreme Court stated that these acts were not enough to incorporate the treaty into Brazilian domestic law. The court denied relief stating that the constitutional requirements to incorporate the treaty into domestic law were not met due to the lack of a presidential Executive Order of enactment.19
Another recent decision that can be used to illustrate the mechanism of internalization of treaty obligations into Brazilian domestic law is the Supreme Court en banc decision in the action filed before the Supreme Court seeking to declare the unconstitutionality of a presidential Executive Order of enactment in respect of the Convention 158 of the International Labor Organization (Executive Order #1,855/96). 20
Chief-Justice Celso Mello wrote a long opinion for the Court describing the Brazilian constitutional system of treaty making power and the incorporation of treaty obligations into domestic law. In this case, the Supreme Court again decided, that the presidential Executive Order of enactment of a treaty with a Portuguese translation annexed to it is a constitutional requirement to incorporate a treaty into domestic law.21
19 Rogatory Letter #8,279 – Republic of Argentine, Justice Celso de Mello (Chief-Justice). The headnote of the case states: “... The Protocol of Provisional Measures adopted by the Council of the Common Market, on its seventh meeting in Ouro Preto/MG in December 1994, even though approved by the Congress (Legislative Decree #192/95), does not make it formally incorporated into the system of domestic positive law in force in Brazil. Despite having been ratified (instrument of ratification deposited on March 18, 1997), it has not yet been enacted through a Executive Order by the President of the Republic. Teachings and case law considerations involving the question of the ability to execute international conventions of treaties in the area of domestic Brazilian law. Precedents: 58 RTJ 70 Reporter Min. Oswaldo Trigueiro - ADI No. 1.480-DF, Reporter Min. Celso de Mello.”
20 ADI 1.480/DF is annexed to this opinion.
21 As stated by Chief-Justice Celso Mello in his opinion on the Rogatory Letter issues of domestic legal effect of the Portuguese translation of a treaty was decided in the exact same manner described herein.