Abstract: This study aims to stablish a parallel among the Constitutions of Part- States, which are divided into three blocks, considering that the first one takes into account the applicative principles, and the last two ones the competence for some processual acts in international field. The achieved decisions refer to an unlimited sovereign they are currently endowed, the Constitutions of Part-States, as well as the process to reach harmony with the same ones and the question of Mercosul- Court creation, with autonomy about Mercosul decisions and the same hierarchy as the Constitutions of Part- States have. The article has the purpose to compare Constitutional rules that instruct the same subject in order to deffine what are the main hindrances that delay International Treaty approval and its effective application, both externally and internally.
Resumo: Este estudo tem como objetivo estabelecer um paralelo entre as Constituições dos Estados-Parte, que são divididas em três blocos, considerando que o primeiro leva em conta os princípios aplicativos, e os dois últimos se relacionam à competência para alguns atos processuais no campo internacional. As decisões alcançadas referem-se a um poder soberano ilimitado que dotam atualmente as Constituições dos Estados-Parte, bem como ao processo para alcançar a harmonia com os mesmos e a questão da criação do Tribunal do Mercosul relativas à autonomia sobre as decisões do Mercosul e a hierarquia existente nas Constituições dos Estados-Parte. Assim sendo, o artigo tem igualmente o objetivo de comparar as regras constitucionais que instruem o assunto e definir quais são os principais entraves que atrasam a aprovação dos tratados internacionais e sua aplicação efetiva, tanto externa quanto internamente.
Contents: Introduction. 1. The aplication of constitutional principles. 2. Competence of legislative power in the part-states. 3. Competence of executive power in the part-states. Conclusions. Bibliography
INTRODUCTION
The present research, deals with the processualistic of international acts, specially, the acts in MERCOSUL, a significant subject in both national and international levels for, taking into account the stage where mankind is, the real trend is the union of the states with the same interests, that is, the consolidation of economic blocks looking for mutual strenght. The main concentrate point is to analyze all constitutional legislation related to the processualistic of international acts in each of the Part–States in MERCOSUL.
This study is consolidated into three blocks of related articles from the Constitutions of Part- States in order to make the reader to understand clearly about the similarities and differences among the articles.
The first block refers to the principles that are applied in each Constitution of Part- States; the second and third ones are related more specifically to the state, which has the competence of making international acts, considering firstly, the National Congress and then, the National Chief.
Face to the alluded comparisons, it was possible to stablish some relevant achievements, which could provide “if they are applied”, important changes in international relations, specially in MERCOSUL.
The first of them, assigns the ilimited supremacy of the constitutional rules are endowed, a problem that needs a fast solution for, on the contrary, it won’t be possible to stablish a reliable common market.
As a consequence of this question, it is necessary to harmonize the Constitutions of the Part- States, with the aim of promoting a faster integrational process.
The second one has the goal to create a supra- state organ, which is formed by representatives determined by the Part- States, with the same number and the same power of vote, no matter the economic position these country occupy, and as a result of that, creating the Mercosul Court.
This Court must be able to give its opinion about questions of legality, validity, interpretation and better application of the rules belonging to MERCOSUL, looking for the solutions of controversies created among the Part- States themselves, among the Part- States and particulars, among particulars, which belong to different Part- States.
The need of creating a Mercosul Court, is very significant for the improvement of international relations, making them faster and objectives, and so, providing a growth of the market as a whole.
If the purpose of MERCOSUL is to go from an imperfect Custom House union ( in that it currently consists) to an effective common market, it is essential to change the applied procedures nowadays in the international relations field, both externally and internally , in order to provide evolutions the market has demanded for a long time.
This article has the purpose of stablishing divergent points among the Constitutions of the Part- States, by means of a comparative study of the rules that discipline the subject, in a attempt to define the main hindrances that delay the international treaty approval and its effective application, both externally and internally.
Additionably, this article suggests the creation of a Mercosul Court, aiming at offering fast solutions to the questions of international rights agreed among the Part- States.
1. THE APLICATION OF CONSTITUTIONAL PRINCIPLES
“Art.4 – The Federative Republic of Brazil acts according to principles in its international relations as :
I – National Independence;
II – The prevalence of human rights;
III – Peoples self – determinance ;
IV – No – intervention ;
V – Equity among States;
VI – Peace defence;
VII – Pacific solutions of disagreement;
VIII- Terrorism and racism aversion;
IX – Cooperation among peoples for humanity progress;
X – Politic refuge concession;
Single paragraph : The Federative Republic of Brazil will seek for economical, political, social and cultural integration among Latin – American peoples, aiming at the stablishment of Latin- American community of Nations”. ( Constitution of Brazil. ).
