Anthony Aust. Handbook of International Law

Подождите немного. Документ загружается.

Page 78

Express provisions

A treaty enters into force in such manner and on such date as provided for in the treaty or as the

negotiating states may agree (Article 24(1)). There are various ways:

On a date specified in the treaty.1.

On signature by both or all the states. This is common for bilateral treaties that do not have to

be approved by parliaments or require new legislation.

On ratification by both (or all) states.3.

Conditional on ratification by certain states specified by name or category. The Comprehensive

Nuclear Test-Ban Treaty 1996 cannot enter into force until the forty-four states named in

Annex 2 to the Treaty have ratified.

On ratification by a minimum number of states.5.

As in 4 or 5, but the minimum number of states must also fulfil other conditions, often

financial or economic, designed to ensure that the treaty does not enter into force until the

states that have a significant interest in the subject matter have ratified.

On the exchange of instruments of ratification (bilateral treaties).7.

On notification by each state to the other (or others) of the completion of its constitutional

requirements. This is more common for bilateral treaties.

In the case of a treaty constituted by an exchange of notes, on the date of the reply note,

although a further stage (such as in 8) is frequently added.

Date of entry into force

For multilateral treaties, it is usual to provide that entry into force will be after a specified period

following the deposit of the last instrument of ratification needed to bring the treaty into force (see

Article 84(2) of the Convention itself), the range generally being from thirty days to twelve months.

When a state ratifies after the entry into force of the treaty, it will enter into force for that state on

the date of deposit of the instrument of ratification or, more usually, after a specified period which is

usually the same period as for the original entry into force of the treaty.

86. See, for example, p. 82, para. (b) below.

87. ILM (1996) 1443.

88. See pp. 339-40 below on the Kyoto Protocol.

Page 79

Provisional application

The subject of Article 25 is sometimes loosely described as provisional ‘entry into force’, but it is

concerned only with the application of a treaty on a provisional basis pending its entry into force.

The growing need for provisional application clauses is caused by the need to bring into force early

those treaties (or at least certain substantive parts) which are subject to ratification and the problem

of achieving that objective, especially for treaties which require a substantial number of ratifications

for entry into force.

Preparatory commissions

A further approach increasingly employed is to establish a preparatory commission, or ‘prepcom’.

This is usually a body composed of all the negotiating or signatory states which is entrusted with the

task of making the necessary arrangements for when the treaty enters into force. The need for a

prepcom is particularly acute when the treaty establishes an international organisation.

Treaties and domestic law

Once a treaty has entered into force for a state, it does not necessarily become part of its law.

Treaty law and domestic law

operate on different legal levels. Treaty law creates rights and

obligations binding on states and other international legal persons. But, when a treaty confers rights

or imposes obligations on natural or legal persons, they can be given effect only if they have been

made part of the domestic law of a party.

Duty to perform treaties

Article 26 contains the fundamental principle of the law of treaties: every treaty in force is binding

upon the parties to it and must be performed in good faith (pacta sunt servanda). Article 27 is the

corollary: a party may not invoke the provisions of its internal law as justification for its failure to

89. See Aust, pp. 139–41.

90. See pp. 141-42, and the example of the International Criminal Court Prepcom, UN Doc.

A/CONF.183/C.1/L.76/Add.14.

91. As to international law and domestic law, see p. 12 above.

92. Cf. customary international law, p. 13 above.

93. See p. 12 above.

Page 80

perform a treaty. Thus, if new legislation or modifications to existing law are necessary in order to

comply with a new treaty, the state must ensure this has been done by the time the treaty enters into

force for it. Otherwise the state risks being in breach of its treaty obligations and will be liable in

international law if, as a result of that omission, another party, or one of its nationals, is harmed.

That parliaments are slow to legislate is no excuse. Nor can a state plead in its defence that there has

been a change of government, since the treaty binds the state, not its government.

It is very

difficult to plead that a treaty is invalid because its consent to be bound was expressed in violation of

its law.

Constitutional provisions

Some treaties, such as treaties of alliance, should not need to have effect in domestic law. For other

treaties, it may be necessary to create new criminal offences or other enforcement mechanisms. How

this is done depends on the constitution of each state. Although no two constitutions are the same,

there are two general approaches: ‘dualism’ and ‘monism’. Both are doctrines developed by scholars

to explain the different approaches. Although monism is often presented as the opposite of dualism,

this is misleading: many constitutions contain both dualist and monist elements. The United

Kingdom has perhaps the purist form of dualism; Switzerland perhaps the most developed form of

monism. In between there are many variations.

Monism

The essence of the monist approach is that a treaty may, without legislation, become part of

domestic law once it has been concluded in accordance with the constitution and has entered into

force for the state. However, in many cases legislation will also be needed. When it is not needed the

treaty is commonly described as ‘self-executing’. Although there are many variations, there are

usually three main common features.

94. See p. 407 below.

95. See pp. 24-5 above.

96. See p. 107 below.

97. See the summaries in Aust, pp. 146–9; and the constitutions of several states in Hollis, Blakeslee and

Ederington (eds.), National Treaty Law and Practice, Leiden, 2005. G. Flanz (ed.), Blaustein’s

Constitutions of the World, Dobbs Ferry, NY (loose-leaf), is an invaluable source for the texts of

constitutions. See also Reisenfeld and Abbott (eds.), Parliamentary Participation in the Making and

Operation of Treaties: A Comparative Study, The Hague, 1994; and F. Jacobs and S. Roberts, The Effect of

Treaties in Domestic Law, London, 1987.

