Introduction
The treaty-making process is a critical component of international law, reflecting a nation’s commitment to global cooperation while ensuring alignment with domestic legal frameworks. In Brazil, a country with a rich history of international engagement, the process of entering into treaties is shaped by its constitutional provisions and legislative procedures. This article explores Brazil’s treaty-making process within its constitutional framework, focusing on the legal mechanisms for entering into international agreements, the country’s approach to the relationship between international and domestic law, and its stance on the Vienna Convention on the Law of Treaties (VCLT) of 1969. By examining these elements, this analysis provides insights into how Brazil balances its international commitments with national sovereignty and offers lessons for other countries engaging in treaty negotiations with Brazil.
Constitutional Framework for Treaty-Making in Brazil
Brazil’s legal framework for treaty-making is enshrined in its 1988 Constitution, officially known as the Constitution of the Federative Republic of Brazil. This document establishes the principles, roles, and processes governing the country’s entry into international agreements. As a federal republic, Brazil distributes powers among the Executive, Legislative, and Judicial branches, each playing a specific role in the treaty-making process.
Executive Power in Treaty Negotiation and Signature
Under Article 84, Clause VIII of the 1988 Constitution, the President of the Republic holds the authority to “conclude international treaties, conventions, and acts, subject to the approval of the National Congress.” This provision designates the President as the primary representative of Brazil in international affairs, empowering them to negotiate and sign treaties on behalf of the nation. The President’s role includes initiating discussions with foreign entities, determining the terms of agreements, and signing treaties as an expression of Brazil’s intent to be bound by them, pending further domestic approval.
However, the President’s power is not absolute. While the Executive branch is responsible for the initial stages of treaty-making, the process requires legislative oversight to ensure democratic accountability. This balance reflects Brazil’s commitment to a system of checks and balances, ensuring that international commitments align with national interests and constitutional principles.
Legislative Approval and the Role of the National Congress
The National Congress, comprising the Chamber of Deputies and the Federal Senate, plays a central role in the treaty-making process. According to Article 49, Clause I of the Constitution, it is the exclusive competence of the National Congress to “decide conclusively on international treaties, agreements, or acts which result in charges or commitments against the national patrimony.” This provision mandates that treaties signed by the President must be submitted to Congress for approval before they can become legally binding on Brazil.
The approval process in Congress typically involves a detailed review of the treaty’s terms, often conducted through specialized committees in both houses. Once approved by a majority vote in both the Chamber of Deputies and the Federal Senate, the treaty is forwarded to the President for promulgation. This legislative scrutiny ensures that treaties reflect Brazil’s national priorities and comply with constitutional norms. Notably, in cases where a treaty addresses human rights issues, Article 5, Paragraph 3 of the Constitution stipulates that such agreements can acquire the status of constitutional amendments if approved by a three-fifths majority in both houses, highlighting the special significance of human rights in Brazil’s legal order.
Promulgation and Incorporation into Domestic Law
Following congressional approval, the President promulgates the treaty through a decree, as provided under Article 84, Clause IV of the Constitution, which assigns the President the power to “promulgate laws, issue decrees, and regulations” necessary for their execution. The promulgation decree formally incorporates the treaty into Brazilian law, making it enforceable within the national legal system. Additionally, the treaty text must be published in the Official Gazette (Diário Oficial da União) to ensure public awareness and legal effect.
This multi-stage process—negotiation and signature by the Executive, approval by the Legislature, and promulgation by the President—demonstrates Brazil’s commitment to ensuring that international agreements are subject to rigorous domestic scrutiny. By embedding treaty-making within its constitutional framework, Brazil seeks to balance its international obligations with the protection of national sovereignty and democratic governance.
Monist or Dualist Approach: Brazil’s Perspective on International Law
The relationship between international law and domestic law is a fundamental issue in the study of treaty-making processes. States generally adopt one of two approaches: monism, where international law is automatically incorporated into domestic law without the need for specific legislation, or dualism, where international law requires a separate act of incorporation to become enforceable within the national legal system. Brazil’s approach to this dichotomy is nuanced, blending elements of both monism and dualism, though it leans more toward the latter in practice.
Brazil as a Dualist System with Monist Elements
Brazil is often characterized as a dualist state because international treaties do not automatically become part of domestic law upon ratification. Instead, as outlined in the previous section, treaties must undergo a process of legislative approval and presidential promulgation to gain legal force within the country. This requirement for domestic incorporation reflects a dualist approach, emphasizing the separation between international and national legal orders.
However, Brazil’s legal system also exhibits monist tendencies, particularly with regard to human rights treaties. Under Article 5, Paragraph 2 of the 1988 Constitution, “the rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party.” This provision suggests a degree of automatic recognition of international human rights norms, provided they are consistent with constitutional principles. Furthermore, as mentioned earlier, human rights treaties approved by a qualified majority can attain constitutional status, reinforcing Brazil’s commitment to international norms in this domain.