The principles defined in this article are related to the international community and has the purpose to plan goals in which the Federative Republic of Brazil will firm its actions with others nations.
The word “ principle” doesn’t admit a concrete definition, and consists in a confluence of values and advantages that regulate the conduct rules of a specific nation.
Then, its essential content can suffer many changes, according to different levels of valuation, attributed to goods, people, facts, preconceptions, and finally to life occurrences in each society.
The Brazilian Constitution and the Paraguaian Constitution showed similarities in the article that deals with the principles, including in the use of the same words in many incisos. The way to list the principles is also equivalent, what is not alike in the Argentinian and Uruguaian Constitutions.
The incisos with the same style between article 4 of Brazilian Constitution and article 143 of Uruguain Constitution are respectively: I and 1: II and V; III and 2; IV and 7;V and 3; and the rest of them are almost corresponding. These similarities indicate that an harmony among the constitutional rules of the Part- States is possible and that they can facilitate the consolidation of an International Suprem Court for deciding about negotiations and treaties in MERCOSUL field.
Art. 27 – The Federal Government must assure its business and peace relations with foreign countries by means of treaties which are in conformity with the principles of public right stablished in this Constitutions. ( Constitution of Argentina. ).
This article demonstrates the supremacy of the Argentinian Constitution over the consolidated treaties with other countries, that is, all the treaties which don´t respect the principles of public right inserted in “Carta Maior” automatically will be considered unable.
The Argentinian Constitution, as well as the other Constitutions of the Part – States, condition the validity of the treaties agreed among themselves, to the confirmation by the members of the Congress and posterior legal course.
The procedures to incorporate a treaty to Argentinian rules correspond to:
a) The treaty negotiation and signature by the President of Republic (art.99.11);
b) The approval and rechazo as a function of control, are under the Congress authority ( art. 75. 22);
c) The treaty ratification, as a function of convalidation, is an ulterior act independent of its approval and it is under the Executive authority (art.31,in fine and art. 99. 11);
d) The treaty can be partially or totally refused, in the same terms as expected for the arrangement and sanction of the laws. ( art. 80 e 83 );
e) The publication of the ratification must be done in an Official Journal (art. 83 );
f) The ratification exchange ( in bilateral treaties ) and the deposit of a certain number of ratifications ( in multilateral treaties ), is the necessary condition for its applicability;
g) The denouncing of the treaty must be done through the Congress intervention and / or through the Executive, according to the cases ( art. 75, incisos 22 and 24 ), and in conformity to the rules of Viena Convention about Treaties Right;
Only after these legal courses, the firmed treaty will be applicable in external and internal fields.
So, the article 27 brings with it the defense of the dualistic theory, submitting the rules of the international right to the judgement, firstly, by the members of the Congress, in order to analyze if there is or not offense to Argentinian Constitution, and then, to approve or refuse the incorporation of the treaty to the rules of the internal right of the country. Quiroga Lavié states that:
“Los pueblos reinvindican para si la soberania y la auto determinación y no pueden desconocer que detrás de un argumento lógico puede encubrirse el poder efectivo de las potencias internacionales que determinan la creación del derecho internacional. Es por ello que siempre nos ha parecido conveniente mantener la plena vigencia de la supremacía de la Constituición sobre los tratados internacionales consagrada en el art. 27, lo cual no ha sido objeto de ninguna modificación en la reforma de 1994”.
Confirming, therefore, the dualistic theory. Yet, it´s known that the maintenance of the Constitutional text in the way as it is today, hinders the advance of the international principle, that is, the fast and effective practice , suitable to the needs of the international rights, revealed in these treaties.
In a certain way, the author isn´t totally wrong for, concerning to congener rights, it is always appropriate to be specially careful with the weaker countries, ( in economic terms, called countries in development ),for, if there was the institution of MERCOSUL, (Assunção Treaty) and the many compromises which were stablished face posterior treaties, having as a final objective the consolidation of an economic block perfectly integrated, it is urgent to promote the harmony of the Constitutions of the Part – States, for making faster the accomplished negotiations, if not in all the world, but mainly in MERCOSUL field.
