scholarly journals Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

2021 ◽  
Author(s):  
◽  
Dara Lenetha Ayanna Modeste
Keyword(s):  
Best Practices ◽  
International Treaties ◽  
International Treaty ◽  
Domestic Courts ◽  
Different Types ◽  
Treaty Implementation ◽  
Structured Approach ◽  
Domestic Law ◽  
Implementation Technique

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

scholarly journals Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

2021 ◽  
Author(s):  
◽  
Dara Lenetha Ayanna Modeste
Keyword(s):  
Best Practices ◽  
International Treaties ◽  
International Treaty ◽  
Domestic Courts ◽  
Different Types ◽  
Treaty Implementation ◽  
Structured Approach ◽  
Domestic Law ◽  
Implementation Technique

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

Using Treaties in Canadian Courts

2001 ◽  
Vol 38 ◽  
pp. 3-87 ◽  
Author(s):  
Gibran van Ert
Keyword(s):  
Human Rights ◽  
International Law ◽  
Common Law ◽  
International Treaties ◽  
Public International Law ◽  
Canadian Law ◽  
Domestic Courts ◽  
Reception System ◽  
Comprehensive Manner ◽  
Domestic Law

SummaryIncreasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of theCanadian Charter of Rights and Freedomsand other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule inLabour Conventions, and the landmark decision inBakerv.Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

scholarly journals FEDERAL STATE CLAUSE, TERRITORIAL UNITS CLAUSE AND FEDERAL RESERVATION — THE WAYS TO LIMIT INTERNATIONAL TREATY OBLIGATIONS

2016 ◽  
Vol 2 (4) ◽  
pp. 0-0
Author(s):  
Борис Осминин ◽  
Boris Osminin
Keyword(s):  
International Law ◽  
Federal Government ◽  
Federal State ◽  
International Treaties ◽  
International Treaty ◽  
Federal States ◽  
Domestic Law

Federal states may encounter difficulties in applying international treaties on matters constitutionally committed to their constituent units. In such cases a federal state may not be able to join the treaty without some accommodation either by its constituent units or other parties to the treaty. There are certain methods by which these problems can be reduced: federal state clauses, territorial units clauses, and federalism reservations. Some treaties may include a federal state clause to the effect that limits the scope of treaty’s obligations to those that federal state’s government has constitutional authority to assume. Another solution is to include a territorial units clause where the treaty may apply to some of a state’s constituent units but not others. Several federal states have made reservations to limit their obligations to those areas of legislative jurisdiction that the federal government has assumed. On occasion, other states have objected to such reservations. Alternatively, a federal state may issue a federal declaration to explain how federalism affects its implementation of the treaty. Unitary states tend to resist the federal state clause and the territorial units clause because they create an imbalance between rights and obligations of the contracting federal and unitary states. Although such clauses are not popular with unitary states, they do make it that much easier for federations to become parties. Such clauses are a compromise between the interest of unitary and federal states. Domestic law provides no excuse for a failure to fully implement international treaty obligations. In international law, if the constituent units fail to comply, it is the federal government that is liable for the failure to properly implement the treaty.

scholarly journals A Recepção dos Tratados de Direitos Humanos pelos Tribunais Nacionais: Sentenças Paradigmáticas de Colômbia, Argentina e Brasil / The Reception of Human Rights Treaties by Domestic Courts: Paradigmatic Judicial Decisions from Colombia, Argentina and Brazil

2016 ◽  
Author(s):  
Antonio Gomes Moreira Maués ◽  
Breno Baía Magalhães
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Comparative Method ◽  
International Treaties ◽  
Internal Standards ◽  
Legislative Action ◽  
Human Rights Treaties ◽  
Domestic Courts ◽  
International Obligations ◽  
Domestic Law

