SOMALI NATIONAL UNIVERSITY THE CONSTITUTION AND INTERNATIONAL LAW
Overview • Introduction • International Treaties • Treaty, convention and charter • The Power to Deliberate and to Ratify International Treaties • The Executive • Involvement of the Legislature • The Status of International Treaties in Domestic Law
The Constitution and International Law Introduction • Today it is acknowledged that several central elements of constitutions are influenced by international lawsuch as international human rights standards are binding upon those states which have ratified the pertinent international agreements. • Principles which have to be taken into account in national constitutions are defined by reference to international norms concerning democracy, human rights, social justice, and gender equality. • Despite the international doctrine of state sovereignty it is well established that international law influences national constitutions. • This holds also true for constitutions of Muslim states. • Most constitutions contain provisions concerning international law. • Most commonly, these provisions cover the power to negotiate and conclude international treaties, the relationship between international law and domestic law, and references to international human rights.
Relationship between International Law and Domestic Law The distinction between international law and municipal Law: • Domestic lawgoverns the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus • International law focuses primarily upon the relations between states. • The relationship between international law and domestic law has been the subject of much doctrinal dispute between what is known as the "dualist" school of thought, on the one hand, and the "monist" school of thought on the other hand.
Relationship between International Law and Domestic Law • Dualism: internationallaw and domesticlawareseparatelegalorders, cannotoverruleeachother. • Being separate systems, international law does not as such form part of the domestic law of a state. • When in particular instances rules of international law may be applicable within a state, they do so by virtue of their adoption by the Domestic law of the state, and apply as part of that domestic law and not as international law. • International legalrulesbecomedomesticnormsthroughtransformation • Monism: internationallaw and domesticlawcomprise of onesinglelegalsystem • Incorporation: internationallaw is automatically part of thelaw of theland
The Relationship between Constitution and International Law • Dualistssee International Law and Domestic Law as distinct and separate – arising from different sources, governing different areas and relationships, and different in substance. • According to Dualists, international law is inferior to and weaker than, domestic law. • If international law ever becomes part of domestic law, that can only be because domestic law, has chosen to incorporate it. • Monistson the other hand contend that there is only one system of law, of which international and domestic laws are no more than two aspects. • They justify this by claiming that both of them govern sets of individuals (States being seen for this as collection of individuals) both are binding, and both are manifestations of a single concept of law. • Hence international law is superior and stronger, as it represents the system’s highest rules – jurisdiction on a domestic level being only delegated to states, which cannot avoid being bound to apply international law at the domestic level.
The Relationship between Constitution and International Law • The general rule is that a state which has broken a rule of international law cannot justify itself by referring to its domestic law; • Otherwise international law would be evaded by passing appropriate domestic legislation. • Article 27 of the Vienna Convention on the Law of Treaties, 1969, is very clear about this. • Under the principle of pactasuntservanda, a state is under the duty to honor its international obligations even if it means changing its domestic law. • This view has been applied in various international cases. • The British in the Alabama Claims Arbitration, sought to rely on lack of domestic legislation to avoid liability. • Their defence was defeated on the ground that the British government could not justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action it possessed.
TheRelationship between Constitution and International Law • Today it is acknowledged that several central elements of constitutions are influenced by international law. • For example, international human rights standards are binding upon those states which have ratified the pertinent international agreements. • Principles which have to be taken into account in national constitutions are defined by reference to international norms concerning democracy, human rights, social justice, and gender equality. • Despite the international doctrine of state sovereignty it is well established that international law influences national constitutions.
The Relationship between Constitution and International Law • It is a generally accepted principle of international law that in relations between states who are contracting parties to a treaty, the provisions of domestic law cannot prevail over those of the treaty even if that domestic law is the state's own constitution. • Likewise, a state once it has ratified a treaty, cannot successfully amend its domestic legislation with a view to evading obligations incumbent upon it under international law. • In such a situation, international law prevails over domestic law. • As stated in the United Nations Headquarters opinion, on the international legal plane, national law cannot derogate from international law.