Art. 6 – In International Treaties which are celebrated, the Uruguaian Republic will suggest the “clause” in which all differences appeared among the contracting parts, will be decided by the arbitration or other pacific means. The Uruguaian Republic will seek for an economic and social integration of Latin – American States, specially, referring to the common defense of its products and raw material . It will also propose the effective complementation of its public services. ( Constitution of Uruguai. )
The Uruguaian Constitution chose to stablish its principles into the context of the art.6, without promoting the quotation of the same ones in each inciso, as Paraguaian and Brazilian Constitutions have done.
Additionally, its possible to realize that there were not disparity among the listed principles in the Uruguaian Constitution and the other ones.
The above mentioned Constitution, suggested the use of pacific means for the solution of conflicts; a continuous search for economic and social integration of Latin -American States. However, due to the way this article was structured, important principles were not pointed out, principles which can be implicit or not, as it is the case of human right predominance, and people- self determinance.
Art. 143 – The Paraguaian Republic, in its international relations accepts the international right and disposes to the following principles:
1. National Independence;
2. People – self determinance;
3. Juridical equity among the States;
4. International cooperation and solidarity;
5. International protection of human rights;
6. International navigation of international rivers;
7. No – intervention and
8. The condemnation of all forms of dictatorship, colonialism and imperialism.
Art. 141 – The International Treaties validly celebrated, appoved by the Congress law and whose instruments of ratification were changed or deposited, are part of the internal legal ordainment with the hierarchy which determines art. 137. (Constitution or Paraguai).
As it was mentioned earlier the similarities between the article 143 of the Paraguaian Constitution and article 4 of the Brazilian Constitution are vast, what demonstrates the similitude of cultural – social aspects between the two countries, being this fact relevant for the facility of stablishing an integrated block with them.
In fact, the political, economical, social and cultural similarities which all countries belonging to MERCOSUL detain, have significant influence on the consolidation of it, although it has not been the “sine qua non” condition for the creation of a common market, for, on the contrary, there wouldn´t be the need of creating the European- Union. However, going back to Latin- American, where MERCOSUL is situated, it may be suggested that such facts were important for its creation.
The treaties are composed of celebrated agreements among States in order to stablish reciprocal relations in social, political, cultural and economic sectors, and so on. There are also treaties which ran upon the resolution of a determined conflict, or then, there are some other treaties which are endowed with a preventive intuition, avoiding certain acts or probable conflicting situations.
The article 141 of the Paraguaian Constitution, reinforces the defense of the dualistic theory, for, it submits treaties validity to the approval of the members of the Congress, as well as the change of ratification instruments in bilateral agreements, and the deposits in bilateral ones.
In its final part of article 141, there is a reference to article 137 of the Paraguian Constitution . This article rans upon the hierarchy conferred to the constitutional rules, to the treaties; conventions, and international agreements, the laws and other juridical disposals, underlining the supremacy of the constitutional rules about all the other rules.
2. COMPETENCE OF LEGISLATIVE POWER IN THE PART-STATES
Art. 49 – To solve definitively about treaties, agreements or international acts which cause charges or annoying obligations to the National patrimony. (Constitution of Brazil).
From the analysis of such article, it is clear the purpose that the legislator had to frieze that, it is exclusively up to the National Congress, the competence to solve any question related to treaties, agreements or other international acts, by means of which Brazil has the possibility of being responsible for, overcharging then, the National patrimony .
So, although the President, as well as any agents, can have letters with total authority, representing him for signing treaties, agreements or international conventions, however, these instruments aren´t self- applicables.
The National Congress has the exclusive competence to promote the analysis of any international treaty agreed between Brazil and other State, no matter if it belongs to MERCOSUL or not.
The processualistic of international acts supports the unnecessary countersigning of all international act by the Congress, suggesting that the paractice of such order could cause an excessive bureaucracy, promoting so, an overcharged work, that fatally, could cause a slowness in the procedures related to international acts, in opposition to the agility of the same ones.
The acceptable procedures for the applicability of an international treaty, that is, internally in Brazil, aren´t restrict to its approval by the National Congress ( Camara and Senate ), since its officialization is accomplished through the legislative edit properly published on the Official Diary of Union, without the text of the international act.
Therefore, such publishment, doesn´t mean the admission of immediate internal assembly of the referred instrument, but only a signal that its terms were accept. It´s important to remember that the members of the parliament are hindered to promote changes in the treaty text, for, this is a private act of the President of Republic (art. 49 – I ), therefore, they can suggest some alteration. For reaching the external and internal validity, many are the ways of procedures.
