Binding Nature of UN Treaty Body Decisions Rejected by Brazil’s Electoral Court

[Alonso Gurmendi Dunkelberg is Professor of International Law at Universidad del Pacífico, in Peru.]

I want to draw readers’ attention to a recent decision of the Brazilian Tribunal Superior Eleitoral (TSE), Brazil’s top electoral court, regarding the mandatory nature of UN treaty body decisions. The case centers on former President Luis Inazio da Silva’s (better known as “Lula”) disqualification from the 2018 Brazilian Presidential elections. Lula is currently serving a 12-year sentence for corruption charges in the context of “Operação Lava Jato” (Operation Car Wash, in Portuguese) the largest corruption scandal in Latin America’s history.

Lula has long held that his (controversial) trial and conviction are part of a political plot by his enemies to prevent him from running, particularly considering he holds a comfortable lead in the polls, even after his incarceration. In 2016, he petitioned the UN Human Rights Committee to rule on due process violations. One important fact of Lula’s situation is that even though he has been convicted on appeal, he has not yet exhausted all available remedies to challenge his case before Brazil’s judiciary. In Lula’s view, his conviction is a violation of his right to be presumed innocent for the duration of his trial.

On August 17, the UN Human Rights Committee issued provisional measures noting a possible irreparable harm to Lula’s right to participate in the October elections. The Committee requested Brazil “not to prevent [Lula] from standing for election at the 2018 presidential elections, until the pending applications for review of his conviction have been completed in fair judicial proceedings and the conviction has become final”. Lula used these provisional measures to demand his registration as candidate, even when Brazil’s “Lei da Ficha Limpa” (or “Clean Slate Law”) bars convicted individuals from running for office, specifically arguing that Brazil was legally bound to comply with the Committee’s decision.

The deliberations at the TSE came barely 15 days after the Spanish Supreme Court issued its groundbreaking decision holding that UN treaty body decisions are binding on Spain. The Brazilian TSE decision, however, markedly disagreed. Presiding Judge Barroso held that the Human Rights Committee is an “administrative organ” whose recommendations “lack binding effect”. He also argued that the specific decision on provisional measures lacks “procedural requirements” that make it impossible to comply. After expanding on several unconvincing arguments (going as far as to citing the European Human Rights System’s margin of appreciation doctrine!), Barroso complained that the provisional measures had been issued without explaining the imminent and irreparable danger requirements. In particular, Barroso objected to the fact that the Committee’s final decision would –by its own admission- only occur after the elections had taken place, potentially causing its effects to be irreversible, rather than interim.

Barroso’s position was shared by 5 other judges, bringing the tally to a one-sided 6-1 result against complying with the Committee’s measures (click here for the press release summarizing each judges’ vote, in Portuguese). The lone dissent, by Judge Luiz Edson Fachin, placed particular importance in General Comment No. 33, where the Committee affirmed the binding nature of its own decisions. He recognizes that General Comment No. 33 was strongly opposed by Member States; a wide majority of which stated that Committee rulings were not binding. According to Judge Fachin, however:

“The reasons presented by States are relevant, but the criteria by which a treaty must be interpreted can only be, in the terms of Article 31 of the Vienna Convention, ‘the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Therefore, it is the Committee’s conclusions in its own General Comment that is most in line with the treaty’s object, at least as far as provisional measures are concerned”.

In his view, it would not make sense to allow the Committee to issue decisions on individual cases if the State is simply free to ignore them. “[N]othing can be more contradictory” – he says – “than to grant the Committee a power that can be unilaterally disregarded”. Just recently, in a letter addressed to Lula’s lawyers, dated September 10^th, the Human Rights Committee agreed, stating that “failure to implement such interim or provisional measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol”.

The case has now been sent to the Supremo Tribunal Federal (STF), Brazil’s Supreme Court, for final decision. By Constitutional provision, three TSE judges also sit at the STF, including judges Barroso and Fachin. Considering the STF’s usual reticence to give effect to human rights judgments, it is likely that it will agree with the TSE.

There is still a long road ahead when it comes to States accepting the binding nature of UN treaty body decisions, as the Brazilian example shows, and there is constructive criticism to be made on both Brazil’s and the Committee’s actions. For instance, there was never any concrete attempt by the Brazilian Executive to engage with the Committee itself. The Brazilian Ministry of Foreign Affairs’ press release addressing the provisional measures was completely dismissive, stating that “the conclusions of the Committee have advisory nature and do not possess mandatory legal effect”. Brazil could have sent a written submission to the Committee expanding on its concerns, asking it to lift the measures. In not doing so, it delegitimized the Committee’s role as the decider of its own case-law.

The Committee itself, however, also made mistakes. The original communication of provisional measures is a scant two-paragraph long, one-page document, that never evaluates the reasoning behind the decision. This was misguided, particularly considering the potential game-changing consequences for Brazil’s entire political system.

This is not a new problem. There has been consistent discussion of the way UN treaty bodies handle these individual complaints. In a 2012 article at EJIL Talk!, Professor Joanna Harrington already warned that the “lack of support for interim measures requests also reveals a need for efforts at the international level (…) to tighten the grounds for issuing such requests”. Specifically, she noted “the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for a cause” – exactly what Lula’s political rivals maintain. To avoid such suspicions, UN bodies need to establish clear guidelines for granting these measures, including a requirement of appending the full reasoning of each decision. This is of course not to say that the result at the TSE would have been different had there been more analysis by the Committee, but it could have potentially robbed the majority opinion of one of its more reasonable complaints.

In short, this particular episode in Brazil is evidence that while the Spanish precedent is an encouraging development, there is still work to be done before UN treaty body opinions achieve universal recognition as binding legal decisions.