Hierarchy of Treaties in Domestic Law
In Brazil, the legal status of treaties within the domestic hierarchy of norms has been a subject of debate among scholars and jurists. Generally, treaties that have been duly approved and promulgated are considered to have the force of ordinary federal law. This means they prevail over state laws and prior federal legislation but are subordinate to the Constitution. The Supreme Federal Court (Supremo Tribunal Federal, STF) has consistently ruled that treaties cannot override constitutional provisions, underscoring the supremacy of the national Constitution in Brazil’s legal order.
The exception to this rule applies to human rights treaties, which, under Article 5, Paragraph 3, may acquire constitutional status if approved by the requisite majority. This unique provision elevates certain international commitments to the highest level of legal authority, aligning Brazil with monist principles in the context of human rights. However, for most other treaties, the dualist requirement of domestic incorporation remains the norm, ensuring that international law is filtered through national legislative and executive processes before becoming enforceable.
Implementation of Treaties in National Law
The translation of treaties into national law in Brazil follows a structured process. Once a treaty is signed by the President and submitted to the National Congress, its approval transforms it into a domestic legal instrument. The subsequent presidential decree of promulgation serves as the formal act of incorporation, enabling the treaty’s provisions to be invoked in Brazilian courts. However, if a treaty requires specific implementing legislation to be effective—such as the establishment of new institutions or the allocation of funds—additional laws must be enacted by Congress to fulfill these obligations.
This dualist mechanism ensures that Brazil retains control over the domestic impact of international commitments. It allows the state to adapt treaty provisions to the national context, ensuring compliance with constitutional norms and practical feasibility. At the same time, it can create delays in implementation, as legislative and bureaucratic processes may prolong the period between ratification and enforcement. Scholars have noted that this approach reflects a cautious balance between Brazil’s international obligations and the protection of national sovereignty (Accioly, Silva, & Case, 2012).
Brazil and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a cornerstone of international law, providing a comprehensive framework for the negotiation, conclusion, and interpretation of treaties. Adopted on May 23, 1969, and entered into force on January 27, 1980, the VCLT codifies customary international law principles and serves as a guide for states in their treaty-making practices. This section examines Brazil’s relationship with the VCLT and the implications of its stance for other countries engaging in treaty negotiations with Brazil.
Brazil’s Status as a Party to the VCLT
Brazil signed the VCLT on May 23, 1969, during the convention’s initial adoption, indicating its early support for the principles enshrined in the treaty. However, Brazil did not ratify the convention until September 25, 2009, when it deposited its instrument of ratification with the United Nations. This ratification came after decades of consideration, reflecting Brazil’s cautious approach to formalizing its commitment to international legal frameworks. Since ratification, Brazil has been a full party to the VCLT, bound by its provisions in the conduct of its treaty-making activities.
As a party to the VCLT, Brazil adheres to key principles such as the rules on treaty interpretation (Articles 31-33), the obligation to perform treaties in good faith (Article 26), and the conditions under which treaties may be terminated or suspended (Articles 54-64). These principles guide Brazil’s interactions with other states and provide a predictable framework for international cooperation. Brazil’s eventual ratification of the VCLT also underscores its commitment to aligning its treaty-making practices with globally accepted standards, enhancing its credibility as a reliable partner in international relations.
Implications for Other Countries
Brazil’s status as a party to the VCLT has significant implications for other countries seeking to enter into treaties with it. First, it ensures that negotiations and agreements with Brazil are conducted under a widely recognized legal framework, reducing ambiguity and potential disputes over treaty terms. For instance, other states can rely on the VCLT’s rules for treaty interpretation to ensure mutual understanding of obligations, even if domestic legal systems differ. This is particularly important for countries with monist systems, where international law is directly applicable, as they can expect Brazil to adhere to VCLT principles despite its dualist approach to implementation.
Second, Brazil’s adherence to the VCLT signals to other nations the importance of formalizing treaty-making processes through clear procedural steps. Countries engaging with Brazil should be prepared for the domestic approval process, which involves legislative scrutiny by the National Congress. Understanding that treaties require congressional approval and presidential promulgation can help foreign partners manage expectations regarding timelines and potential modifications during Brazil’s internal review process.
Finally, Brazil’s late ratification of the VCLT offers a lesson for other states on the value of patience and domestic consensus in treaty-making. While Brazil signed the convention in 1969, it took four decades to complete the ratification process, likely due to the need to align domestic legal and political priorities with international commitments. This highlights the importance of ensuring that international agreements are supported by internal mechanisms to guarantee effective implementation. Other countries can learn from Brazil’s experience by prioritizing domestic consultation and legislative preparedness when entering into treaties, particularly with states that follow a dualist approach.
