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Is the WTO TRIPS Agreement
valid and self-executing in Brazil?

Treaty Making Power under the 1988 Federal Constitution

According to the 1988 Brazilian Federal Constitution, (hereinafter the Constitution) the power to contract obligations with foreign nations is divided between two branches of the federal government, the executive and legislative branch.

  The authority of the executive branch is found in article 84, VIII, of the Constitution, empowering the President to enter into international treaties, conventions and acts, ad referendum of the Brazilian Congress. Thus, the authority of the executive branch to bind Brazil by treaty will always be subject to ratification, which  will only occur after the Brazilian Congress gives the Administration consent to deposit the instrument of ratification.

As per the legislative branch, both chambers of the legislature (House of Representatives and Senate) participate in the process that authorizes the executive branch to ratify any treaty.  Article 49, I, of the Constitution states that it is exclusively the power of Congress to conclusively resolve matters concerning  international acts, agreements or treaties involving charges or commitments against the nation.  Thus, with the exception of executive agreements, also common in Brazil, Congress has the last word on all international commitments.5

The Brazilian constitutional procedure to sign, ratify and implement a treaty can be explained, systematically, by using the TRIPS Agreement as an example (since it is an international agreement to which the country became a member in 1994).

As an annex of the Agreement Establishing The World Trade Organization (WTO Agreement), one of the documents of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (Marrakesh Agreement), the TRIPS Agreement, is perceived by Brazilian constitutional law as part of the treaty referred to as the WTO Agreement. As will be demonstrated herein, the “single undertaking” approach of the Uruguay Round has influenced the Brazilian legal system, and led to a consideration of the need for only one constitutional procedure to sign, ratify and implement it.

Before setting out the Brazilian mechanism by which it becomes bound by a treaty, it is important to note that nowadays several countries multiple systems of contracting international obligations with foreign nations. There is the “classic” approach of ratification and enactment, usually found in constitutions and used for treaties within the United Nations framework. There is also the “new” approach, used by many nations for treaties creating economic and commercial alliances and free trade zones. As an example, this “new approach” is used in the US and has been described by some authors as “fast track”. The European Union also uses a “new” practice for contracting such treaties.

However, the above distinction does not exist in Brazil. The country’s constitutional and administrative law and practice make no distinction between “classic” treaties, with ratification and enactment, and free trade zones or the GATT rounds and the WTO Agreement. In addition to the constitutional provisions already set out herein, there is no “fast track” or any other manner to contract international obligations. Therefore, the process described in the next paragraphs for the signature, ratification and implementation of the TRIPS Agreement by the country was the same process used for signature and ratification of all other international treaties to which Brazil is bound, for example, the Paris Convention6.

5 The only international agreements on intellectual property ever considered executive agreements are the ones between the Brazilian PTO and the WIPO for training of Brazilian public officials and examiners and the PCT regulations (but not the PCT treaty itself, which considered a treaty).

6 Brazil applied until 1992 the 1925 Hague text of the Paris Convention as domestic law, by presidential Executive order #19,056 of December 21, 1929, since only the administrative clauses of the Stockholm text had been enacted by means of presidential Executive order #75,572 of April 8, 1977. Brazil only enacted the full text of the Stockholm Revision in 1992 by presidential Executive order #635 of August 21, 1992. Presidential Executive order #1,263 of October 10, 1994, enacted the declaration of extension and republished the full text of the Portuguese translation of the Stockholm Revision in the Official Gazette of October 13, 1994.