THE RULE OF LAW IN BRAZIL AND INTERNATIONAL LAW: IMPACTS ON THE DOMESTIC LEVEL
Brazil has been an active player in international forums and has naturally emerged as a regional power in Latin America. It is, along with Argentina, Paraguay and Uruguay, one of the founding members of MERCOSUR, whose function has had its ups and downs since its inception in 1991.19 It is a member of the Inter-American Human Rights System, which comprises the American Convention on Human Rights (also called Pact of San Jose), the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
It is also an active participant of international organisations, such as the United Nations (UN), World Trade Organisation (WTO), World Health Organisation (WHO) and is a key partner (though not yet a member) of the OECD. It has agreed upon a set of international treaties on human rights and governance,182 The Rule of Law in Brazil and the Challenges of International Law with natural implications for the rule of law. It has also for many years exerted a strategy of â€?soft power’ especially through policies aimed at strengthening South-South partnerships and development activities,[1164] with the visible conseÂquence of bolstering its presence on the international stage.
Similar to most countries normally participating in such international forums, Brazil has incorporated numerous norms and principles from internaÂtional agreements into domestic legislation, some with constitutional status. Brazil’s 1988 Constitution already features a vast bill of individual and social rights, but the premise that those enumerated rights should be complemented by other norms and principles has existed at least since Brazil’s first Republican Constitution of 1891.[1165] The 1988 Constitution explicitly extended its application to international law by laying down that â€?the rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party’.[1166] It has also established that â€?the proviÂsions defining fundamental rights and guarantees are immediately applicable’,[1167] which can be extended to international law.
These provisions have led to doctrinal disputes over whether international law bears legal, constitutional, supra-legal or even supra-constitutional status when incorporated into domestic law.[1168] The Supreme Court had for years upheld the precedent[1169] that treaties and conventions have the status of ordinary law. After the Constitutional Amendment n. 45 in 2004, this precedent was partially overÂturned in a leading case judged in 2008 whereby the Court upheld the thesis that international treaties and conventions on human rights should be interpreted as having supra-legal status[1170] (part of the minority even acknowledged they were equivalent to constitutional norms). Their rank, according to the majority opinÂion, lies thus above ordinary legislation but below the Constitution.[1171] Yet they could formally obtain constitutional status if Congress ratifies them accordÂing to the same procedure adopted for constitutional amendments. The 1988 Constitution provides that â€?international human rights treaties and conventions which are approved in each House of the National Congress, in two rounds of voting, by three fifths of the votes of the respective member shall be equivalent to constitutional status’.[1172] Even if not approved according to such a procedure,
The Rule of Law in Brazil and International Law 183 their supra-legal status means, in any case, that they are parameters of constiÂtutional interpretation[1173] and sources of the â€?control of conventionality’, according to which any legal norm should be interpreted not only based on the Constitution but also on international treaties and conventions on human rights.[1174] Also interesting is the fact that the Brazilian Constitution expressly recognises the jurisdiction of the International Criminal Court.[1175]
The impacts of international law on the domestic level are, therefore, strong and well supported by that protective constitutional framework.
As a conseÂquence of Brazil’s longstanding history of diplomacy and consensus building, the country is part of various key international treaties and conventions on human rights - a movement that has intensified since the 1988 Constitution. Brazil is a signatory of international treaties or conventions on matters such as combatting torture and other cruel or degrading treatment or punishment;[1176] promoting human rights in general[1177] and social development;[1178] preventÂing, punishing and eradicating violence and discrimination against women;[1179] eliminating racial prejudice;[1180] promoting economic, social, cultural,[1181] civil, and political rights;[1182] protecting children in general[1183] and specifically against involvement in armed conflicts,[1184] prostitution and pornography,[1185] as well as persons with disabilities;[1186] preventing and punishing genocide;[1187] and protectÂing the environment,[1188] among others. In addition to the International Criminal Court, Brazil has also recognised the jurisdiction of the Inter-American Court of Human Rights[1189] since 1998, though such a recognition is far more nuanced in practice.[1190]Despite that, the incorporation of international law into domestic law is more intricate and characterised by â€?lower interaction and resistance’.[1191] The concept of supra-legality and the constitutionalisation of rights and guaranÂtees from international law apply only to international treaties and conventions on human rights. Other cases are interpreted as having the status of ordinary law once they are incorporated into national law.[1192] Brazil, similar to most countries,[1193] does not adopt the typical monist or dualist system. International treaties and conventions are not automatically incorporated into domestic law once they are ratified by the president nor do they require a law reproducing its content.
Instead, the Supreme Court set the precedent that international treaÂties and conventions, as set out in the Constitution,[1194] demand a â€?subjectively complex act’ involving both the President of the Republic and Congress.[1195] Therefore, international treaties are, in principle, only applicable into national territory after an agreement with the other international parties is reached, the congressional endorsement is obtained, the President of the Republic ratifies it, and, finally, an executive decree is published. In the end, there is no law in the strict sense, but a simple presidential decree functioning as an â€?executive order’[1196] issued after those four steps, a procedure that should thus not be categorised in any of such traditional concepts.[1197] Yet, even the congressional endorsement is more mitigated in practice, and many international treaties and conventions are simply incorporated into domestic law through â€?executive agreements’ which do not require the participation of Congress.[1198]The incorporation of such international norms into the Brazilian legal framework suffers from the natural difficulties of translating international norms and principles into standard practice at the domestic level, a phenomeÂnon that is common worldwide.[1199] In any case, though still very limited, Brazilian institutions - and the Brazilian Supreme Court, in particular - have increasÂingly adopted international treaties and conventions once they are incorporated
The Rule of Law in Brazil and International Law 185 into domestic law in their procedures and decisions.[1200] The enforcement of such rights is, however, less effective than needed, which is mostly a symptom of the whole legal framework, regardless of whether they were originally drafted in Brazil or in international forums. This mismatch between the constitutional promise and the realisation of rights, which is very typical in Latin America, has triggered fascinating discussions of mechanisms that may be able to make such rights more effective in the region.
Particularly important are the proposÂals to integrate Brazil and other Latin American countries into projects aimed at strengthening the realisation of such rights through the development of a network of international institutions, legal frameworks and â€?mutually supportÂive structures’.[1201] One such proposal, for example, is the Ius Constitutionale Commune en America Latina (ICCAL), whose goal is to promote, through law,[1202] what they call â€?transformative constitutionalism’,[1203] which is largely inspired by the belief that a â€?rights based, supranationally secured, and regionÂally rooted constitutionalism’[1204] is indispensable in making Latin American constitutionalism achieve its long-sought-after promise of realising human rights and overcoming many of its deficits in the quality of the rule of law and democracy.[1205]The premise that regional integration and international law are key elements for changing the landscape of a region impacted by severe social inequality, institutional weakness and an authoritarian legacy has proven, however, more challenging than expected. Brazil has been a central player in fostering such an integration as a strategy to strengthen its bargain power in Latin America - and also in other South-South partnerships. However, there are still structural self-reinforcing processes[1206] that push the country to look inward and even someÂtimes to act against these integrative developments. This reality has proven even more true during the Bolsonaro administration, which has continuously attacked Brazil’s neighbouring countries and regional organisations such as MERCOSUR and UNASUR. Despite that, international law matters greatly and Brazil, the biggest country and economy in the region, obviously needs to be connected to the world, and, more specifically, to its regional partners and institutions.
III.