International Law in Domestic Systems

Shelton, Dinah

doi:10.1007/978-94-007-2354-2_21

Dinah Shelton³

2385 Accesses
2 Citations

Abstract

Changes in the international legal system have had notable impact on constitutions adopted or amended since World War II. The growth and proliferation of global and regional institutions and the development of international human rights and international criminal law had marked influence on the development of domestic legal systems. Declarations, codes of conduct, and other normative instruments adopted by international organizations – also known as soft-law – have also informed domestic law. Countries that have experienced dictatorships or foreign occupations have shown greater receptivity to international law, incorporating or referring to specific international texts in their post-repression constitutions. In addition, the divide between monist and dualist systems is decreasing. In some monist states, the direct application of a treaty properly incorporated into the domestic system is not necessarily automatic. In general, the place of international law in the in domestic legal systems depends upon the source of the international law in question – treaty, customary international law, a general principle of law, or a decision of an international organization.

IV.A.2, Le droit international en droit interne.

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Notes

1.
Austria, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal and the United Kingdom.
2.
Bulgaria, Czech Republic, Hungary, Poland, the Russian Federation, Serbia, and Slovakia.
3.
Argentina, Uruguay and Venezuela.
4.
Canada and the United States.
5.
Australia, Japan, and New Zealand.
6.
See e.g. P.F. Gonidec, “The Relationship of international Law and National Law in Africa,” 10 African Journal of International and Comparative Law 244–247 (1998); T. Maluwa, “The Incorporation of International Law and its Interpretation in Municipal Legal Systems in Africa: An Explanatory Survey,” 23 South African Yearbook of International Law 45 (1998).
7.
France appears to be an exception. According to its national report, the government maintains its consistent opposition to the concept of jus cogens.
8.
See generally, E. Stein, “International Law in Internal Law: Toward Internalization of Central-Eastern European Constitutions?” 88 American Journal of International Law 427 (1994). Similarly, but with respect to the issue of post-totalitarian constitutions, see A. Cassese, “Modern Constitutions and International Law”, Recueil des Cours de l’Academie de la Haye 192-III (1985), 331–474, and especially at 351 et cf.
9.
See, e.g. M. Kumm, Towards a Constitutional Theory of the Relationship between National and International Law International Law Part I and II, National Courts and the Arguments from Democracy, 1–2, www.law.nyu.edu/clppt/program2003/readings/kumm1and2.pdf; L. Wildhaber, Treaty-Making Power and the Constitution (Basel, 1971), 152–153.
10.
See Doorwerking internationaal recht in de Nederlandse rechtsorde (Governmental note on the effect of international law in the Netherlands legal order), Parliamentary documents 2007–2008, 29861 No. 19, 3.
11.
C. Economides, “The Elaboration of Model Clauses on the Relationship between International and Domestic Law”, (The European Commission for Democracy Through Law, Council of Europe, 1994), 91–113, 101–2; L. Erades, Interactions between International and Municipal Law (The Hague: T.M.C. Asser Institute, 1993).
12.
The Constitution of the Netherlands, like that of many other countries, sets some conditions for the internal effect of a treaty, such as Parliamentary approval and official publication. Art. 91 of the Constitution provides:
1. 1.
  The Kingdom shall not be bound by treaties, nor shall such treaties be denounced without the prior approval of the States General. The cases in which approval is not required shall be specified by Act of Parliament.
2. 2.
  The manner in which approval shall be granted shall be laid down by Act of Parliament, which may provide for the possibility of tacit approval.
3. 3.
  Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Houses of the States General only if at least two-thirds of the votes cast are in favor.
13.
The Rome Treaty created a supra-national system, which differs from regular international law. Regarding EC and EU, after the Lisbon Treaty (the Treaty on the Functioning of the EU, TFEU) it has all become EU law.
14.
See: Constitutional Court, Frontini, Decision No. 183 of 18 December 1973. Article 11 was drafted to permit Italy to join the United Nations. It affirms that “Italy rejects war as an instrument of aggression against the freedoms of others peoples and as a means for settling international controversies; it agrees, on conditions of equality with other States, to those restraints on sovereignty which are necessary to a legal system grounded upon peace and justice between Nations; it promotes and encourages international organizations having such ends in view.”
15.
This is the case with Portugal and the Slovak Republic. Article 7(2) of the Slovak Constitution provides: The Slovak Republic may, by an international treaty, which was ratified and promulgated in the way laid down by a law, or on the basis of such treaty, transfer the exercise of a part of its powers to the European Communities and the European Union. Legally binding acts of the European Communities and of the European Union shall have precedence over laws of the Slovak Republic. The transposition of legally binding acts which require implementation shall be realized through a law or a regulation of the Government according to Article 120 Paragraph 2.
16.
In Canada, in addition to the federal constitution, various enactments of the British Imperial Parliament, Royal Proclamations and Letters Patent; and enactments of the Canadian Parliament as well as provincial legislation provide sources of constitutional law, to which common law constitutional principles must be added. With two notable exceptions Canada’s written constitution makes no reference to international agreements or treaties. The report explains that Canada’s written constitution is virtually silent with respect to international law and foreign relations because at confederation the conduct of foreign affairs continued to be carried out by the British government.
17.
The first reference, to implementation of Imperial Treaties, plays little role today.
18.
Part I of the Constitution Act 1982.
19.
It has had few amendments, the last being enacted in 1977.
20.
Section 51, Constitution of Australia (“in all matters – (i) arising under any treaty; … the High Court shall have original jurisdiction.”
21.
If New Zealand has a constitution, then according to this traditional approach, it can be regarded as a single sentence; ‘Parliament can do anything’. F. Ridley, “A Dangerous Case of the Emperor’s New Clothes”, 41 Parliamentary Affairs (1988), 340.
22.
See M.S.R. Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (Wellington: Victoria University Press, 2005). The Treaty was signed between Maori Iwi (tribes) and Hapu (sub-tribes) and the British Crown on 6th February 1840, a date now celebrated in New Zealand as Waitangi Day, a national holiday. The signing of the Treaty/te Tiriti is surrounded by controversy caused not least by the fact that the Teo Reo Maori version (signed by the Maori signatories) differs in significant parts from the English language version. In particular, the English version ceded “sovereignty” to the British Crown in return for the recognition of the Maori population as British subjects. The Te Reo Maori version made no such reference to sovereignty, instead using the term kawanatanga (a transliteration of governership).
23.
R. Cooke, “Introduction”, (1990) 14 NZLUR 1.
24.
