Incorporation of international law

Last updated

The incorporation of international law is the process by which international agreements become part of the municipal law of a sovereign state. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system. [1] [2]

Contents

Whether incorporation is necessary depends on a country's domestic law. Some states follow a monist system where treaties can become law without incorporation, if their provisions are considered sufficiently self-explanatory. [3] In contrast dualist states require all treaties to be incorporated before they can have any domestic legal effects. Most countries follow a treaty ratification method somewhere between these two extremes. [4]

Monist systems

In monist systems like the Netherlands, treaties can normally be ratified only after they are approved by the legislature, but the treaties then become legally binding in domestic law if they are self-executing.

France is another example of a monist system. Under French law, ratified treaties are considered to be superior to domestic legislation. [5] However ratification must often be approved by the French Parliament, especially in cases where the treaty "modifies provisions which are matters for statute". [6] In such cases, incorporation is often either redundant or very little is required.

Dualist systems

The dualist position is exemplified by the United Kingdom, where treaty-making is considered to be the exclusive competence of "Her Majesty's Government" (the executive). All treaties must be incorporated if they are to have any effect on domestic legislation. To do otherwise would violate the doctrine of the sovereignty of Parliament, which reserves legislative primacy to the British parliament. However, treaties may have interpretative value, and judges consider that Parliament, in the absence of clear contrary intention, did not intend for an Act to conflict with a ratified treaty.

The position of the United States is intermediate to the two extremes described above. The Supremacy Clause (VI.2) of the United States Constitution states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land." However, the term "treaty" has a more restricted sense in American law than in international law. Of the more than 16,000 international agreements entered into by the United States between 1946 and 1999, only 912 were ratified by the required two thirds of the US Senate of the Treaty Clause of the Constitution. [7]

The US Supreme Court has also limited the direct effect of ratified treaties, notably in the case of Medellín v. Texas (2008). Almost all treaties must be incorporated into federal law by both chambers of the US Congress to have effect.

Related Research Articles

Statute of Westminster 1931 United Kingdom legislation

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom whose modified versions are now domestic law within Australia and Canada; it has been repealed in New Zealand and implicitly in former Dominions that are no longer Commonwealth realms. Passed on 11 December 1931, the act, either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other's approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the statute removed nearly all of the British parliament's authority to legislate for the Dominions, it had the effect of making the Dominions largely sovereign nations in their own right. It was a crucial step in the development of the Dominions as separate states.

Treaty Express agreement under international law entered into by actors in international law

A treaty is a formal written agreement entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, only instruments that are binding upon the parties are considered treaties subject to international law.

European Communities Act 1972 (UK) United Kingdom legislation

The European Communities Act 1972, also known as the ECA 1972, was an Act of the Parliament of the United Kingdom which made legal provision for the accession of the United Kingdom to the three European Communities, namely the EEC, Euratom, and the Coal and Steel Community.

English law Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. It is also, more accurately, termed the law of England and Wales and is applied in agreements that parties will adopt the jurisdiction of England and Wales as well as for matters within the physical jurisdiction.

Law of the Republic of Ireland Constitutional, statute and common laws of Ireland

The law of Ireland consists of constitutional, statute and common law. The highest law in the State is the Constitution of Ireland, from which all other law derives its authority. The Republic has a common-law legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system, albeit with a popularly elected president, a separation of powers, a developed system of constitutional rights and judicial review of primary legislation.

Treaty establishing a Constitution for Europe the abandoned constitution of the European Union

The Treaty establishing a Constitution for Europe was an unratified international treaty intended to create a consolidated constitution for the European Union (EU). It would have replaced the existing European Union treaties with a single text, given legal force to the Charter of Fundamental Rights, and expanded Qualified Majority Voting into policy areas which had previously been decided by unanimity among member states.

A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, they can be appended to the constitution as supplemental additions (codicils), thus changing the frame of government without altering the existing text of the document.

Vienna Convention on the Law of Treaties treaty

The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are defined, drafted, amended, interpreted, and generally operate. The VCLT is considered a codification of customary international law and state practice concerning treaties.

Constitution of the Czech Republic supreme law of the Czech Republic

The Constitution of the Czech Republic is the supreme law of the Czech Republic. The current constitution was adopted by the Czech National Council on 16 December 1992. It entered into force on 1 January 1993, replacing the 1960 Constitution of Czechoslovakia and the constitutional act No. 143/1968 Col., when Czechoslovakia gave way to the Slovak Republic and the Czech Republic in a peaceful dissolution.

Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the states and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.

Coming into force or entry into force is the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect. The term is closely related to the date of this transition.

Government of Turkey Government of Turkey

The Government of Turkey is a unitary government established by the Constitution of Turkey as a constituted governing authority of a parliamentary democratic republic, constitutionally called the Republic of Turkey. The term can mean either the collective set of institutions or specifically the Cabinet.

United States and the International Criminal Court National relationship with the ICC

The United States is not a State Party to the Rome Statute of the International Criminal Court, which founded the International Criminal Court (ICC) in 2002 as a permanent international criminal court to "bring to justice the perpetrators of the worst crimes known to humankind – war crimes, crimes against humanity, and genocide", when national courts are unable or unwilling to do so.

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.

The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps most, are partly monist and partly dualist in their actual application of international law in their national systems.

The primacy of European Union law is an EU law principle that when there is conflict between European law and the law of its member states, European law prevails, and the norms of national law are set aside. The principle was developed by the European Court of Justice, which interpreted that norms of European law take precedence over any norms of national law, including the constitutions of member states. Although national courts generally accept the principle in practice, most of them disagree with that extreme interpretation and reserve, in principle, the right to review the constitutionality of European law under national constitutional law.

Treaty Clause Clause of the U.S. Constitution granting the President the power to negotiate treaties, which the Senate must ratify

The Treaty Clause is part of Article II, Section 2, Clause 2 of the United States Constitution that empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority vote of the United States Senate, become binding with the force of federal law.

Treaty of Lisbon Treaty amending the constitutional basis of the European Union

The Treaty of Lisbon is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon was signed by the EU member states on 13 December 2007, and entered into force on 1 January 2009. It amends the Maastricht Treaty (1992), known in updated form as the Treaty on European Union (2007) or TEU, and the Treaty of Rome (1957), known in updated form as the Treaty on the Functioning of the European Union (2007) or TFEU. It also amends the attached treaty protocols as well as the Treaty establishing the European Atomic Energy Community (EURATOM).

In parliamentary systems and presidential systems of government, primary legislation and secondary legislation, the latter also called delegated legislation or subordinate legislation, are two forms of law, created respectively by the legislative and executive branches of government. Primary legislation generally consists of statutes, also known as 'acts', that set out broad outlines and principles, but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.

References

  1. ↑ "Irish Treaty Practice". Irish Department for Foreign Affairs. Retrieved 3 September 2008.
  2. ↑ "EU Law: Glossary". Oxford University Press. Retrieved 3 September 2008. When a dualist state signs a treaty, the treaty becomes binding only if it is incorporated by a domestic statute.
  3. ↑ Aust, Anthony (2000). Modern Treaty Law and Practice . Cambridge University Press. p.  147.
  4. ↑ Romano, Cesare (23 August 2006). "A quick ABC of international law" . Retrieved 4 September 2008.
  5. ↑ Art. 55, French Constitution of 4 October 1958. Archived 15 May 2012 at the Wayback Machine
  6. ↑ Art. 52, French Constitution of 4 October 1958. Archived 15 May 2012 at the Wayback Machine
  7. ↑ Treaties and other International Agreements: the Role of the United States Senate (Congressional Research Service 2001).
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.