- Ahan Gadkari
UNDERSTANDING SELF-EXECUTING TREATIES VIA STATE PRACTICE
Updated: Feb 2, 2022
Consider this paradox, when a country ratifies a treaty, it is said to have consented to accept the treaty in its entirety (reservations and declarations being exceptions); but in some cases, the countries go ahead and refuse to adhere to its provisions. For example, Article VI, Clause 2 of the American Constitution has the provisions that "all treaties … shall be the supreme Law of the Land." Although it is evident that treaties on their own do not have the same effect as federal laws. In truth, they only become operational once these provisions come into force as Federal law with Senate and Presidential approval. Although this is the practice, it is a generally accepted principle in international law that certain treaties have a binding effect on countries. The treaty must fulfil the requirement of being a self-executing treaty to affect the country without any corresponding domestic legislature directly.
This raises the question as to which treaty will qualify as “self-executing” and which will not?
Whether a treaty is a self-executing treaty or not is decided by national judges on a case-to-case basis (Buergenthal, 1992). In order to understand this, the paper will first look at the two types of theories followed by countries on the nature of treaties applying to domestic law. These two theories are monism and dualism. They basically view the framework of domestic and international law as a single hierarchy and two separate hierarchies, respectively (Wildhaber, 1971). Countries following monism believe that certain treaties immediately are binding and immediately have an effect on the country. Once the treaty has been ratified, it can be invoked in national courts and is considered to be a part of the law of the country. Countries following dualism believe that a treaty does not affect domestic law until it has been reinforced by a legislature passed in the parliament. An example of dualism is how the European Convention on Human Rights became operational in the United Kingdom after passing the Human Rights Act 1998 in their parliament (Laws, 2000).
International law is diverse, and so are the types of procedures different countries follow for the acceptance of treaties. Some constitutions’ themselves mention the procedures for the ratification of a treaty. Some countries even have different treatment given to international treaty law and customary international law. Certain international organizations like the European Union often affect the domestic law of its member states. The member states of the European Union have to give effect to certain forms of community legislature. Although, it has an essential difference from self-executing treaties. The difference is that it is not for national judges to decide whether the provisions are self-executing or not, but rather for the European Court of Justice to interpret under its constitutive treaties. Other forms of international law formed via resolutions or such might not have the same effect for these states. Nevertheless, they might consider them as forms of "soft law" and look into them to interpret the intent of the law. Sometimes, proclamations made by the judicial organs of international organizations such as the Inter-American Court of Human Rights affect their member states. Although these proclamations are not binding on the member states, the national judges seem to refer to these for authoritative interpretation.
Therefore, a case-to-case approach must be taken while analyzing the procedures and precedents set in different countries. To examine the concept of self-executing treaties, this paper will compare the precedents set by different jurisdictions. If the reader wishes to conduct a similar analysis, they can do so by looking into the different national yearbooks on international law. Mostly, these yearbooks will have a section devoted to the relationship between international and national law.
The most significant issue that comes up for national courts is whether the treaty is self-executing? If the treaty can be applied without any additional domestic legislature having passed to reinforce it. This question came up in the case of Czesław S v State Treasury and Minister of the State Treasury, wherein the Polish Constitutional Court held that since the treaty provisions referred to domestic measures to be taken, the treaty was not self-executing in nature (Bug river claims, Czesław S v State Treasury and Minister of the State Treasury, 2003). Essentially, when the treaty refers to domestic measures to be taken, it does not in itself create new obligations. It instead reinforces the treaty's intent for the domestic legal process to take measures for the same. A similar issue was raised in the Sosa case in the United States of America. In this case, the court considered whether the International Covenant on Civil and Political Rights was a self-executing treaty. The American Supreme Court has also declared that the International Covenant on Civil and Political Rights is not a self-executing treaty (Court, 2004). The Federal Supreme Court of Switzerland also examined the self-executing nature of the International Covenant on Civil and Political Rights. The issue before the court was whether Article 13(2)(b) and (c) were self-executing in nature. The court examined whether the treaty was partially self-executing and did so by checking whether there existed a minimum core content for the treaty to be applicable. The court held that it found no such provision within the treaty (A and B v Government of the Canton of Zurich, 2000).