See, e.g. The Laws of New Zealand: International Law, LexisNexis, Section 4–111.
25.
See, e.g. Joseph, “Parliament, the courts, and the collaborative enterprise.” King’s College Law Journal 15, no. 2 (Summer 2004), 321–345.
26.
See e.g., R v Pora (2001) 2 NZLR (CA) and Simpson v A-G (Baigent’s Case) (1994) 3 NZLR 667 (CA).
27.
The U.S. Constitution has been amended 17 times after ratification of the Bill of Rights. None of these amendments specifically relates to international or comparative law. Overwhelmingly, these amendments relate to purely domestic law matters; many concern extending the suffrage.
28.
Nearly all matters before the U.S. Supreme Court arrive there by writ of certiorari; only in rare instances is the Court required to consider a case.
29.
E.g., legal doctrines relating to standing, ripeness, abstention, political questions, and acts of state.
30.
I.e., Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.
31.
Subsection 2 of Chapter 5 ‘Legislation and Administration’, entitled ‘Miscellaneous Provisions’.
32.
Examples include the Czech Constitution Article 1, Section 2, which provides: “The Czech Republic respects the obligations arising to it from international law.” Similarly, Art. 7(1) of the Hungarian Constitution (1989 amendment) provides: “The legal system of the Republic of Hungary accepts the generally recognized principles of international law, and shall harmonize the country’s domestic law with the obligations assumed under international law.” Article 7 is silent about the possible solution of conflicts between international law and national law and about the problem of self-executing norms. In the case-law of the Constitutional Court, the notion of ‘general principles of international law,’ as it appears in the Constitution, seems to refer to customary international law and international jus cogens. See 53/1993 (X. 13.) AB határozat, (CC decision), (ABH, 1993), 323, 329.
33.
The 1976 Constitution of the Republic of Portugal in Article 8 is explicit that “ The rules and principles of general or ordinary international law are an integral part of Portuguese law.” (para. 1). Paragraph 2 adds that rules provided for in international conventions duly ratified or approved, following their official publication, apply in national law as long as they remain internationally binding with respect to the Portuguese State. Other paragraphs concern the rules and decisions of international organizations.
34.
Article 1, para. 2 of the Constitution of the Slovak Republic provides that the Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations. Other post-communist constitutions contain similar provisions. See, e.g. Serbian Constitution, Article 16: “The foreign policy of the Republic of Serbia shall be based on generally accepted principles and rules of international law.” See generally, E. Stein, “International Law in Internal Law: Toward Internalization of Central-Eastern European Constitutions?” 88 American Journal of International Law 427 (1994). Similarly, but with respect to the issue of post-totalitarian constitutions, see A. Cassese, “Modern Constitutions and International Law”, Recueil des Cours de l’Academie de la Haye 192-III (1985), 331–474, and especially beginning at p. 351.
35.
Under Article 62 (part 1–3) of the Constitution of the Russian Federation international treaties may regulate dual citizenship. Part 2 Article 63 of the Constitution of the Russian Federation specifies that extradition shall be carried out on the basis of federal law or the international treaty of the Russian Federation. Part 2 Article 67 provides that the Russian Federation shall possess sovereign rights and exercise jurisdiction on the continental shelf and in the exclusive economic zone of the Russian Federation according to the rules established by federal law and the norms of international law. Article 69 guarantees the rights of the indigenous minority peoples according to the universally-recognized principles and norms of international law and international treaties of the Russian Federation. Article 79 provides that the Russian Federation may participate in interstate associations and transfer to them part of its powers according to international treaties and agreements, if this does not involve the limitation of the rights and freedoms of man and citizen and does not contradict the principles of the constitutional system of the Russian Federation.
36.
If they are divided or the House of Councilors fails to take a decision within 30 days, the House of Representatives’ decision controls.
37.
Approval requires a two-thirds majority vote of the Senate. However, in practice, the judicial doctrine of self-executing treaties has brought the House of Representatives into the process in many instances where implementing legislation is deemed necessary.
38.
“Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation require the consent or participation, in the form of a federal statute, of the bodies competent in any specific case for such federal legislation.” Article 59 para. 21st sentence GG. The authorization of the German legislature under Art. 59(2) of the GG (Basic Law) is given in the form of a federal law (which later becomes the implementing legislation).
39.
According to the authors of the national report, Hungarian Act L of 2005 on Procedures relating to International Agreements refers to “treaty preparation” which has a broader meaning than negotiation of treaties. It includes adopting Hungarian policy, elaborating the concept and the draft of the treaty, communicating to the other party/parties the intention to conclude a treaty, transmitting the draft or the concept, as well as negotiating the text. The minister which has authority according to the subject of the treaty decides in agreement with the Foreign Minister about the preparation of the treaty taking into consideration the principles determined by the Parliament and the government. Government authorization is needed for adopting the final text of the treaty.
40.
The Parliament must approve treaties which affect, inter alia, the content or scope of fundamental rights and obligations, contains provisions contrary to an existing domestic act, or which regulates directly other matters falling within the competence of the Parliament. Act L of 2005 Art. 7.
41.
Attorney General Guidelines 64.000A – International Conventions: Ratification Process (1.1.1984).
42.
The Minister of Foreign Affairs and the Minister of Defense may jointly decide to deviate from this procedure on the grounds of urgency or secrecy. In that case, the Government alone will ratify the treaty. The Government may also decide that a certain treaty, because of its importance, should be first approved by the Knesset prior to its ratification by the Government, as was done in the case of the Camp David Accords and the Peace Agreement with Egypt.
43.
These are powers originally held by the monarch that have not been legislated for by Parliament. They have been inherited by the New Zealand executive.
44.
New Zealand Parliamentary Standing Orders 387–390 – as amended in 1998.
45.
The Slovak Republic’s Constitution, Art. 7(4), designates the categories of treaties for which approval of the national Council is required prior to ratification. These are: international treaties on human rights and fundamental freedoms, international political treaties, international treaties of a military character, international treaties from which a membership of the Slovak Republic in international organizations arises, international economic treaties of a general character, international treaties for whose exercise a law is necessary and international treaties which directly confer rights or impose duties on natural persons or legal persons. As in some other states, the Constitutional Court may be requested to decide on the conformity of a treaty with the constitution, prior to ratification, at the request of the President of the Republic or the Government. If it finds that the treaty is contrary to the constitution or constitutional law, it cannot be ratified.
46.
Article 39, Section 4.
47.