International treaties • Nearly all states have adhered to international treaties, governing a variety of areas such as: • Trade, see e.g. the Agreement Establishing the World Trade Organization (WTO Agreement) and its Annexes; • Environment, see e.g. the Kyoto-Protocol; • Armed conflict, see e.g. the Hague Conventions of 1907 or the four Geneva Conventions of 1949; or • Foreign relations, see e.g. the Vienna Convention on Diplomatic Relations.
International treaties • Some States provide by their Constitutions that certain provisions of international law shall be self-executing. For example, the Constitution of the U.S.A., provides that international treaties are part of the law of the land. • Other countries have gone even further by not only making international law self executing, but assigning to it a rank in the domestic hierarchy superior to all prior and subsequent legislation. Examples of this are France and Germany. • But there are other States that do not accept any international law as self-executing, or so accept it in part. For example United Kingdom (U.K.).
International treaties Treaty, convention and charter • Treaty "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; Bilateral treaties, Multilateral treaties – (Vienna Convention on the Law of Treaty 1969) - if ratified binding on the parties
International treaties • CharterCharters are constituent treaties of international organizations ( an institution or committee); they're the guiding rules and regulations for the functioning of that institute and also might lay down certain limitations for outsiders or participating countries (Definition of key terms used in the UN Treaty Collection) E.g. UN Charter, ICJ Charter
International treaties Convention 1. (broadermeaning ) allinternationalagreements 2. ( specificmeaning) formal multilateral treaties with a broad number of parties; open for participation by the international community as a whole, or by a large number of states. Usually the instruments negotiated under the auspices of an international organization (e.g. Convention on Biological Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969) (Definition of key terms used in the UN Treaty Collection)
The Power to Deliberate and to Ratify International Treaties The Executive • Most constitutions contain detailed provisions on the exercise of treaty-making powers and their application. • The ratification of international treaties usually follows the same rules as the passing of laws in most constitutions. • However, different bodies or branches of government can be vested with the power of treaty-making. • In most countries, the Head of State is authorized to ratify international treaties with the consequence that the state in question is bound by that treaty internationally.
The Power to Deliberate and to Ratify International Treaties (cont.) The Executive • In most countries, the Head of State is authorized to ratify international treaties with the consequence that the state in question is bound by that treaty internationally. • This is the case, for example, in Namibia where the President has the power to “negotiate and sign international agreements” (Art. 32 of the Namibian Constitution). • In Turkey, the President is authorized “to ratify and promulgate international treaties” (Art. 104 of the Turkish Constitution).
The Power to Deliberate and to Ratify International Treaties (cont.) • In some countries, however, the power to negotiate and ratify international treaties is vested in the government: for example, under the Ethiopian Constitution, the Federal Government has the power to “negotiate and ratify international agreements” (Art. 51 of the Ethiopian Constitution). • In the United Arab Emirates the Supreme Council of the Union has the power to ratify international treaties and agreements by decree (Art. 47 of the Constitution of the United Arab Emirates).
The Power to Deliberate and to Ratify International Treaties (cont.) • The Head of State quite often concludes only the most important international treaties whereas other treaties can be concluded by the government, usually by one of the ministers acting on behalf of the state, most often the minister for foreign affairs. • For example, the Constitution of Mozambique distinguishes between international treaties, which have to be concluded by the President (Art. 123 of the Constitution of Mozambique) and international agreements, which can be concluded by the Council of Ministers (Art. 153 of the Constitution of Mozambique).
The Power to Deliberate and to Ratify International Treaties (cont.) Involvement of the Legislature • It is the prerogative/rights of the executive to negotiate and ratify international treaties, many constitutions require the involvement of the legislature to give them legal force within the respective country. • Roughly two types of such involvement can be distinguished: • First, negotiation and conclusion of an international treaty may be reserved to the executive and the legislature is responsible only for implementation. • The international treaty is normally concluded without the participation of parliament. • This conclusion makes the international treaty binding under international law but its provisions do not become part of domestic law until they are incorporated by parliament through specific legislation. • Parliament is free, at least according to constitutional law, to pass such legislation or to reject it.
