Treaty law

(a) Modalities of implementation

Customary international law is normally incorporated by means of the standing automatic mechanism, with regard to treaties States tend to resort to all three aforementioned mechanisms of incorporation: standing automatic, statutory ad hoc incorporation. automatic ad hoc incorporation.

(b) Non-self-executing treaties

A particular problem may arise with regard to treaties containing non-self-executing provisions, that is, provisions that cannot be directly applied within the national legal system because they need to be supplemented by additional national legislation for them to be implemented. Whenever treaties contain such provisions, even in those national legal systems where the mere publication of international treaties is sufficient for them to produce effects domestically, the passing of implementing legislation proves necessary.

It should be emphasized that national courts often tend to broaden the notion of non-self-executing treaty provisions, with a view to wittingly or unwittingly shielding national legal systems from legal change. Thus, for instance, not until 1991 did the French Council of State (Conseil d'Etat), after many contrary decisions, come to the right conclusion (Demizpence, at 1013), that Article 8 of the European Convention on Human Rights is self-executing (under this provision 'Everyone has the right to respect for his private and family life, his home and his correspondence'. see also paragraph 2). Similarly, it was only in 1989 that the Italian Court of Cassation held in Polo Castro that Article 5.1(f) of the same Convention (on the condition of a person who has been arrested or detained with a view to preventing his unauthorized entry into the country, or pending his deportation or extradition) is self-executing (at 1042-4).

(с) Status of international treaties and possible conflict with later legislation

The legal standing of treaties within domestic legal orders and the possibility of conflict between international treaties and subsequent national legislation vary greatly, depending upon the rank and status of the national rule providing for the incorporation of international treaties within the legal system. In countries where a constitutional provision (of a 'rigid' constitution) provides for the incorporation of treaties, duly ratified treaties override national legislation.

ipso facto – в связи с этим

a legal standing – правовой статус

to override – иметь преимущественное юридическое действие

I. Analyse the ways of implementing rules within the frame of international public law using the given phrases. Complete the missing information on the mind map.

• to override any inconsistent ‘ordinary’ national legislation

• to be entrusted with judicial review of legislative acts

• tend to broaden the notion of non-self-executing treaty provisions

• to incorporate treaties

• to be superseded by a law

• to assume the rank of ordinary legislation

• to deviate from treaties

• to grant much leeway to courts