The Greek Constitution requires approval by a super-majority when government functions or powers provided in the Constitution are to be recognized and ceded by treaty to an international organization. In that case a three-fifths majority is required (Article 28 par.2). In other instances, “Greece shall freely proceed by law passed by an absolute majority of the total number of Members of Parliament to limit the exercise of national sovereignty, insofar as this is dictated by an important national interest, does not infringe upon the rights of man and the foundations of democratic government and is effected on the basis of the principles of equality and under the condition of reciprocity.”
48.
In Austria, the Federal President concludes international agreements upon suggestion of the government and countersignature of the Federal Chancellor or competent minister (Art. 65(1) and 67, Federal Constitution) after the Federal Parliament approves of those that fall into the four categories which require legislative approval according to Article 50 of Austria’s Federal Constitution: (1) political agreements that concern, for example, the existence of the State, its territorial integrity and independence; (2) agreements that contain provisions which modify or contradict existing law; (3) agreements that have no basis in existing law; and (4) agreements modifying the treaty foundations of the European Union. Treaties that have been approved by the National Council must also be approved by the other chamber, the Federal Council, if they regulate subject matters falling within the sphere of state competences or if they modify the treaty foundations of the European Union. For other treaties, the Constitution grants the Federal Council a veto, which may be overridden by the National Council. The third type of agreement, the executive agreement, is discussed later.
49.
Article 90 of the Constitution reads:
1. 1.
  “The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.
2. 2.
  A statute, granting consent for ratification of an international agreement referred to in para. 1, shall be passed by the Sejm by a two-thirds majority vote in the presence of at least half of the statutory number of Deputies, and by the Senate by a two-thirds majority vote in the presence of at least half of the statutory number of Senators.
3. 3.
  Granting of consent for ratification of such agreement may also be passed by a nationwide referendum in accordance with the provisions of Article 125.
4. 4.
  Any resolution in respect of the choice of procedure for granting consent to ratification shall be taken by the Sejm by an absolute majority vote taken in the presence of at least half of the statutory number of Deputies.”
50.
They are enumerated in Article 89 para. 1: “Ratification of an international agreement by the Republic of Poland, as well as renunciation thereof, shall require prior consent granted by statute – if such agreement concerns:
1. 1.
  peace, alliances, political or military treaties;
2. 2.
  freedoms, rights or obligations of citizens, as specified in the Constitution;
3. 3.
  the Republic of Poland’s membership in an international organization;
4. 4.
  considerable financial responsibilities imposed on the State;
5. 5.
  matters regulated by statute or those in respect of which the Constitution requires the form of a statute.”
See also the Bulgarian Constitution, Art. 85, par. 3 and Art.149, par.1, 4 in connection with Art 5, par. 4, and Article 85. (1) The Bulgarian National Assembly ratifies or denounces with a law international treaties that:
1. 1.
  Are of a political or military nature;
2. 2.
  Concern the participation of the Republic of Bulgaria in international organizations;
3. 3.
  Call for corrections to the borders of the Republic of Bulgaria;
4. 4.
  Contain financial commitments by the state;
5. 5.
  Stipulate the participation of the state in any arbitration or court settlement of international disputes;
6. 6.
  Concern basic human rights;
7. 7.
  Affect the action of a law or require new legislation for their implementation;
8. 8.
  Specifically require ratification.
51.
According to the Greek Constitution, Article 28 par. 1, “…international conventions as of the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.”
52.
E. Tanchev, International and European Legal Standards Concerning Principles of Democratic Elections, p. 8. A judicial interpretation of the relevant constitutional provisions holds that the Constitution has situated treaties second only to the Constitution itself, above national legislation.
53.
The Serbian Constitution, Article 16, provides ratified international treaties are an integral part of the legal system of the Republic of Serbia and directly applicable, but they must be in conformity with the Constitution.
54.
Article 18, entitled, Human and Minority Rights and Freedoms, Direct Application of Human Rights, provides:
- “Human and minority rights guaranteed by the Constitution shall be directly applicable.
- This Constitution guarantees and makes directly applicable those human and minority rights which are guaranteed by the generally accepted rules of international law, ratified international treaties and the law. Enjoyment of rights and freedoms may be further regulated by the law only if the Constitution explicitly provides so or if it is necessary due to the nature of the right, provided that the law in no way impairs the guaranteed right.
- Provisions on human and minority rights shall be interpreted so as to promote the values of a democratic society and in accordance with international human and minority standards as well as practice of international institutions monitoring their enforcement.”
Article 22 guarantees the right of petition to international institutions, while 75(1) refers to guarantees for national minorities under treaties. Treaty rights of aliens are guaranteed under Article 17. The Constitution of the Russian Federation, Article 46(3) also provides that everyone shall have the right to appeal, according to international treaties of the Russian Federation, to international bodies for the protection of human rights and freedoms, if all the existing internal state means of legal protection have been exhausted.
55.
In the Italian legal system, like treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. After the 2001 constitutional reform, the new Art. 117, para. 1, reads: “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU-legislation and international obligations.” The Italian Constitutional Court clarified the meaning of this provision in its Decisions Nos. 348 and 349 of 24 October 2007.
56.
According to Hungarian scholars, Article 7(1) is essentially dualist in character. Cf., Németh, János, “Az európai integráció és a magyar Alkotmány [European integration and the Hungarian Constitution],” in Nemzetközi jog az új alkotmányban [International law in the new constitution] ed. Bragyova András (1997), 107.
57.
Article 133 of the Constitution allows the President to request such a ruling from the Constitutional Court. In case of a negative ruling, the Constitution must be amended or the agreement must be either renegotiated or abandoned.
58.
In Hungary the Constitutional Court has competence to carry out an ex ante review of the constitutionality of provisions of an international treaty and if the Constitutional Court finds a problem, the treaty cannot be ratified until the unconstitutionality is repaired. Articles 1(1), 36 of the Act on the Constitutional Court.
59.
E.g. Article 193 allows any court to refer a question of law to the Constitutional Court as to the conformity of a normative act to the Constitution, ratified international agreement or statute, if the answer to such question is necessary to enable it to give judgment.
60.
Article 79 para. 1 of the Constitution reads: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
61.
Until 2010 there were only three cases of constitutional review of treaties. In 2000 the Constitutional Court rejected the complaint on the ground that the treaty had been executed (judgment of 24 October 2000, SK 31/99), see point 2.3. The Court allowed the control in two other cases: the judgment of 11 May 2005 (K 18/05) on the EU Accession Treaty (brought under Article 191); the judgment of 18 December 2007, SK 54/05, on Article 32 of the Protocol No. 4 to the Europe Agreement (constitutional complaint).
62.