The first one is consolidated through the ratification of international agreement carried out by the Executive Power of Brazil, being this, previously authorized by the National Congress, for means of ratification instruments changing( bilateral treaties )or deposits of the same ( being multilateral treaties ).
Concerning to the internal validity, it will only exist after the promulgation by the President, and published on the Official Diary of Union, now with the text of the international act. From this moment on, the act becomes public, and consequently obligatory in Brazil internal field.
Art. 75 – The Congress has the competence to:
22- Approving or undoing treaties concluded with other countries and with international organizations and treaties with “ Santa Sé”. The States treaties among themselves and the ones carried out between Santa Sé and Argentina have superior hierarchy to the laws(…). The other treaties and conventions about human rights, should be approved by the Congress with two third of the votes of all members of each Camera to take profit of the Constitutional hierarchy.
24- Approving the integration treaties which transmit competence and authority to supra – state organizations in equality and reciprocity conditions, and which respect the democratic order and human rights. The dictated rules in consequence have superior hierarchy to the laws.
The approval of these treaties with Latin American States will require the absolut majority of the members totality of each Camera, after a hundred and twenty days from the declarative act.
The accusation of the referred treaties to this inciso, will demand the prior approval of the absolut majority of the members totality of each Camera. (Constitution of Argentina).
The article 75 of Argentinian Constitution, represents a great evolution in related means to International Right. Specially concerning to MERCOSUL.
In its inciso 22, it stablishes the Congress competence in approving or undoing treaties concluded with other nations, with international organizations and with Santa Sé; but the most significative part of this inciso that stablished a new pattern into international relations, giving expressive impulse to MERCOSUL, was the disposal of treaties and international agreements, in a hierarchical superior place to the proper country law.
This was the first step that should be given , for that Argentina could be integrated to new values which were being created, that is, it had acquired the ability to effectively participate of new economic blocks which were coming up, for, if the proper country laws derogated international treaties previously stimulated, it would be impossible to consolidate a serious common market.
Then, what´s the worth about moving all a “machine” of representatives of the Part – States, which after accomplishing several procedures required for the formulation and approval of a treaty, if such acts will be unable when the treaty will be derogated by a more recent internal law .
That is why this article is important, for, it puts international agreements and treaties in a hierarchical higher position to the Argentina internal laws, a position that is still inferior to the Constitutional Legislation of Argentina.
The question related to the supremacy of the treaties concerning to the internal laws in each country, is the fundamental base to the adequate validity and the creation of them. But, what causes doctrinaire discussions and the consequent appearance of different opinions among the jurists, is to know if the treaties must have or not superior hierarchy to the Constitution of each Part – State.
In the Argentinian Constitution there are ten international treaties, (five general treaties, two against torture, and one about child rights) which have the same hierarchy of it (Argentinian Constitution), since all of them deal with the questions related to the human rights. (art. 75. 22)
Then it comes the question: Why to conceed such level of hierarchy only to these treaties ? If the goal of MERCOSUL is ( in a long time ) to become a common market, as the European Union, where there is a Custom – House union, free circulation of production factors: capital and work, that is, the contribution of professional services by members of any Part – State, it is urgent a new constitutional context, which make possible a progressive opening, conferring “a priori” hierarchical equality among the constitutional rules and international treaties realized in MERCOSUL field.
Such equality would eliminate a previous ratification by the Congress, for posterior incorporation of agreed treaties among the Part- States in juridical order in each member country, turn them self- applicable.
This could represent more agility in getting solutions and consequently, more efficacy in stablished negotiations, for all these interminable debates realized among the members of the Congress, their countries and agreed international treaties, would desappear.
As a result, there would be deepening in the integration process, leading MERCOSULto an evolution nearer to the Community Right, which has hierarchical superiority, immediate acceptance by the juridical orders of each member country and self- applicability. ( adopted in European Union )
Nowadays, MERCOSUL adopts the Cooperation Right, being its nature of Public International Right; in this case, there isn´t a self- applicable supranational right, as it occurs in the Comunitary Right, the maximum that can be reached is a uniform right.
Still, the article 75, in its inciso 24, it is evident the way Argentina exposes its delegation, only relating to the competence and jurisdiction to the supra – state organizations but not in that refers to national sovereign.