Resumo: O cumprimento efetivo de tratados internacionais de direitos humanos depende de fatores que não se limitam à sua incorporação ao direito interno. Para que haja uma recepção completa do tratado, os órgãos judiciais devem ser dotados de independência (exercício de suas funções de fiscalização dos demais poderes), os tratados devem possuir efeito direto (qualquer pessoa poderá utilizá-los em tribunais, independente de ação legislativa posterior) e os tribunais devem realizar uma interpretação conforme de suas disposições (compatibilização das normas internas com as internacionais, a fim de garantir o cumprimento de obrigações internacionais). Por meio do método comparado utilizado neste artigo, pode-se concluir que Argentina e Colômbia apresentam um grau maior de recepção da Convenção Americana de Direitos Humanos, não apenas porque a elevaram à categoria de norma constitucional, mas, principalmente, porque atribuem a ela efeito direto e aplicam a interpretação conforme. Apesar de atribuir efeito direto à Convenção Americana, o Supremo Tribunal Federal ainda não desenvolveu jurisprudência acerca da interpretação conforme, criando obstáculos à recepção e cumprimento efetivo do tratado.Palavras-chave: Tratados internacionais de direitos humanos; Independência judicial; Efeito direto; Interpretação conforme. Abstract: The effective implementation of international human rights treaties depends on factors that are not limited to its incorporation into domestic law. In order to have a complete reception of the treaty, courts must be provided with independency (exercise of its functions of government monitoring), treaties must have direct effect (anyone can use them in court, regardless of subsequent legislative action) and courts must perform a consistent interpretation of its provisions (internal standards in accordance with international ones, to ensure compliance with international obligations). By the comparative method used in this article, we can conclude that Argentina and Colombia show a greater reception of the American Convention on Human Rights, not only because they elevated it to the rank of constitutional law, but mainly because they give it direct effect and apply consistent interpretation. Although giving direct effect to the American Convention, the Brazilian Supreme Court has not yet developed a jurisprudence on consistent interpretation, creating obstacles to the reception and effective treaty implementation.Keywords: International Treaties on Human Rights; Judicial Independence; Direct Effect; Consistent Interpretation.

Entry into Force of Treaties as a Result of Accession

2015 ◽  
Vol 3 (7) ◽  
pp. 0-0
Author(s):  
Саяна Бальхаева ◽  
Sayana Balkhaeva
Keyword(s):  
International Law ◽  
International Cooperation ◽  
Point Of View ◽  
International Treaties ◽  
International Treaty ◽  
Governmental Organizations ◽  
Current State ◽  
Non Governmental Organizations ◽  
The Subject ◽  
Domestic Law

The author analyzes the entry into force of international treaties as a result of accession from the point of view of both the international and domestic law. Multilateral international treaties are the instrument of international cooperation. In this regard the accession is the most interesting type of the entry into force of international treaties. The accession means that an agreement should be bound by an international treaty which the subject of the international law did not sign or participate in its preparation. The author examines the use of the international treaties’ restrictive provisions concerning their accession. The author emphasized that such restrictions are used as a rule in a regional context. The author points out that the provisions on accession may extend to non-governmental organizations. The author points out that despite the apparent trend of the development of multilateral treaties in the direction of their accessibility to the largest possible number of states, the current state of international law does not give grounds to assert that there is an automatic right of states to accede to the treaties, the elaboration of which these states did not participate. The article analyses the practice of different states on the accession to the international treaties.

The European Charter of Local Self-Government

2015 ◽  
Author(s):  
Chris Himsworth
Keyword(s):  
Critical Study ◽  
The European Union ◽  
Future Prospects ◽  
Council Of Europe ◽  
International Treaty ◽  
Additional Protocol ◽  
Domestic Courts ◽  
The Status ◽  
History Of ◽  
Regional Authorities

The first critical study of the 1985 international treaty that guarantees the status of local self-government (local autonomy). Chris Himsworth analyses the text of the 1985 European Charter of Local Self-Government and its Additional Protocol; traces the Charter’s historical emergence; and explains how it has been applied and interpreted, especially in a process of monitoring/treaty enforcement by the Congress of Local and Regional Authorities but also in domestic courts, throughout Europe. Locating the Charter’s own history within the broader recent history of the Council of Europe and the European Union, the book closes with an assessment of the Charter’s future prospects.

