Supplementary reading the rank of international rules within domestic legal orders

A survey of national legislation and case law shows that some States tend to put the international rules incorporated into the national legal system (whether automatically or through ad hoc legislative enactment) on the same footing as national legislation of domestic origin. As a consequence, the general principles governing relationships between rules having the same rank apply: a subsequent law repeals or modifies or at any rate supersedes a previous law. a special law prevails over a general law. a subsequent general law does not derogate from a prior special law. It follows that the national legislature may at any time pass a law amending or repealing a rule of international origin. True, in this case the State, if it applies the national law in lieu of the international rule, incurs international responsibility for a breach of international law. The fact remains, however, that the international rule is set aside by a simple act of parliament.

In contrast, other States tend to accord international rules a status and rank higher than that of national legislation. Such an approach is normally linked to the nature of their national constitution. Where the constitution is 'flexible' (that is, it can be amended by an simple act of parliament), or in any case the principle of legislative supremacy obtains, the only way of giving international rules overriding importance would be to entrench them, so that it is not possible for legislation passed by simple majority to modify them. Such a course of action, however, does not seem to have occurred so far in those States which have a 'flexible' constitution.

EXIGENCIES MOTIVATING STATES IN THEIR CHOICE OF THE INCORPORATION SYSTEM

States tend to regulate national incorporation of international rules on the basis of two different requirements. First, they may have to choose between a statist (or nationalist) and an internationalist approach. Second, they may have to take into account the question of the relationship between the executive and legislative branch of government, and shape the mechanism for implementing international law accordingly.

States choosing a statist or nationalist approach incline (i) to adopt legislative ad hoc incorporation and (ii) to put international rules on the same footing as national legislation of domestic origin. In contrast, States taking an international outlook tend (i) to opt for the automatic incorporation (whether standing or ad hoc) of international rules and (ii) to accord international rules a status and rank higher than that of national legislation.

States often take into account a second requirement, which concerns the general question of reserving to the legislative branch a competence that belongs to it alone and not to the executive branch. In those States where the government (chiefly the foreign ministry) makes international treaties without any parliamentary participation, a special problem may arise in two sets of circumstances: (i) when­ever the treaty covers areas that come within the purview of the legislature. (ii) whenever parliaments do not play any role, or play a limited role, in the decision to be bound by a treaty. In the first case, it is necessary to prevent the government from bypassing parliament by making a treaty and having it incorporated into national legislation without going through parliament. Hence, in these countries the intervention of parliament is always required for the treaty to be transformed into national legislation. Consequently, these countries do not opt for the automatic standing incorporation of treaties, but rather for the ad hoc incorporation (whether legislative or automatic). In other words, parliament may be required to enact a special law either setting out in detail the various rules contained in the treaty or simply enjoining all the relevant State agencies and the individuals concerned to abide by the treaty.

In the second case, where parliaments are excluded from the decision on whether or not to be bound by a treaty, to enable parliaments to exercise some control over foreign policymaking it may be required that they formally give their consent to the incorporation of the treaty, for the treaty to take effect at the municipal level.

to derogate from – частично отменять

in lien of - вместо

to accord a status – предоставлять статус

to entrench rules – закрепить нормы

on the same footing – на равных основаниях

to opt for sth – делать выбор в пользу ч-л