Trends emerging among the legal system of States

8.3.1 Modalities of implementation

Two basic modalities of implementing national rules prevail

1 Automatic standing incorporation of international rules

· Such incorporation occurs if national constitution / law says that all state officials as well as national and other individuals living in the territory of the state are bound to apply certain present or future international law.

· An internal rule provides in a permanent way for the automatic incorporation into national law of any relevant rule of int’l (customary or treaty) law, without a need for a specific national law to incorporate.

· Therefore, any time a country signs a treaty, or a new customary rule evolves, states must comply with it, without any further action.

· Enables national system to adjust itself continuously and automatically to international rules.

2 Legislative ad hoc incorporation of international rules

· Int’l rules become applicable within the State legal system only if and when the relevant parliamentary authorities pass specific implementing legislation

· Such legislation can be:

a) Act of parliament translating treaty provisions into national law (statutory incorporation). Sets out in detail the various obligations, powers, and rights stemming from the international provisions.

b) Act of parliament which simply enjoins the automatic application of the international rule within the national legal system, without reformulating the int’l rule being incorporated (automatic incorporation)

o In substance, this works similar to #1, except it is on a case by case basis. Legislation would say something like Treaty X must be complied with, here is the text of Treaty X annexed. Requires courts, state officials to interpret the text of treaty.

· Cassese thinks preference should be giving to legislative ad hoc incorporation (#2) to ensure effective implementation.

· However, if int’l rule is self-executing, it is better to have the automatic (either permanent #1 or ad hoc #2(b)) incorporation of int’l rules. Better safeguards correct application of int’l rules, allows national legal system to adjust itself to int’l rules more easily.

8.3.2 The rank of international rules within domestic legal orders

· Some states tend to put int’l rules incorporated into national legal systems (whether automatically or ad hoc through legislative action) on the same footing as national legislation of domestic origin.

· This means that any national rule passed after the int’l law has been incorporated can amend or repeal incorporated int’l law. Int’l law can be set aside by an act of parliament.

· Other states give int’l rules a higher rank and status than nat’l legislation. This is linked to the nature of the national constitution.

o Where the constitution is flexible (can be amended by act of parliament), the only way of giving int’l rules overriding importance would be to entrench them in constitution, so that it is not possible for simple majority in parliament to over-turn them.

o Where the constitution is ‘rigid’ (lays down special requirements for constitutional amendments and sets up a court to review legislation so that legislature does not over-step its powers), if the constitution provides for the incorporation of int’l rules, then those enjoy higher status than normal law. This means that legislature can’t pass a law contrary to international rule, unless this law is enacted through a special procedure required for constitutional legislation. This system upholds the supremacy of int’l obligations.

8.3.3 Exigencies motivating states in their choice of the incorporation system

States regulate national incorporation of int’l rules on the basis of two different requirements:

1 Choose between a statist and internationalist approach

· States choosing a statist or nationalist approach tend to:

o Adopt legislative ad hoc incorporation (#2)

o Put int’l rules on the same footing as national legislation of domestic origin

· States taking an internationalist approach tend to:

o Opt for the automatic incorporation (whether standing (1) of ad hoc (2(b)) of int’l rules

o Accord int’l rules a higher status and rank than national legislation

2 Consider the relationship between the executive and legislative branches of government

· If government (foreign ministry) makes treaties without any parliamentary participation, problems may arise if:

o Treaty covers areas which come within purview of legislature

o This would allow government to bypass parliament – hence these countries do not like automatic standing incorporation (#1), but prefer ad hoc incorporation (#2).

· If Parliament does not play a role, or only a limited one, in decision to be bound by treaty:

o May be necessary for Parliament to given their consent to incorporation of treaty for it to take effect.

o In this case, states prefer ad hoc incorporation (#2) over automatic incorporation (#1).