It is very important to stablish such difference, for on the other hand, it could be being created possibilities for that supra –state organizations could make use of this article creating rules or systems that could be contradictory of the Argentinian Constitution. It would be the same as to leave the country at the mercy of external will and controls.
Argentina can delegate competence and jurisdiction to supra – state organs, as the inciso 24 of the article 75 says, therefore, the exercise of this competence will be subordinated to a jurisdictional control of constitutionality carried out by it, that is, Argentina recognizes the existence of supra- state organs, but it doesn´t put itself in a inferior hierarchy position related to this organs assuming a position of equality and taking part in elaborated decisions by them, even though, it doesn´t integrate them.
Therefore, such delegation must occur in equality and reciprocity conditions with the other Part- States and that respect the democratic order and the human rights, that is, Argentina even without integrating the supra – state organs, imposed, through this inciso, its power of given opinion and verifying if there are no offenses to its “Carta Magna” in pronunciated decisions by such organisms.
According to the second clause of inciso 24, it is possible to realize that argentinian constituintes stipulate favourable differences in the procedures for the approval of the treaties with Latin- American States in comparison to the others.
The difference is in the means of demanding which are more complex and difficult to execute, stablishing an implicit semi- rigidiness in its form, acting with care when analyzing decisions of the supra- state organisms, in order not to obey its Constitution, even, because of the relations sustained among countries in development with the rich ones, called “first world” are comprised of a suspicion feeling, by the least fortunate countries, for they know that those countries always have secret interests aiming only to obtain a proper advantage.
So, the maintenance of international relations, turns more real among similar countries, near or at least with a strong link, a link able to overcome differences, which are many from country to country, citizen to citizen , aiming to reach the solidness of an efficient common market, able to bring gains to their integrants, fortifying itself against economic exploiting of more powerful countries.
If it was possible the creation of European Union, even with all differences of cultures, languages beliefs and races, in favor of economic factors, the existent link, why wouldn´t be possible to stablish an effective common market in MERCOSUL, since the affinities are greater in all Latin –American.
While in European Union the link which makes possible the union of nations is the economic factor, here in Latin- American such factor is the responsible, at the same time, for the integration, that can be noted in MERCOSUL, but also as a reason for the delay in the improvement of its relations, for the economic instability of latin countries, cooperates to reduce their credibility for integrating MERCOSUL.
There were already some examples of bad succeeded integration attempts ( ALALC e ALADI ), in which the determinants for failure were the pseudo-competitiviness and the stipulation of the barriers by the countries in their economies, aiming to protect internal interests in each country, without thinking about the group intentions. So, their unsuccess.
Finally, the third clause disposes about the possibility of denoucement of the treaties by the argentinian nation, as due to politic reasons, as for inconstitutionality. The initiative about denouncing can be of the Executive Power or of the Congress.
Art.85 – General Assembly has the competence of:
7 – Edicting war and approving or disapproving with absolut majority the votes of components totality in each Camera, the peace treaties, alliance, trade and conventions or any nature of treaties, which celebrates the Executive Power with foreign potencies.
20- Concluding and signing treaties, needing for ratifying them, the Legislative Power approval. ( Constitution of Uruguai).
The Uruguaian Constitution, as the Brazilian one, was severe when formulated its rules related to the process of treaties approval, not proposing any kind of flexibility, as Paraguaian and Argentinian Constitutions have done.
So, the article 85, in its inciso 20, points out the General Assembly competence for the conclusion and signature of international treaties, depending on the prior approval by Legislative Power, to promote the ratification.
Art. 202 – The Congress has the obligation and assignment for:
Approving or refusing treaties and other international agreements signed by the Executive Power. ( Constitution of Paraguai ).
The article 202, in its inciso 9, stablishes to be of Congress duty, approving or refusing treaties and other agreements signed by the Executive Power. The Paraguaian Constitution, as other constitutions of Part- States, were unissonant in this point, delegating to the Congress the competence for treaties ratification, conventions and international agreements, but, only after its prior apreciation and concordance ( against ratification ) in each country, the referred documents will come into operation in Part – States external field.
All this process realized for the treaties homologation, agreements and international conventions, has its main reason, that is, the supremacy maintenance of emanated rules by the Constitution in each Part – State.
Consequently, it is necessary a former analysis of each treaty, agreement and convention firmed among the Part – States, passing by juridical knowledge of congressmen, for that, the disposal in their article doesn´t go against “Cartas Magnas ” in each country, offending however, the national internal sovereign.