BERLAKU DAN KEABSAHAN PERJANJIAN INTERNASIONAL DALAM PANDANGAN HUKUM INTERNASIONAL

2019 ◽  
Vol 1 (1) ◽  
pp. 95-103
Author(s):  
Komang Sukaniasa
Keyword(s):  
International Law ◽  
International Agreements ◽  
The State ◽  
International Agreement ◽  
International Treaties ◽  
International Treaty ◽  
Binding Force ◽  
International Rights ◽  
Legal Consequences ◽  
Made In

International agreements are agreements between international subjects that give rise to binding obligations in international rights, which can be bilateral or multilateral. Based on these opinions, an understanding can be taken that international treaties are agreements or agreements entered into by two or more countries as subjects of international law that aim to cause certain legal consequences. International agreements, whether ratified or through approval or acceptance or accession, or other methods that are permitted, have the same binding force as ratified international treaties established in the Ratification Law of International Treaties. Once again, it is equally valid and binding on the state. Therefore, the authors consider that the position of international treaties are not made in the form of the Ratification Act of the International Agreement but are binding and apply to Indonesia. Then Damos Dumoli Agusman argues that ratification originates from the conception of international treaty law which is interpreted as an act of confirmation from a country of the legal acts of its envoys or representatives who have signed an agreement as a sign of agreement to be bound by the agreement.

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

Is the Infringement of a Treaty a Fault?

2020 ◽  
Vol 11 (1) ◽  
pp. 37-56
Author(s):  
Françoise Auvray
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Legal Order ◽  
International Treaties ◽  
Public Authorities ◽  
International Treaty ◽  
National Legal System ◽  
Tort System ◽  
State Liability

AbstractThis contribution deals with the wrongful behaviour of public authorities, in this case in particular the Belgian State, and delves into a challenge that the multi-levelled legal order poses for the national tort system. It inquires how the violation of an international treaty relates to liability in the national legal system. More specifically, the author examines if it is necessary, when dealing with state liability, to limit the concept of fault to the infringements of international treaties with direct effect, excluding the violation of those without such effect.

Retroactivity in international treaty law

2021 ◽  
Author(s):  
Iryna Osmirko ◽  
Ivanna Maryniv
Keyword(s):  
General Rule ◽  
International Agreements ◽  
Vienna Convention ◽  
Main Body ◽  
International Agreement ◽  
International Treaties ◽  
International Treaty ◽  
Retroactive Effect ◽  
The Status ◽  
Contractual Obligations

Problem setting. Due to the fact that the constitutional norms determine the status of an international treaty, the binding nature of which has been approved by the parliament as part of national legislation, it is important to study the temporal effect of international treaties, namely their retroactivity. In general, the Vienna Convention contains a provision according to which an international treaty has no retroactive effect in respect of the States which are parties to it, except where the intention to give retroactive effect to the treaty follows from the treaty itself or the agreements of its parties. These exceptions to the general rule indicate the non-absoluteness of the latter, so it is appropriate to study the factors that determine the existence of retroactive agreements, as well as controversial and controversial issues that arise in this regard. Analysis of recent researches and publications. Scholars such as S.N. Ivanov, RA Kalamkaryan, M.A. Kapustina, II Lukashuk, OV Pushnyak and others. However, this area needs further study and analysis, given the existence of exceptions to the general provision on the lack of retroactive effect of international agreements. Target of research. Тo consider the conditions under which an international treaty has retroactive effect, to investigate the factors influencing the decision to grant retroactive effect and the issues arising in connection with the retroactivity of international treaties. Article’s main body. This study examines the non-absoluteness of the provision on the absence of retroactive effect of international agreements. Among the reasons that encourage states to anticipate retroactive effect – the interpretive or additional nature of the international agreement or the need to resolve the situation that arose before its conclusion. It should be emphasized that some agreements have retroactive effect by virtue of their object, which provides this retroactive effect, as agreed by the parties, although not explicitly stated in the contract. It is also not uncommon for certain rights and obligations to arise not because of an international treaty that has not yet entered into force, but because of customary norms that are enshrined in it. Conclusions and prospects for the development. The principle of no retroactive effect of an international agreement is not absolute. In each case, the reasons for the application of retroactivity must be decided by a judicial authority in the process of interpreting the contractual obligations. An important role in the possibility of retroactive application of an international treaty is played by its object or the co-existing customary norms of international law and the principles recognized by civilized nations as binding.

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