Case Studies: Brazil’s Treaty-Making in Practice
To illustrate Brazil’s treaty-making process and its approach to international commitments, this section examines two notable examples: Brazil’s participation in the Mercosur Agreement and its ratification of human rights treaties under the Inter-American system. These cases highlight the interplay between constitutional provisions, domestic incorporation, and international cooperation.
The Mercosur Agreement
The Southern Common Market (Mercosur), established by the Treaty of Asunción in 1991, is a regional integration agreement between Brazil, Argentina, Paraguay, and Uruguay, with additional associate members. As a founding member, Brazil played a leading role in negotiating and signing the treaty, which aims to promote free trade and economic cooperation in the region. The treaty-making process followed the constitutional framework outlined earlier: the President signed the agreement, and it was submitted to the National Congress for approval. Following legislative endorsement, the treaty was promulgated through a presidential decree, incorporating Mercosur’s provisions into Brazilian law.
The Mercosur Agreement illustrates Brazil’s dualist approach, as the treaty required domestic incorporation to become enforceable. Additionally, subsequent protocols and amendments to the Mercosur framework have undergone similar processes, reflecting Brazil’s consistent adherence to constitutional procedures. This case also demonstrates Brazil’s commitment to regional integration while ensuring that international agreements align with national legal standards (Amaral Júnior, 2008).
Human Rights Treaties in the Inter-American System
Brazil has been an active participant in the Inter-American human rights system, ratifying key treaties such as the American Convention on Human Rights (ACHR) in 1992. The ratification process again followed the constitutional framework, with congressional approval and presidential promulgation. However, in line with Article 5, Paragraph 3 of the Constitution, the ACHR was approved with the status of a constitutional norm, reflecting Brazil’s monist tendencies in the sphere of human rights.
This elevated status has allowed Brazilian courts to directly apply provisions of the ACHR in domestic cases, demonstrating how international human rights law can influence national jurisprudence. Brazil’s approach to human rights treaties serves as a model for balancing international commitments with domestic legal priorities, offering insights into how dualist states can integrate global norms into their constitutional frameworks (Piovesan, 2013).
Challenges and Criticisms of Brazil’s Treaty-Making Process
While Brazil’s treaty-making process is grounded in a robust constitutional framework, it is not without challenges. One significant issue is the potential for delays in the legislative approval process. The National Congress, tasked with reviewing treaties, often faces a backlog of legislative priorities, which can postpone the incorporation of international agreements into domestic law. This can strain relations with treaty partners who may expect swifter implementation.
Another challenge lies in the tension between international commitments and national sovereignty. Brazil’s dualist approach, while protective of domestic autonomy, can sometimes lead to conflicts when treaty obligations require changes to existing laws or policies. For instance, environmental treaties, such as those related to climate change, often face resistance due to economic and political considerations within Brazil, highlighting the complexities of aligning international goals with national interests.
Critics also point to the lack of public participation in the treaty-making process. Although treaties are subject to congressional debate, there is limited space for civil society input, which can undermine transparency and accountability. Addressing these challenges requires reforms to streamline legislative procedures, enhance public engagement, and ensure that international commitments are supported by adequate resources for implementation (Mazzuoli, 2011).
Conclusion
Brazil’s treaty-making process is a complex interplay of constitutional provisions, legislative oversight, and international obligations. Anchored in the 1988 Constitution, the process involves the Executive and Legislative branches in a balanced system of negotiation, approval, and promulgation, ensuring that international agreements reflect national priorities. While Brazil primarily adopts a dualist approach to the incorporation of treaties into domestic law, its monist tendencies in the realm of human rights highlight a flexible stance toward international law.
As a party to the Vienna Convention on the Law of Treaties since 2009, Brazil adheres to globally recognized standards in its treaty-making practices, offering predictability and reliability to its international partners. Other countries can learn from Brazil’s experience by understanding the importance of domestic approval processes and the need for patience in building consensus around international commitments. Despite challenges such as legislative delays and tensions with national sovereignty, Brazil remains a committed player in the international arena, balancing its global responsibilities with the protection of its constitutional order.
References
- Accioly, E., Silva, G. E. do N., & Case, L. B. (2012). Direito Internacional Público. São Paulo: Saraiva.
- Amaral Júnior, A. de. (2008). Direito Internacional e Integração Regional: O Caso do Mercosul. São Paulo: Atlas.
- Constitution of the Federative Republic of Brazil. (1988). Retrieved from the official website of the Brazilian government.
- Mazzuoli, V. de O. (2011). Curso de Direito Internacional Público. São Paulo: Revista dos Tribunais.
- Piovesan, F. (2013). Direitos Humanos e o Direito Constitucional Internacional. São Paulo: Saraiva.
- Vienna Convention on the Law of Treaties. (1969). United Nations Treaty Series, Vol. 1155, p. 331.