The Power to Deliberate and to Ratify International Treaties (cont.) Involvement of the Legislature • Parliament is free, at least according to constitutional law, to pass such legislation or to reject it. • Consequently, it is this legislative act and not the international treaty itself that becomes part of the applicable domestic law. • Under these rules, parliament may also amend such legislation at any time. • If it rejects the international treaty from the outset or if it overrides the international treaty at a later time, a conflict arises between domestic and international law. • It is a matter of the executive then to resolve this conflict in some way or other, e.g. by renewed negotiations with the international treaty partner.
The Power to Deliberate and to Ratify International Treaties (cont.) Involvement of the Legislature • According to a second type of constitutional provisions, previous approval by the legislature is required either in the form of a formal law or in some other way, for example, by a parliamentary resolution. • In these cases, the preceding consent to the international treaty by the national legislature makes an additional legislative implementation after the treaty’s conclusion redundant. • Being approved by the legislature beforehand, the international treaty becomes domestically applicable as soon as it becomes effective under international law.
The Power to Deliberate and to Ratify International Treaties (cont.) • For example, in Sudan the President has the power to ratify treaties and international agreements with the approval of the National Legislature (Art. 58 of the Sudanese Constitution). • In countries with a bicameral legislature only one chamber may be required to approve the treaty. • For example, in Namibia only the first chamber, the National Assembly, has “to agree to the ratification of or accession to international agreements” signed by the President (Art. 63 of the Namibian Constitution). • In the United States of America only the second chamber is involved: International treaties concluded by the President require the approval of a two-thirds majority in the Senate (Art. II Sect. 2 of the US American Constitution).
The Status of International Treaties in Domestic Law • Most countries follow a dualist approach as regards the status of international norms in domestic law. • This means that international and national law are perceived to be two different sets of norms, and international law may only be applied at the domestic level once it has been incorporated into national law. • Other countries follow a so-called monistic approach. This means that international treaties, once concluded, are directly applicable within the domestic legal system. • Usually the monistic approach comes together with a constitutional provision that requires that the legislature has to approve the international treaty beforehand (see above).
The Status of International Treaties in Domestic Law (cont.) • Some countries regard international treaties which have been duly ratified as superior to domestic law, some even including the respective national constitution. • However, this is only the case in very few countries (for example in the Netherlands and in Belgium). • Other states consider international treaties only as superior to national legislation, but not to their constitution. • These countries give precedence to international treaties over both previous and subsequent legislation, but usually only under certain conditions: the international treaty has to be approved by the national legislature and it has to have entered into force(for example, in France, Senegal or Cameroon).
The treaty-making process • ADOPTION: is the formal act by which the form and content of a proposed treaty text are established. It takes place through the expression of the consent of the states participating in the treaty-making process. • ACCEPTANCE / APPROVA has the same legal effect as ratification and consequently express the consent of a state to be bound by a treaty. In the practice of certain states it has been used instead of ratification when, at a national level, constitutional law does not require the treaty to be ratified by the head of state. • ACCESSION is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. It usually occurs after the treaty has entered into force.
The treaty-making process (cont.) • ENTRY INTO FORCE: is a time when a treaty becomes legally binding on the parties to the treaty. • RATIFICATION: the international act whereby a state indicates its consent to be bound to a treaty. This institution grants states the necessary time-frame to seek the required approval for the treaty on the domestic level (done by national legislatures). • RESERVATION is a declaration made by a state by which it wants to exclude or alter the legal effect of certain provisions of the treaty in their application to that state. It enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply • SIGNATURE : Signing of a treaty by a representative of a state by which the signatory state expresses the willingness to continue the treaty-making process.