Austrian Federal Constitution, Art. 3(2) requires that a constituent state consents to a treaty changing its borders. Note that the Senate advice and consent requirement in the U.S. is deemed to protect the rights of the component states.
63.
The High Court has clarified that when Australia becomes a signatory to a treaty, the Commonwealth Parliament has all necessary powers to pass implementing legislation. Commonwealth v Tasmania (“Tasmanian Dams case”) [1983] HCA 21; (1983) 158 CLR 1 (1 July 1983); Pulyukhovich v Commonwealth (“War Crimes Act case) [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991); XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 (13 June 2006).
64.
See Maclaine Watson & Co. Ltd. v. Department of Trade and Industry, (1990) 2 A.C. 418, speech of Lord Oliver at 500; and British Airways v. Laker Airways (1985) AC 58.
65.
See Bresciani Case, (1976) E.C.R. 129; and Kupferberg Case, (1982) E.C.R. 3641.
66.
R. v. Lyons, H.L., (2003) 1 A.C. 976, (2002) UKHL 44, (2002) 3 W.L.R. 1562; (2002) 4 All E.R. 1028, speech of Lord Bingham, para 13. See also, for example, Attorney General v. Guardian Newspapers Ltd (No. 2) (1990) 1 AC 109, speech of Lord Goff, at 283.
67.
This classic dualist approach was most clearly stated in Attn-Gen Ontario v Attn-Gen Canada (1912) AC571 (PC).
68.
For example SR 1972/244 (Australia), SR 1980/112 (Germany). See Law Commission, 1996 above, nt 19, p116.
69.
For examples, Article 87, para. 8, of the Italian Constitution specifies that the President of the Republic “ratifies international treaties which have, where required, been authorised by the Houses.” Article 80 indicates that authorization by law is required for the ratification of international treaties “which are of a political nature, or which call for arbitration or legal settlements, or which entail changes to the national territory or financial burdens or changes to legislation.” Article 89 provides for further governmental control on the President’s power of ratification by requiring the proposing minister – usually the President of the Council of Ministers –, to countersign, assuming the political responsibility, the act of ratification for it to be valid. Argentina, Austria, Germany, Poland, the United States and Venezuela also recognized have simplified procedures or recognize executive agreements.
70.
See D. Shelton, ed., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000).
71.
In Serbia, all binding agreements must be ratified. Thus, the Dayton Peace Agreement signed between the Bosnia and Herzegovina, Croatia and FR Yugoslavia, which marked the end of war in the territory of Bosnia, entered into force on the day of its signature on December 14, 1995 according to its Article 11. According to international treaty rules, no ratification was required for this Agreement to be binding and applicable. However, the Constitution requires ratification and publication, and the treaty was ratified by the Yugoslav parliament in December 2002. Act on Ratification of the General Framework Agreement for Peace in Bosnia and Herzegovina, Official Gazette of FR Yugoslavia – International Treaties, no. 12/2002.
72.
See, e.g., B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912) (recognizing congressional-executive agreements).
73.
Although not mentioned in the Constitution, the power of the President to enter into sole-executive agreements in at least some contexts has been validated by the Supreme Court. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 679–80, 686 (1981) (recognizing presidential authority to conclude sole executive agreements to end the Iranian hostage crisis); United States v. Pink, 315 U.S. 203, 229.
74.
As of May 16, 2010, the VCLT had 111 states parties among the 192 UN member states.
75.
Argentina is not a party to the VCLT but utilizes it in determining what is a treaty. Dotti, Miguel A., Fallows: 321:1226, Supreme Court of Argentina. Poland, Russia and Venezuela do the same.
76.
See, e.g., Corte di Cassazione (Judgment No. 9321 of 16 December 1987); Corte di Cassazione (Judgment No. 7950 of 21 July 1995). The Corte di Cassazione (Judgment No. 6100 of 13 July 1987) has underlined that treaties codifying “general customary laws” must be interpreted in the light of these international customary rules and, if necessary, the international customary rules shall be used to fill in any gap in the treaty provisions. However, in its Judgment No. 3610 of 24 May 1988, the Corte di Cassazione affirmed that when two interpretations of the same provision of an international treaty are possible, one in pursuance of and the other against the Italian Constitution, the first interpretation must be preferred by the court.
77.
United States courts have long accorded deference to the executive branch’s views as to the meaning of a treaty to which the United States is a party. See e.g., Medellin v. Texas, 128 S. Ct. 1346 (2008); Medellin v. Dretke, 544 U.S. 660 (2005); Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989); United States v. Stuart, 489 U.S. 353 (1989); see generally Scott Sullivan, “Rethinking Treaty Interpretation”, 89 Tex. L. Rev. 777, 789 (2008) (describing contemporary treaty interpretation as involving “near-total deference.”)
78.
See Medellin v. Texas, supra; United States v. Alvarez-Machain, 504 U.S. 655 (1992); Sumitomo Shoji America v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of treaty language controls unless “application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories”) quoting Maximov v. United States, 373 U.S. 49, 54 (1963). American courts rarely make reference to the Vienna Convention’s rules on treaty interpretation.
79.
Reservations, understandings, and declarations.
80.
However, according to the President of the Cour de cassation, the court applies the ECHR extensively directly – cf. Guy Canivet, “The Use of Comparative Law before the French Private Law Courts,” in Canivet et al. eds., Comparative Law before the Courts (BIICL 2005) 181, 189 f.
81.
See, for example, the Carriage by Air Act 1961, sec. 4A, concerning interpretation of terms in the Warsaw Convention of 1929.
82.
In Japan, the Courts apply the general rules of treaty interpretation and have cited Articles 31 and 32 of the VCLT. There is no particular deference accorded the views of the government, except as concerns the issue of the constitutionality of a treaty or concerning whether a statement is a reservation or an interpretive declaration. The Tokushima District Court, in its judgment on March 15, 1996 in a case claiming State compensation for a prisoner who was obstructed in efforts to see his counsel concerning a civil suit by prison guards (Hanrei Jihō, vol.1597, p.115), reproduced the provisions of Article 31, paragraph 3 (a), (b), (c) in detail in examining the relevance of the jurisprudence of the European Court of Human Rights on Article 6, paragraph 1 of the European Convention of Human Rights for the purpose of interpretation of Article 14, paragraph 1 of the ICCPR.
83.
