International Treaty Law Implementation PDF

Implementation International Treaty Law Content Relationship International/Municipal Law Obligatory Character of Treaty Commitments (pacta sunt servanda) Municipal Law cannot be Invoked in order not to Apply a Treaty Securing Performance by Special Treaty Regimes Territorial Appl...

Implementation International Treaty Law Content Relationship International/Municipal Law Obligatory Character of Treaty Commitments (pacta sunt servanda) Municipal Law cannot be Invoked in order not to Apply a Treaty Securing Performance by Special Treaty Regimes Territorial Application of Treaty Clauses Erga omnes partes Treaties  Implementation Treaties are concluded in order to be implemented. Application concerns the actual carrying out of the obligations and the correlative enjoying of rights enshrined in the agreement. Implementing international treaties involves the process by which a country incorporates the obligations and commitments outlined in a treaty into its domestic legal system.  Implementation Each party executes its commitments for itself. It must interpret the treaty so as to know what is required from it. If there are divergences on the question of implementation, a dispute may arise. It has to be settled according to the mechanisms of the ‘peaceful settlement of disputes’ under international law. It's important to note that the exact procedures for treaty implementation can vary widely among countries, as they depend on each state's legal and constitutional system. There are six main points which deserve to be mentioned.  1. Relationship International/Municipal Law This refers to the relationship between international law (governing relations between states) and municipal law (domestic law within a state). In many legal systems, international treaties become part of domestic law through a process of incorporation. The precise relationship depends on each state's legal framework.  Monism and Dualism In a monist system, international law and domestic law are considered part of a single, unified legal system. Treaties automatically become part of domestic law without the need for specific domestic legislation. In other words, international law is directly applied and enforceable in domestic courts. For example, Germany is often cited as a monist state. According to the German constitution, international treaties become binding without the need for additional domestic legislation. They are directly applicable and can be invoked in domestic courts.  Monism and Dualism In a dualist system, international law and domestic law are distinct legal systems. For a treaty to become part of domestic law, it must be explicitly incorporated through domestic legislation. In this system, international law does not automatically have direct effect in the domestic legal system; it requires a separate act of incorporation. Foe example, The United Kingdom follows a dualist system. For an international treaty to become part of domestic law, Parliament must pass specific legislation to give effect to the treaty's provisions. Until that happens, the treaty has no direct effect in the domestic legal system. 2. Obligatory Character of Treaty Commitments (pacta sunt servanda) The main rule in the context of treaty implementation is the obligatory character of treaty commitments. The principle pacta sunt servanda expresses this. Pacta sunt servanda is a fundamental principle in international law, meaning that states are obligated to fulfill their treaty commitments in good faith. It emphasizes the binding nature of treaties. Article 26 of the VCLT 1969 states: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ The principle is as fundamental as it is classic. It applies only to treaties in force for a State or other entity. A treaty validly suspended or terminated does not fall under the principle. 2. Obligatory Character of Treaty Commitments (pacta sunt servanda) When the municipal law of the State does not allow proper treaty performance, the State must either change its internal law before or after ratifying or acceding to the treaty, or withdraw from the treaty. The relatively small number of true conflicts between international and municipal law occurring in well-organized States are due to the careful scrutiny of the internal law requirements before becoming bound to a new treaty. It is important to emphasize that treaties are concluded on behalf of States, not of governments. The latter act in the name of the State; the State is the treaty party. This implies that a change of government does not have any impact on the validity of treaties. 3. Municipal Law cannot be Invoked in order not to Apply a Treaty This principle asserts that a state cannot use its domestic law as a justification for not complying with its international treaty obligations. Another fundamental rule of the law of treaties is to be found in article 27 VCLT 1969: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ This rule is closely linked with pacta sunt servanda. If a State could invoke with success its internal law so as to override the treaty, the binding nature of the commitment would wholly disappear. The State could at any time change its internal law in order to be freed from its treaty obligations. 4. Securing Performance by Special Treaty Regimes Some treaties establish special regimes or mechanisms for ensuring compliance, enforcement, or dispute resolution beyond general international law principles. For example, The World Trade Organization (WTO) agreements create a special treaty regime for regulating international trade. The WTO has its dispute settlement system, which allows member states to bring complaints against each other for alleged violations of trade agreements.  5. Territorial Application of Treaty Clauses This pertains to specifying the geographical scope to which a treaty applies. Not all treaties automatically apply to the entire territory of a state. Example, The Outer Space Treaty (1967) applies to outer space and celestial bodies. The territorial scope is beyond the Earth's atmosphere, and the treaty establishes principles for the use of outer space by all states. The Antarctic Treaty (1959) designates Antarctica as a scientific preserve and bans military activity on the continent. The treaty specifies that it applies to the area south of 60°S latitude, which is the territorial scope of the treaty 6. Erga omnes partes Treaties These are treaties that create obligations for all parties towards each other. The term "erga omnes partes" means "towards all parties”. For example, the Genocide Convention (1948) is an erga omnes partes treaty. All parties to the convention have an obligation to prevent and punish the crime of genocide, and any state can invoke the responsibility of another state for breaching these obligations.  Key aspects of treaty implementation Implementing international treaties involves the process by which a country incorporates the obligations and commitments outlined in a treaty into its domestic legal system. Here are some key aspects of treaty implementation in the context of international law: 1. Ratification 2. Incorporation into domestic law 3. Legislation 4. Constitutional considerations 5. Reservations and Declarations 6. Monitoring and compliance 7. Enforcement mechanisms 8. Withdrawal and Termination  Ratification Before a treaty becomes legally binding on a country, it must go through a formal process of ratification. Ratification is the act by which a state expresses its consent to be bound by the treaty. This is typically done by the head of state, such as the president or monarch, depending on the country's constitutional framework.  Incorporation into Domestic Law Once a treaty is ratified, the next step is to incorporate its provisions into domestic law. The methods for this can vary among countries. Some states automatically consider ratified treaties as part of their domestic law, while others may require specific legislation to adopt the treaty's provisions.  Legislation In many cases, countries need to enact new legislation or amend existing laws to ensure compliance with treaty obligations. This legislative process may involve consultations with relevant stakeholders, including government agencies, legal experts, and civil society.  Constitutional Considerations Some countries may require constitutional amendments to align domestic law with the provisions of an international treaty. This is particularly relevant when a treaty requires changes to fundamental principles or rights protected by the constitution.  Reservations and Declarations States may make reservations or declarations when ratifying a treaty. Reservations are statements by which a state purports to exclude or modify the legal effect of certain provisions in its application. Declarations are statements that clarify a state's understanding or interpretation of specific treaty provisions  Monitoring and Compliance After implementation, states are often required to report periodically on their compliance with treaty obligations. International bodies or committees responsible for overseeing the treaty's implementation may review these reports and provide recommendations.  Enforcement Mechanisms Some treaties include dispute resolution mechanisms or enforcement procedures. States may agree to submit disputes to international courts, arbitration, or other mechanisms specified in the treaty.  Withdrawal and Termination States may, under certain circumstances, withdraw from or terminate their participation in a treaty. This process is usually outlined in the treaty itself and may involve notice periods and specific procedures.