3. COMPETENCE OF EXECUTIVE POWER IN THE PART-STATES
Art. 84 – The President of Republic has privately the competence of:
VIII – Celebrating treaties, conventions and international acts, submitted to the National Congress countersigning ; ( Constitution of Brazil).
This inciso stablishes as exclusive competence of the President the power of celebrating treaties, conventions and international acts, reinforcing the affirmative of article 49 analyzed before, that is, such acts depend on the prior approval by more than a half of the members of the National Congress.
It´s clear that with the President impossibility of signing treaties, they can be firmed by people chosen by him, generally, External Relations Minister or Diplomats.
Art.99 – The President of Nations has the following assignments:
Concluding and firming treaties with other States, agreements and other negotiations required for good relations maintenance with international organizations and foreign nations, receiving their ministers and admitting their consuls. ( Constitution of Argentina).
Before the 1994 constitutional reform, there was a numbering of treaties classes, disposing about those which the President could sign.
After the reform, such disposition was suppressed, putting all international treaties under the approval of th President of Republic, what demonstrates a clear elucidation of the law, avoiding interpretative divergences as Quiroga Lavie says, “this has already happened in practice”.
The competence delegated to the President to sign treaties can´t be destituted, for he is the State Chief and he is able to maintain political relations, aiming at interests for his country with other States.
Therefore, the Congress has the competence to disagree with the approval acts of the President when they judge them and such acts can cause damages to State, or when they can injure the constitutional dispositives.
In this case, it is up to the Congress not to approve them, that is, not to concede the presidential act ratification, denying the effectiveness of invalidating the treaty signed by the President and being internally or externally standing. The justice, in specific cases of application, can also exercise the constitutionality control.
It is pointed out the inutility of ratification by the National Congress of the called executive agreements, which “in thesis” deal with only about administrative subjects, as for example: the reversal acts, agreements in simplified form and the protocols.
We do not agree with such attitude, considering that, the president isn´t the only one to determine based in his own reason, what is right or wrong, the better or the worst for the State, so, there is the need of having the opinion like people representatives, too, aiming to protect constitutional principles and the nation interests.
At the same time, he is not allowed to stablish edicts with the power of the law, and he can not also approve treaties which can compromise the country face to other States.
Art. 159 – The Republic President, acting with the Minister or respective Ministers or Ministers Council correspond to :
15 – Receiving diplomatic agents and authorizing the exercise of their functions to foreign consuls.
20 – Concluding and signing treaties needing to ratificate them, the approval of the Legislative Power. ( Constitution of Uruguai).
The article 159, stablishes to the President the function of representing the State internally and externally.
Still, the article 168, in its inciso 15, specifies the President activity, who in assembly with the Minister or Ministers Council, must receive and concede authorization for the diplomats, to accomplish their activities inside the country.
Moreover, the article 168, but in its inciso 20, the Uruguaian Constitution clearly deals with the competence delegated to the President of Republic to firm treaties with the other states, and it stablishes as a condition for its legality and validity the ratification by the National Congress.
Art. 238 – The duty and assignment of the President are :
To manage external relations of the Republic. In case of external aggression and prior authorization of the Congress, to declare the State of National Deffense or concentrate the peace; negotiate and firm international treaties; receive the chief of diplomatic mission of foreign treaties and admit their consuls; designate embassadors, with the Senate approval. ( Constitution of Paraguai).
This inciso clearly institutes to the President of Republic the power of directing, negotiating and signing international treaties.
And more, it delegates to the President the function of receiving diplomats of other States and admitting them to their consuls; as well as designate embassadors, with previous approval of the members of the Senate.
CONCLUSIONS
Nowadays, the world society passes by a series of transformation, which reveal the need of union among the States consolidating the markets, with the purpose of major economic encouragement and profits. This makes evident a new era, which brings significant reflexes in juridical world, which is not restricted only to internal right and opens new ways to international right.
Therefore, such changes of the focus doesn´t happen in a easy and flexible way, for the internal right, taking into account the great space of time in that it vigorates, has already traced some paradigms, which don´t want to change, and just in these paradigms, are the problems where the international right needs to overcome for its perfect development.
The main and major paradigm, which needs to be supplanted by the international right, is the question related to the ilimited supremacy of the constitutional rules in each Part–State, which makes the approval and effective application of the international right difficult.