Even dualist countries where treaties must be incorporated into domestic law face this issue. The exception seems to be Israel, where it has been accepted that treaties are not automatically accepted into domestic law but need to be implemented by primary legislation, or by secondary legislation if such implementation was previously authorized in principle by primary legislation. Non-implemented treaties are not devoid of any legal effect, though, since the courts have adopted a rule of interpretation and a rule of presumption which ensure, to the extent possible, the compatibility of Israeli domestic law with Israel’s international commitments. The incorporation doctrine and practice means there is very limited scope for the notion of self-executing treaties in Israel. See National Report of Israel, pp. 17–21.
84.
The concept of self-executing treaties had become well established in Polish judicial practice long before the 1997 Constitution entered into force. In the judgment of 21 November 2003 (I CK 323/02) the Supreme Court referred to the conditions of direct applicability in the following manner: “The so-called formal condition is that the treaty must be duly ratified and published in the Journal of Laws. The substantive condition requires the completeness of the treaty provision that enables its operation without any additional implementation”.
85.
The Court added that such a view is confirmed by Article 91 para. 1 of the Constitution stipulating that an international agreement shall be applied directly, unless its application depends on the enactment of a statute.
86.
In the Czech Republic, as in most other states, a ratified treaty is regarded as self executing if the rights and obligations stipulated therein are sufficiently specific that such a treaty can be applied in the legal order without any further legislative specification in a separate act. In Greece, similarly, international agreements have a “self-executing” character if their provisions have sufficiency and fullness and either attribute or recognize rights of private persons, capable to support legal actions before tribunals, or prescribe obligations of the executive which private persons can invoke before tribunals. See, e.g., the international convention signed under the auspices of the United Nations in Ramsar of Iran (1973) for the protection of wildlife reserves of international interest. The disregard of the obligations imposed on the contracting parties legitimized the legal interest of injured physical persons to have recourse before tribunals. Supreme Court, 2343/1987. “Non-self-executing” treaties are those international conventions which do not produce direct legal effects in the internal legal order, either because their application requires the promulgation of supplementary measures in the internal field, or because their purpose is not the recognition or the attribution of rights capable of being pursued by judicial procedures.
87.
Cf. Administrative Court, Collection No. 5819 F, October 21, 1983; Supreme Court, Decision No. 7Ob1/86, February 20, 1986.
88.
Ann. dr. lux. 5 (1995) 307. See the discussion in the National Report, p. 10.
89.
The leading Supreme Court judgment considered that it was not relevant whether the

“States parties intended to recognize the direct effect of Art. 6 para. 4 of the European Social Charter, since neither from the text nor from its travaux préparatoires could it be inferred that such effect had been excluded. In those circumstances, according to Netherlands law, only the contents of the provision are decisive: does it oblige the Netherlands legislator to make rules of a certain content or import or is that provision of such a nature that it can be applied as objective law right away.” Supreme Court HR 30 May 1986 (NS/FNV), NJ 1986, 688 § 3.2.
90.
See generally Fleuren op.cit.
91.
With respect to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the courts – with a few exceptions – have not considered its provisions as self-executing. The Government, when submitting the treaty for parliamentary approval, observed that most of its provisions would not be directly applicable. In support of that view it pointed to Art. 2 para. 1 where the State “undertakes to take steps [..] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights concerned in the present Covenant”.
92.
See Geiringer C, “Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law”, 21 NZULR 66, 2004.
93.
Article 16(2) of the Serbian Constitution provides that “[g]enerally accepted rules of international law and ratified international treaties shall be an integral part of the legal system of the Republic of Serbia and directly applicable.”
94.
Commercial Court in Belgrade, Decision no. Pž. 480/2000 of February 10, 2000.
95.
Supreme Court of Serbia, Judgment no. Už. 74/2004 of September 6, 2004. Published in: Bilten sudske prakse Vrhovnog suda Srbije, no. 2/2004 , at 111.
96.
The Constitutional Court found that restrictions imposed by the Law on Pensions and Disability Allowances were contrary to Article 3, 6(1), 11 of the ICESCR.
97.
High Commercial Court, Decision no. Pž. 9881/2005 of November 11, 2005. In those cases which dealt with the Agreement on Succession Issues after it entered into force, petitions for establishment of property rights on the date of succession, December 31, 1990, were denied due to the wording of Annex G to the Agreement on Succession Issues. The issue before domestic courts was whether the Agreement, read as a whole, purported to restore property rights itself or only after some other national measures are undertaken. Domestic courts opted for the latter option offering the following reasoning: “According to Articles 4 and 7 of the Annex G to the Agreement on Succession Issues, it is clear that the intent of parties to this Agreement was to conclude bilateral agreements in order to set forth procedures for handling these requests and to establish special commissions for these procedures and implementation of the Agreement so that natural and legal persons may have their petitions for establishment of property rights heard. Only after this procedure, as to be envisaged by a bilateral agreement, and if their petitions are denied, the courts will be entitled to hear these cases. Therefore, any judicial determination on these issues is conditioned upon the preliminary proceeding before these commissions in the procedure to be set forth in the bilateral agreements of successor states, which is, for this Court, a preliminary procedural issue.” See also High Commercial Court, Decision no. Pž. 255/2006 of January 24, 2006; High Commercial Court, Decision no. Pž. 6178/2006 of October 30, 2006.
98.
U.S. 331 (2006).
99.
U.S. at 373 quoting Head Money Cases, 112 U.S. 580, 598–99 (1884).
100.
Article 2 par.2 prescribes that “Greece, adhering to the generally recognised rules of international law, pursues the strengthening of peace and of justice, and the fostering of friendly relations between peoples and states.”
101.
It must be noted, however, that “The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity”
102.
Unlike the term treaty, the phrase ‘universally recognized principles and norms of international law’ is not defined in Russian legislation. The Presidium of the Supreme Court of the Russian Federation addressed the constitutional provision in Decision of 31 October 1995 № 8. It held that universally recognized principles and norms of international law shall be set directly in international documents. In a separate Presidium Decision of the Supreme Court of the Russian Federation of 10 October 2004 № 5 “universally recognized principles of international law” were defined as fundamental imperative norms, departure from which is inadmissible while “universally recognized norms of international law” are standards of conduct, accepted and applicable as legally binding by international community of states.
103.
See Bragyova, András, “A magyar jogrendszer és a nemzetközi jog kapcsolatának alkotmányos rendezése” [The constitutional organization of the connection between the Hungarian legal system and International law], in Nemzetközi jog az új Alkotmányban [International law in the new Constitution] ed. Bragyova, András (Budapest: Közgazdasági és Jogi Könyvkiadó MTA Állam- és Jogtudományi Intézete, 1997), 16. Zagrebelsky, op. cit. n. 6, at p. 120.
104.
