Carolina França
Costa, Albino & Rocha Advogados in cooperation with HFW, São Paulo

Although the ratification procedure for international conventions is a matter regulated in accordance with the legal system of each country, there are, as a rule, two models of procedures for carrying out the analysis of international conventions with a view to their subsequent ratification, as defined by Article 2 paragraph b of the Vienna Convention on the Law of Treaties^[1] in 1969 as the 'international act so named by which a State establishes at the international level its consent to be bound by a treaty' – an expression that the convention considers synonymous with 'acceptance', 'approval' and 'adhesion'.

The first model, called uniphase, does not require the analysis of the international convention by the country's legislative body. The signature of the competent agent suffices for the text to be annexed into the internal legal system.

In the second model, called multiphase, a series of distinct stages are required for processing the international convention. In the case of Brazil, there are two types of procedures to enable the ratification of an international convention: (1) a simplified procedure that does not require approval in a legislative process, called the executive agreement; and (2) the standard multiphase procedure, in which the treaty must undergo approval by the National Congress.

The executive agreement does not require a legislative process and approval by the National Congress, which is referred to in order to designate a treaty that is concluded under the authority of the head of the executive, regardless of the opinion and consent of the Senate or the legislative competent body. The executive agreement has a simplified form and is drawn up by the President of the Republic, not subject to constitutional control.^[2]

Due to its simplicity, the executive agreement has been used by different federal administration bodies, for example, the bilateral cooperation memorandums for infrastructure, which create a space for institutional collaboration between Brazil and other countries with a view to facilitating foreign investment in the infrastructure sectors. The memorandum of cooperation establishes a framework of bilateral institutional collaboration between the state and foreign investors.

However, it is important to note that the international convention's contents only exist, as a matter of Brazilian law, after all steps have been successful for its inclusion in the internal legal system, according to the concepts of the existence, validity and effectiveness of legal standards.

After due insertion into the national legal system, the proposed international convention will also generate rights and obligations at an internal level, and these may even, if approved with the qualified quorum provided for in section 3 of Article 5 of the Federal Constitution, have status equivalent to that of constitutional amendments.^[3]

The Federal Constitution of Brazil 1988 (the 'FCB') establishes two main provisions that regulate the inclusion of international acts in Brazilian domestic law – or their ratification – since the negotiation by the Brazilian state of these international commitments, until they become standard existing, valid and effective provisions within the internal legal system:

1. in accordance with the provisions of section VIII of Article 84 of the FCB, the negotiation of international commitments is restricted to the exclusive competence of the President of the Republic; and
2. on the other hand, the National Congress is responsible, exclusively (therefore, non-delegable), under the terms of Article 49 item I of the FCB, to resolve treaties, agreements or international acts that entail burdensome charges or commitments to the national heritage.

Initially, the government's duly authorised representatives discuss the proposed matter and the international convention's content. After the negotiation reaches a conclusion, the text is signed by the competent authority. However, the signing of the text still does not imply legal obligations contracted by the Brazilian state. According to Article 84 of the FCB, only the President of the Republic, the Minister of Foreign Affairs, the Head of the Diplomatic Mission or any authority holding the Charter of Full Powers, granted by the President of the Republic, and endorsed by the Minister of Foreign Affairs are permitted to sign an international convention.

Once signed, the international convention is sent by the President of the Republic to Congress,^[4] with a message attached requesting the commencement of the internal ratification procedure. It is important to highlight that there is no constitutional provision establishing a legal deadline for the presidential application to Congress, which causes a backlog in signed but not ratified international conventions.

First, the Justice and Citizenship Constitution Committee analyses the international convention, which is subsequently sent to the Foreign Relations Commission and may also be presented to other commissions, depending on its content. On receiving the international convention, Congress must examine it, as it does in relation to any other proposals submitted for legislative processing, analysing it in light of the FCB and the internal legal system, and according to the precepts of the House of Representatives and the Senate's internal regulations. The House of Representatives is responsible for setting up a special commission for analysing the text and recommending action, which in turn, is revised by the Senate for final approval.

The exception to this rule refers to international acts assumed by Brazil within the scope of the Mercosur, which will be assessed, first, by the Representation Brazilian in the Mercosul^[5] Parliament^[6] – one of Congress's two permanent mixed committees – which attributes to the representation the examination of the presidential message and the subsequent decree draft in the cases stipulated by law.^[7]

In practice, special commissions usually require a considerable time to commence their activities. Thus, in the hypothesis that a special commission has not been installed and there is political interest in the assessment of a given proposition, the solution is for the proposition to be invoked directly in Congress's plenary on urgent request.^[8]

The ordinary procedure establishes that, once the text is approved by the special commission, a legislative decree is drafted and will be listed at Congress's plenary to be processed by other relevant committees, if any. If approved, the text will be forwarded to Congress's plenary for deliberation and, if accepted, it will be subject to review by the Senate. Subsequently, the Senate may either approve the Legislative Decree draft or reject it. Regardless of the outcome, the Senate must inform both the House of Representatives and the President, justifying the decision.

In the event of approval, the President of the Senate signs the international convention and publishes it in the Official Gazette. It should be noted that the legislative analysis phase only ends definitively if the text is rejected; otherwise, final approval will still depend on the President of the Republic's endorsement.

The presidential endorsement constitutes the final phase of the ratification procedure for international conventions. The President of the Republic promulgates the convention using a federal decree, where the full text is published, including rules for enforcement. In this sense, it is worth clarifying that, at the international level, the international convention enters into force in accordance with the criteria set out in the text itself. Normally, it is expected to come into effect after a month, six months or one year from the date of ratification or accession.

The presidential endorsement marks the effectiveness of the obligations contracted by the Brazilian Government, that is, it is called on to fulfil its responsibilities assumed on the entry into force of this new normative act. Subsequently, the instrument of ratification is deposited at the location agreed in the international convention or, in the case of bilateral international agreements, the exchange of notes between states, when they mutually communicate the completion of the ratification formalities phase.

The absence or failure to comply with the aforementioned steps prevents an international convention from being considered legally ratified and an integral part of the Brazilian legal system, abiding by relevant rules of existence, validity and effectiveness.