The present article, brought a comparison between the main rules included in the constitutions of the Part-States related to the international right actuation and what the dynamics of the processualistic, underlining MERCOSUL. Face to such analysis, it is possible to take some significative conclusions for a real evolution and revolution in international relations of MERCOSUL.
It´s noted the opening carried out by Paraguaian and Argentinian Constitutions, which in their recent reforms promoted significant changes supporting and authorizing the efficacy of decision taken by MERCOSUL cupule in their internal and juridical ordainments, without having to be submitted to the analysis and approval by the members of the Congress.
Brazil, therefore, instead of following the Argentinian and Paraguaian examples consolidating MERCOSUL, and turning treaties approval faster, decided for the bureaucratic form in its negotiations, delegating to the Suprem Federal Tribunal, the power of declaring promptly, the inconstitutionality of any decision proceeding from MERCOSUL cupule without having being approved by the National Congress before.
Uruguai followed the same line as Brazil, for in its “Carta Magna”, there is any opening reference in treaties approval, coming from supra- state organs, without passing by the members of the General Assembly. ( Constitution of Uruguai –85 )
MERCOSUL, as European Union, should be endowed for its own Court which had competence to judge the international questions, without having to delegate such decisions to jurisdictional organs of the Part – States, so there would be only one understanding , which would be accepted by all the members of the economic block, and could eliminate the risk of different opinions from a State to another one.
Unluckily, this is not possible yet, due to legislations ( constitutions of the Part- States), which restrain such attitude in MERCOSUL. There is the need of changing such limited conception face to new claims of MERCOSUL, for, if the will of the Part – States is to become a common and integrated market, its essential the creation of a MERCOSUL Court endowed by competence to opine about the questions of the validity, the legality, interpretation and the better application of the rules belonged to MERCOSUL, aiming to solve differences created among the Part – States; between Part – States and particulars, and between particulars belonged to different Part- States.
From the confrontation and analysis of the articles related to the competence, to firm international treaties delegated to the President of the respective States, it may be concluded the situation that , in spite of the State chief (or his subordinated ) being able to participate of studies and approval of the treaties, giving his signature as a guarantee of acceptance by the country, such act doesn´t worth, for both , the external and the internal validity, are necessaries to ratificate the act by the Congress of each country.
This represents a hindrance to a perfect development of the International Right, and consequently, it delays the process of international negotiations.
For MERCOSUL, which is still in its first steps, such facts arises as a barrier for a perfect evolution making the negotiations discredited and future integration plans more complete.
It is clear the need of respecting the sovereign of each the Part- States, for each country has its own interest, and within the capitalist system in which it is inserted, it aims to protect its richness, getting then more advantages.
Therefore, there is no way to stablish a common market, if there were not the decreasing of sovereign in each Part- State, similar to that one occurred to the citizen , when the state was constituted.
It´s the recovering of the old contractualism by which the State was formed by a pact : the social contract, which provided to individuals going out from the state of nature, ( where each one was for oneself, it was the law of “kill or die” ) and to become sociable citizens, living according to the rules stipulated by, the so formed, State. After the organization of the State, the individuals didn´t have their total freedom anymore, but they had given part of their liberty to constitute the State of right, leaving to the past the state of nature.
Like this, the constitution of MERCOSUL must be, for, if the will is to move from an imperfect Custom- House union ( in that MERCOSUL is formed nowadays) to an effectively integrated Common Market, it is significant to try to change the procedures carried out now for the internal and external validity of determined treaties, agreed in the level of MERCOSUL ,creating a supranational system, endowed of supra- state organs, constituting then, an International Court.
However, it doesn´t mean to create an authoritarian supra- state organ, where the decisions are pronounced without the participation and approval of the Part- States, but to promote the raising of a participative supra- state organ, putting the part- States in the same hierarchical position, independent of the economic incomes of each one, for, on the contrary, there could occur small privileges and integration could be broken.
Informações Sobre os Autores
Fernando Kinoshita
Doutor em Direito Internacional e Comunitário pela Universidad Pontificia Comillas, Espanha; Professor dos Cursos de Graduação e Pós-Graduação do Centro de Ciências Jurídicas da Universidade Federal de Santa Catarina; Pesquisador do CNPq e CAPES; Consultor em Direito Público Interno e Internacional, Cooperação e Negócios Internacionais.
Ticiana Cesar de Noronha
MSc. Student in Public International Law, University of Geneva