See Bodnár, László, “A nemzetközi jog magyar jogrendszerbeli helyének alkotmányos szabályozásáról” [On the constitutional regulation of the place of International law in the Hungarian legal system], in Alkotmány és jogtudomány. Tanulmányok [Constitution and Jurisprudence, Studies] (Szeged, 1996) p. 23. Compare Sulyok, Gábor: A nemzetközi jog és a magyar jog viszonya, Korreferátum Molnár Tamás A nemzetközi jog és a magyar jogrendszer viszonya 1985–2005 című előadásához [The relationship between international law and Hungarian law, reflections to the presentation held by Tamás Molnár on The relationship between international law and Hungarian legal order] In A magyar jogrendszer átalakulása, 1985/1990–2005:II. Kötet [Transforming Hungarian legal system], szerk. Jakab András – Takács Péter [ed. Jakab, András and Takács, Péter], Gondolat: Eötvös Loránd Tudományegyetem Állam- és Jogtudományi Kar, Budapest, 2007, p. 947.
105.
The finding of the Court conforms to the opinion of the scholars who have participated in the drafting of the Constitution. E.g. R. Szafarz wrote in 1997 that Article 9 “expresses the principle of (…) Polish legal order in respect to the norms of international law and establishes a presumption of automatic, even if only indirect, incorporation of those norms into that order.” (Międzynarodowy porządek prawny i jego odbicie w polskim prawie konstytucyjnym [International Legal Order and Its Reflection in the Polish Constitutional Law], (in:) M. Kruk ed., Prawo międzynarodowe i wspólnotowe w wewnętrznym porządku prawnym [International Law and Community Law in the Domestic Legal Order], Warszawa 1997, p. 19.
106.
The confirmation of the legal effects of Article 9 is found in the judgment of the Constitutional Court of 11 May 2005 (K 18/05) on the EU Accession Treaty of 2003. The Court declared that “Article 9 expresses an assumption of the Constitution that, on the territory of Poland, a binding effect should be given not only to the acts (norms) enacted by national legislature, but also to the acts (norms) created outside the framework of national law-making authorities. The Constitution accepts that the Polish legal system consists of multiple components/elements.”
107.
On immunities, see R. van Alebeek, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (OUP, Oxford 2008); Arthur Watts, The Legal position in International law of Heads of states, head of Governments, and Foreign Ministers, in Recueil des cours 1994-III, Vol. 247 (Martinus Nijhoff, 1995); Hazel Fox, The Law of State Immunity (Oxford, 2005).
108.
D. Rufino Basavilbaso c. Ministro Plenipotenciario de Chile, Dr. Diego Barros Arana, Fallos: 19:108.
109.
In 1950, the Supreme Court found that customary international law had shifted from a rule providing absolute immunity to a more restrictive practice. Supreme Court, Collection No. SZ23/143, May 10, 1950, translated in ILR 77, 155.
110.
Reference re Powers of Ottawa (City) and Rockcliffe Part, (1943) S.C.R. 208; Reference re Newfoundland Continental Shelf, (1984) 1 S.C.R. 86; In re Secession of Quebec, (1998) 2 S.C.R. 217.
111.
See, e.g. Jose Pereira E Hijos S.A.v. Canada (Attorney General), (1997) 2 F.C. 84 at para. 20 (T.D.); Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675 at para. 65 (C.A.); and other cases cited in the National Report of Canada, pt. 1, p. 21–22.
112.
R. v. Hape, [2007] 2 S.C.R. 292.
113.
National Report of Canada, p. t, pp. 22–23.
114.
The Ship “North” v. The King (1906) 37 S.C.R. 385. See National Report of Canada, pt. 1, pp. 26–27.
115.
The legislature has also on occasion called upon the courts to apply customary international law. See Crimes against Humanity and War Crimes Act, ss. 4(3) and 6(3)–(4) defining genocide, crimes against humanity and war crimes with reference to their definitions in customary international law.
116.
National Report of Canada, p. 1, p. 27.
117.
The classic embodiment of this approach is found in works of the English jurist, Blackstone, who describe the relationship in simple terms; ‘the law of nations…is here adopted in its full extent by the common law, and is held to be part of the law of the land’ Blackstone’s Commentaries on the Laws of England, Book 4, Chap. 5, Of Offences Against the Law of Nations.
118.
The notable exception to this is Treasa Dunworth’s work; T Dunworth, Hidden Anxieties: Customary International Law in New Zealand, (2004) 2 NZPIL 67–84.
119.
Dunworth id., at 69.
120.
For a practical example see Press Release No. 97/2003 of 13 November 2003 – Extradition to the United States of America, http://bundesverfassungsgericht.de/en/press/bvg97-03en.html/
121.
Supreme Court, 14/1896.
122.
Appeal Court of Athens, 6384/1989: “…the 135/1971 international convention of the International Labour Organization has not been promulgated by law and, therefore, it cannot be applied for the reason that it does not establish generally accepted rules since it has received ratifications only by nine states among the 150 member states of the International Labour Organization.”
123.
Supreme Court, 11/2000: “…the state immunity on civil matters does not cover actions of state organs, illegal according to international law (war crimes), but the relevant to this matter Convention of the Council of Europe on state immunity (1972), despite the fact that it has not been put into force, codifies rules of international customary law.”
124.
/1991: “…in the case of a convention between the United States and Greece establishing taxation waivers, the longstanding abstention of the Greek Treasury from tax claims does not constitute a legal commitment based on generally accepted rules of the general international law.”
125.
Supreme Court 14/1896: “…the immunity derived from the general custom between states and its recognition is generally accepted.”
126.
Supreme Court 11/2000.
127.
Military Court of Athens 1463/1993: “…the not yet in force 1978 Vienna Convention on state succession has codified the customarily valid rule on the continuity of conventional obligations.”
128.
Shimshon v. Attorney General, (1951) 4 PD 143, at pp. 145–146.
129.
Abu ’Aita v. Commander of the Judea and Samaria Region, 37(2) P.D. 197 (1983), at 241.
130.
Art. 10, para. 1, Const. expressly establishes that: “The Italian legal system conforms to the generally recognised rules of international law”. This amounts to a “special” method of implementation of international customary law not requiring legislation by the Parliament or the Government in order to implement international law – the method is usually used to incorporate treaties or binding acts adopted by international organizations that are not considered to be self-executing.
131.
See Corte di Cassazione (Supreme Court), Corte di Cassazione, Ferrini v. Federal Republic of Germany, Judgement No. 5044 of 11 Mar. 2004, Orders Nos. 14200–14212 of 29 May 2008, Lozano, Judgment No. 31171 of 24 July 2008; Criminal Proceedings against Josef Max Milde, Judgment No. 1072 of 13 January 2009.