It is essential to understand that these issues differ from the fundamental question of whether international law can be applied as part of the law of the land? In order to answer this question, the paper will examine the judgement by the Supreme Court of the Dominican Republic. The Supreme Court stated that Article 3 of the Dominican Republic's Constitution made international law binding on the domestic legal order. The court rejected the Superior Land Court's interpretation that these treaties were "foreign legislature" and not part of the domestic legal order. The Supreme Court laid down that all treaties ratified by the Dominican Republic formed a part of Dominican Law and, therefore, can be termed as self-executing (Gallardo Montilla v Gallardo Concepción and ors, 1997). The Federal Supreme Court of Switzerland has examined whether the Libson Treaty was self-executing and directly applicable to Swiss Universities. The court held, “According to relevant case law, a treaty norm is directly applicable if its content is sufficiently precise and clear to form the basis of a decision in a particular case. The norm thus has to be justiciable, i.e. define the rights and obligations of an individual and be directed at the competent authorities” (X v University of Lucerne, 2014). This implies that whether the treaty is directly applicable or not, depends upon on whether the norm is justiciable. The Lisbon Treaty is based on the principle of qualifications acquired aboard. This is conveyed through Article IV (1) of the treaty. The purpose of this was to create an obligation for states to show that their decision-making process is fair, transparent and non-discriminatory. The responsibility for proving that the applicant has not met the required criteria is on the “body undertaking the assessment.” The treaty guarantees procedural safeguards, which are generally accepted by countries and hence, the court held this treaty to be self-executing. This goes on to showcase the different interpretations undertaken by the courts of various countries.
It is essential to observe whether the norms set out by treaties are actually being complied with. The case laws from various jurisdictions have emphasized that national courts are the final authority on the issue of whether a treaty is self-executing. There is also an inherent duty cast on countries for the observance and due performance of treaties. Such is cast by the Pacta Sunt Servanda rule as enshrined within Article 26 of the Vienna Convention on Law of Treaties (VCLT). Article 27 goes on to reinforce it by stating that international law obligations cannot be ignored by using domestic law as a justification. Many countries' courts have used this as a source of interpretation, such as the Latvian Constitutional Court. In the case of a national norm conflicting with an international norm, the court held that the national norm was null and void. To reach its conclusion, the court strongly relied on the necessary performance of treaties in good faith as envisaged in Article 26 of the VCLT (Linija v Latvia, 2004).
From the above, it is clear that treaties have particular requirements before they can be considered self-executing. However, keeping all of these aside, the most important still remains the national courts' interpretation. The national courts decide whether the treaty can be called self-executing or not. Although their Constitution's might contain a provision regarding treaty law being the supreme law of the land, courts from different countries interpret these provisions in different manners. This can be seen as to how the American and Dominican Constitutions' both contain these provisions but follow completely different interpretations of the same. The term "self-executing" may not be congruous for these treaties since, in practice, they still need approval from the national courts. Ideally, the way forward should be that countries acknowledge the self-executing nature of treaties and treat them in a fashion wherein Article 26 and 27 of the VCLT are respected. Again, this is the "ideal" situation and is not likely to find its way into state practice of certain jurisdictions anytime soon. Still, hope can be gained via looking into the interpretations of national courts that respect these norms and hopefully pave the way for other courts to acknowledge this.
Buergenthal, T. (1992). Self-Executing and Non-Self-Executing Treaties in National and International Law (Vol. 303). 235 COLLECTED COURSES OF THE HAGUE ACADEMY OFINTERNATIONAL LAW.
Wildhaber, L. (1971). Treaty-Making Power and Constitution: An International and Comparative Study.
Laws, J. (2000). Monism and Dualism. La Revue administrative, 88.
Bug river claims, Czesław S v State Treasury and Minister of the State Treasury, I CK 323/02 (Cassation Judgement November 21, 2003).
Sosa v Alvarez-Machain, 542 US 692 (Supreme Court of the United States 2004).
Gallardo Montilla v Gallardo Concepción and ors, BJ 1039.164 (Supreme Court of Justice June 18, 1997).
A and B v Government of the Canton of Zurich, 2P.273/1999 (Federal Supreme Court September 22, 2000).
X v University of Lucerne, 2C_457/2013 (Federal Supreme Court March 13, 2014).
Linija v Latvia, 2004-01-06 (Constitutional Court of the Republic of Latvia July 7, 2004).
Court, U. S. (2004). Official Reports of the Supreme Court. Supreme Court.
About the author: Ahan Gadkari is a third-year law student in O.P. Jindal Global University. He has a keen interest in arbitration and international law.
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