Page 81

First, the constitution requires the treaty to be first approved by parliament, although there are

exceptions for certain types of treaty or certain circumstances. Secondly, a distinction is made

between treaties according to their nature or subject matter, some being regarded as being self-

executing, others requiring legislation. Thirdly, a self-executing treaty may constitute supreme law

and override any inconsistent domestic legislation, whether existing or future.

Dualism

Under the dualist approach, the constitution accords no special status to treaties; the rights and

obligations created by them have no effect in domestic law except in so far as legislation gives effect

to them. When legislation is specifically made for this purpose, the rights and obligations are then

said to be ‘incorporated’ into domestic law. This approach reflects, on the one hand, the

constitutional power of the executive generally to bind itself to a treaty without the prior consent of

the legislature and, on the other hand, the supreme power of the legislature under the constitution.

And treaty provisions that have been incorporated then have the status only of domestic law and can

be amended or repealed by later legislation, even if this would be in beach of the treaty.

United Kingdom

United Kingdom constitutional practice

The UK form of dualism was bequeathed to most of the former overseas territories of the United

Kingdom, and so has been followed in almost all the other fifty-two Commonwealth states.

The

treaty-making power of the United Kingdom is exercised by the Secretary of State for Foreign and

Commonwealth Affairs (the foreign minister). Although Parliament does not have to consent to the

Government entering into a treaty, under a constitutional practice known as the Ponsonby Rule a

treaty which is subject to ratification (or analogous procedure) is communicated to Parliament, with

a short explanatory memorandum. Twenty-one sitting days are then allowed for Parliament to decide

if it wishes to debate the treaty. This seldom happens unless implementing legislation is needed

anyway or the treaty is of major political importance, in which case the Government would normally

arrange for a debate.

98. See the detailed account of United Kingdom treaty law and practice in National Treaty Law and

Practice, n. 97 above, pp. 727–64; Oppenheim, pp. 56–63; and (1992) BYIL 704.

Page 82

Implementing legislation can take three main forms:

An Act of Parliament (statute). The text of the whole or part of

the treaty may be scheduled

(annexed) to the Act, which will provide that the scheduled provisions shall have the force of

law in the United Kingdom. Alternatively, the Act will merely make such changes to the law as

are necessary to give effect to the treaty.

100

An Act of Parliament conferring all the powers necessary to carry out obligations under future

treaties. For example, bilateral air services agreements can be concluded without the need for

fresh legislation each time since existing legislation, both primary and secondary, is sufficient

to implement them.

An Act of Parliament that provides a framework within which secondary legislation can be

made to give effect to a certain category of treaty, usually bilateral. The Act can either:

authorise the Crown to make secondary legislation incorporating the treaties into

domestic law. This is usually done by an Order made by The Queen in Council (an ‘Order

in Council’) to which the text of the treaty is attached. Such legislation is frequently made

for bilateral double taxation conventions

101

and social security conventions.

102

Normally

the Order does not have to be approved in draft by Parliament, although once made it can

be annulled by Parliament (the negative resolution procedure).

authorise the Crown to make secondary legislation to implement obligations imposed by

certain categories of treaty. The treaty is not attached. Instead, its provisions are

‘translated’ into the language of the Act. Orders in Council made under the International

Organizations Act 1968 give effect to treaties conferring privileges and immunities on

international organisations and tribunals, and persons connected with them.

103

The

Orders have to be approved, in draft, by both Houses of Parliament. This requires a short

debate in each House (the affirmative resolution procedure).

99. Compare the Diplomatic Privileges Act 1964 (part of the treaty) with the Consular Relations Act 1968

(whole of the treaty).

100. See the State Immunity Act 1978, which mainly implements the European Convention on State

Immunity 1972: see p. 162 below.

101. Income and Corporation Taxes Act 1988, section 788(10); SI 1991 No. 2876 (Czechoslovakia).

102. Social Security Act 1975, section 143; SI 1991 No. 767 (Norway).

103. See the Tribunal for the Law of the Sea (Immunities and Privileges) Order 1996 (SI 1996 No. 272).

Page 83

Interpretation and application of treaties by United Kingdom courts

British judges have not always been at their happiest when confronted by a treaty. Admittedly, they

are not helped by the strict separation of treaties from domestic law inherent in the dualist approach.

The courts have, however, developed certain principles which alleviate some of the strictness of

dualism:

104

If the language of legislation implementing a treaty is unambiguous, the court will not look

behind the legislation at the treaty, but if it is ambiguous the court will examine the treaty.

Ambiguous legislation will be interpreted in the way which is most consistent with the

international obligations of the United Kingdom, including unincorporated treaties (such as the

European Convention on Human Rights before it was incorporated).

In so far as a treaty has been incorporated by attaching all or part of it to legislation, the courts

should interpret it according to the rules of international law, in particular Articles 31–33 of the

Convention, even though the Convention has not been incorporated.

105

The courts of most other Commonwealth states take a similar approach.

European Community law

Because the United Kingdom is dualist, EC law is enforceable in the United Kingdom only because

United Kingdom legislation has so provided. But, when applying EC law, the British courts must

construe it as such law, not as United Kingdom law, and must follow decisions of the European

Court of Justice.

106

However, because decisions taken under the Common Foreign and Security

Policy (CFSP) and Police and Judicial Co-operation in Criminal Matters (PJCCM)

107

are not

directly applicable in the domestic law of the member states, they need specific legislation.

United States

The way treaties are dealt with under the US Constitution reflects both dualist and monist

approaches, and has rightly been described as

104. Oppenheim, pp. 56–63 and p. 1269, n. 2 (significantly, perhaps the longest footnote in that

noteworthy work); R. Gardiner, ‘Treaty Interpretation in the English Courts since Fothergill v. Monarch

Airlines’ (1995) ICLQ 620.