132.
See Constitutional Court, Judgment No. 67 of 1961.
133.
See Constitutional Court, Judgment No. 135 of 1963.
134.
See Constitutional Court, Judgment Nos. 48 of 1967 and 69 of 1976.
135.
See Constitutional Court, Judgment No. 131 of 2001.
136.
Corte di Cassazione, Ferrini, Judgment No. 5044 of 2004, Orders Nos. 14200–14212 of 2008, Milde, Judgment No. 1072 of 2009.
137.
See, Lozano, Judgment No. 31171 of 2008.
138.
Cour d’appel 11 février 1999, Ann. dr. lux. 10 (2000) 363, 369–370.
139.
Orzecznictwo Sądów Polskich, 1926-V, nr 342.
140.
Orzecznictwo Sądów Polskich, 1926-V, nr 418.
141.
E.g. the provisions of Criminal Procedure Code or Civil Procedure Code refer to jurisdictional immunities of diplomats (Article 1111 para. 1), the Law on Excise Duties of 2004 (Article 25 para. 1), the Law on Local Taxes or Duties of 1991 (Article 13 para. 2) and the Road Traffic Law of 1997 (Article 77 para. 3) – concern the taxes or duties exemptions for diplomats.
142.
The Constitutional Court of Austria deems a decision of an international organization to become domestic law after it is published in the Federal Law Gazette, while the Administrative Court seems to require implementing legislation.
143.
Article 75(22) of the Constitution.
144.
National Report of Canada, pt. 2, pp. 2–7.
145.
National Report of Canada, part 1, quoting Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100 at para. 126.
146.
Id., p. 7, quoting R. v. Finta, (1994) 1 S.C.R. 701, per La Forest J dissenting on another point.
147.
Id. pp. l 7–8.
148.
Constitutional Court judgment of 30 September 2008 (K 44/07) referring to the UN global strategy on counter-terrorism of 8 September 2006, Security Council resolutions, in particular resolution 1267 (1999) and its successor resolutions, resolutions 1373 (2001) and 1540 (2004), Plan of Action, Secretary General report of 2006 “Uniting against terrorism: recommendations for a global counter-terrorism strategy” (A/60/825), the European Convention on Human Rights of 1950, the European Convention on the Suppression of Terrorism of 1977, amended by the Protocol of 2003, Council of Europe Convention on the Prevention of Terrorism of 2005, resolutions and declarations of the Committee of Ministers and the Parliamentary Assembly, e.g. Guidelines on Human Rights and the Fight against Terrorism of 2002, Opinion of the European Commission for Democracy through Law (Venice Commission) on the Protection of Human Rights in Emergency Situations of 2006 etc.
149.
In the judgment of 23 April 2008 (SK 16/07) on the freedom of expression and medical ethics the Constitutional Court interpreted Polish law in the light of the Council of Europe Convention on Human Rights and Biomedicine of 1997, signed but not ratified by Poland and a non-binding document of the World Medical Association – the International Code of Medical Ethics and the numerous judgments if the European Court of Human Rights
150.
In the judgment of 18 December 2007 (SK 54/05) to establish the content of the right to good administration the Constitutional Court drew inspirations from the provisions of the non-binding documents – Article 17 I 20 of the Code of Good Administration of the EU Parliament of 2001 and Article 41 of the Charter of Fundamental Rights of the European Union (judgment para. 2.6). In the judgment of 1 July 2008 (K 23/07) the Constitutional Court found support i.a in the Universal Declaration on Human Rights to prove that on the ground of the Constitution nobody can be forced to assemble or to be the member of a trade union (negative assembly right).
151.
In determining the appropriate Israeli standard, the Supreme Court considered as both authoritative and relevant the UN Economic and Social Council Standard Minimum Rules on the Treatment of Prisoners, 1955 (Sect. 10 and 19), as well as the UN Center for Human Rights Basic Principles for the Treatment of Prisoners, 1990 (Arts. 1, 5). The Supreme Court further considered the European Prison Rules, 1987 (Rules 15, 24), as well as legislation in European countries and the US. HCJ 4634/04 Physicians for Human Rights – Israel v. Minister of Public Security and Commissioner of the Prisons Service, tak-Supreme 2007(1), 1999.
152.
Labor Appeal (National) 480/05 Eli Ben-Ami v. plonit tak-National 2008(3), 6.
153.
HCJ 3239/02 Mar’ab v. Military Commander of Judea and Samaria, tak-Supreme 2003(1), 937.
154.
HCJ 7052/03 Adallah v. Minister of the Interior, tak-Supreme 2006(2), 1754.
155.
National Report, pp. 42–47.
156.
See, e.g. Corte di Cassazione, Judgments Nos. 6030 and 6031 of 29 May 1993, relating to the applicability of the Universal Declaration of Human Rights in the national legal order.
157.
See, e.g. Constitutional Court Decision No. 45 13 January 2005.
158.
HR 28 November 1950, NJ 1951, 137 (Tilburg).
159.
E.g., the Helsinki Final Act 1975, Concluding Document of the Vienna meeting 1986, the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe 1990.
160.
“Provisions on human and minority rights shall be interpreted so as to promote the values of a democratic society and in accordance with international human and minority standards as well as practice of international institutions monitoring their enforcement.” According to the opinion of the Venice Commission, this provision enables the introduction of international case law into the Serbian Constitutional system: “From a European perspective this means that above all the case law of the European Court of Human Rights is of highest significance for the interpretation of fundamental rights in the Constitution of Serbia.” Id., at 8, para. 26.
161.
District Public Prosecutor v. Nikolic, Case No. Kž. I 1594/02, Supreme Court of Serbia, February 24, 2003, 128 ILR 691 (2006).
162.
District Court in Subotica (Criminal Section), Judgment no. Kž. 266/05 of August 15, 2005.
163.
Recommendation of the Committee of Ministers to Member States on the Improvement of Domestic Remedies, REC (2004)6.
164.
See, e.g., Natural Res. Def. Council v. EPA, 464 F.3d 1, 8–9 (D.C. Cir. 2006) (holding that consensus decisions by state parties to the Montreal Protocol reached after treaty ratification are “not law” within the meaning of the Clean Air Act and thus not enforceable in U.S. courts); Flores v. S. Peru Copper Corp., 414 F.3d 233, 263 (2d Cir. 2003) (finding Rio Declaration not legally binding and therefore not the basis for a human rights suit under the Alien Tort Claims Act).
165.
