International rules on implementing international law in domestic legal systems

· Most int’l rules to become operative need to be applied by state officials or individuals within domestic legal systems. National implementation is crucial, but there is huge diversity in one different legal systems actually implement.

· Int’l law says that states cannot invoke the legal procedures of the municipal system as a justification for not complying with international rules.

Ш PCIJ, Polish Nationals in Danzig, Free Zones

Ш 1969 Vienna Convention on Law of Treaties, Art. 27 – establishes this rule re treaties

· In addition, some say that there exists a general duty for states to bring national law into conformity with obligations under int’l law. If such a duty existed, each time a state breached an int’l obligation, it would breach both the obligation itself and the general duty to conform state law with int’l law

Ш PCIJ – Exchange of Greek and Turkish Populations, 1925

· However, state practice shows that there is no general duty to conform national law to int’l law.

· If a state breaches an int’l obligation, other states can demand cessation or reparation for wrongdoing, but they are not entitled to ask why the state breached (e.g. what the problems are in national law).

· Int’l law concerns itself with results, not with process or explanations а individualistic structure of int’l community

Current regulation of int’l community shows some developments from this traditional view of int’l law:

· A number of treaties explicitly impose upon contracting states the duty to enact legislation to implement some/all of provisions of the treaty.

Ш 1949 Geneva Conventions on the victims of war, treaties on human rights, Statutes of ICTY, ICTR, and ICC

· Some general rules that have acquired the rank and status of peremptory norms (jus cogens) require that states adopt implementing legislation

Ш ICTY, Furundzija – one consequence of peremptory nature of prohibition of torture is that states must enact legislation prohibiting this practice at national level

· Why? B/c states regard some treaties and general rules as so important that all states must comply and enact in national law. Common goal is to prevent even potential breaches of these int’l rules.

· In these treaty and jus cogens obligations, a state can be called to account for having breached the specific obligation AND for having breached the general duty to apply int’l law in domestic law.

· Apart from these specific cases (some treaties and jus cogens), there is no int’l regulation of implementation – leaves states complete freedom with regard to how they fulfil nationally their int’l obligations.

· As a result, huge lack of uniformity among states – States consider it a right of sovereignty to do as they please in terms of implementation.