Estelle v. Gamble, 429 U.S. 97, 103–04 & n.8 (1976).
166.
Carmichael v. United Technologies Corp., 835 F.2d 109, 113 n.6 (5th Cir. 1988). Cited in the same list were two other instruments with similar status, the U.N. Code of Conduct for Law Enforcement Officials (1979) and the U.N. Principles of Medical Ethics (1982).
167.
G.A. Res. 217A (III), U.N. Doc. A/810 (1948) [hereinafter UDHR]. The number is based on a Oct. 14, 2009, search of the allfeds database.
168.
See Konar v. Illinois, 327 Fed.Appx. 638, 640(7th Cir. 2009) (in divorce and custody matter, declining to apply either the UDHR or the Vienna Declaration and Programme of Action, U.N. Doc A/ CONF.157/23 (July 12,1993), reasoning that both are “non-binding declarations that provide no private rights of action”).
169.
Cantos, Fallos: 326–2: 2968, Supreme Court of Argentina.
170.
December 18, 2008, Corte Primera de lo Contencioso case.
171.
This is also the case in the Netherlands. The Code of Criminal Procedure in Art. 957 para. 1 sub 3 provides for reopening of the contested proceedings.
172.
Article 87, Section 1, Letter i.
173.
Federal German Constitutional Court, Press Office, Press release no.92/2004 of 19. October 2004 – On the consideration of the decisions of the European Court of Human Rights by domestic institutions, in particular German courts, http://www.bundesverfassunsgericht.de/en/press/bvg04-092en.html.
174.
Originally Act L of 2005 would have ruled on this matter: it would have amended Act I of 1956 on the Promulgation of the Charter of the United Nations, and these resolutions would have to be promulgated in Magyar Közlöny. (The parliament has not accepted the proposal.)
175.
Csuhány Péter: Gondolatok a nemzetközi jog és a belső jog viszonyáról, Állam- és Jogtudomány, 2005, 267.
176.
Molnár, supra n.104, 943.
177.
HR 7 November 1984, NJ 1985, 247.
178.
Occasionally, Netherlands courts also refer to General Comments of the Committee supervising the ICESCR; an example albeit negative is: Centrale Raad van Beroep (Central Appeals Tribunal: Supreme court in matters of social security) 11 October 2007 (LJN BB 5687).
179.
In one case, the Supreme Court of Serbia denied the request for damages of the legal person for the alleged breach of its reputation on the ground that there is no legal basis in domestic law to grant damages for this cause of action. Though the claimant relied on the case law of the European Court of Human Rights in order to prove that reputation of legal and natural persons have been equally recognized and protected by the European Convention on Human Rights, the Supreme Court went into analysis of several ECHR cases but refused to apply their rationale mostly because of the temporal limitation on the application of the European Convention. Supreme Court of Serbia, Judgment no. Prev. 265/2007 of June 10, 2008.
180.
Supreme Court of Serbia, Judgments nos. Rev. 971/2007(1) and Rev. 971/2007(2) of September 6, 2007.
181.
These provisions are also in line with the Recommendation of the Committee of Ministers of the Council of Europe 2000 (2) on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted by the Committee of Ministers on 19 January 2000 at the 694^th meeting of the Ministers’ Deputies, available at: https://wcd.coe.int/ViewDoc.jsp?id=334147&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC679.
182.
U.N. Comm. Against Torture, Comm. No. 113/1998, Ristić v. Yugoslavia, U.N. Doc. CAT/C/26/D/113/1998 (2001), (May 11, 2001).
183.
Ahani v. Canada (Attorney General), (2002) 58 or (3d) 107 (CA).
184.
Suresh v. Canada (Minister of Citizenship and Immigration), Supreme court of Canada) (2003) SCR 3.
185.
See, generally on the case, Joanna Harrington, “Punting Terrorist, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection,” 48 McGill Law Journal 55 (2002).
186.
Ahani v. Canada (Attorney General), supra note 183, para. 29.
187.
Ahani v. Canada (Attorney General), supra note 183, at para. 33.
188.
“It is useful to note that the Committee is neither a court nor a body with a quasi-judicial mandate, like the organs created under another international Human Rights instrument, the European Convention on Human Rights (i.e., The European Commission of Human Rights and the European Court of Human Rights). Still, the Committee applies the provisions of the Covenant and of the Optional Protocol in a judicial spirit and, performs functions similar to those of the European Commission of Human Rights, in as much as the consideration of applications from individuals is concerned. Its decisions on the merits (of a communication) are, in principle, comparable to the reports of the European Commission, non-binding recommendations. The two systems differ, however, in that the Optional Protocol does not provide explicitly for friendly settlement between the parties, and, more importantly, in that the Committee has no power to hand down binding decisions as does the European Court of Human Rights. States parties to the Optional Protocol fendeaf to observe the Committee’s views, but in case of non-compliance the Optional Protocol does not provide for an enforcement mechanism or for sanctions.” “Introduction”, Selected Decisions of the Human Rights Committee under the Optional Protocol, Vol. 2 (1990), at p. 1. See also See Burgers and Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1998), at p. 9. See also Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice; Duxbury, “Saving Lives in the International Court of Justice: The Use of Provisional Measures to Protect Human Rights”, (2000) 31 California Western International Law Journal 141;
189.
Ahani., at para. 42.
190.
Medellín v. Texas, 128 S. Ct. 1346 (2008).
191.
Id. at 1352 (discussing Case Concerning Avena and Other Mexican Nationals (Mex.v.U.S.), 2004 I.C.J. 12 (interpreting Vienna Convention on Consular Relations, Art. 36(1)(b), Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820), in challenge brought by Medellín and 50 other Mexican nationals awaiting execution in the United States).
192.
U.N. Charter, Art. 94(1)), quoted in Medellín, 128 S. Ct. at 1354.
193.
See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
194.
Cafés Law Virginia S.A., Fallos: 317–3:1282, Supreme Court of Argentina.
195.
The authority added by Article 16(1) is narrowly drawn; it allows constituent states to negotiate agreements only on subject matters within their own sphere of competence and only with States bordering Austria and their respective constituent states. There are also specified procedures that must be followed, including obtaining the consent of the federal government before the treaty is concluded by the Federal President on behalf of the state. Moreover, the treaty must be terminated if the Federal Government so requests due to a predominant federal interest. National Report of Austria, p. 8.
196.
“Relations with foreign states shall be conducted by the Federation.”
197.
U.S. Const., Art. VI[3]:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
198.
U.S. Const., Article I, § 10. The safeguards of federalism in this realm are political rather than juridical. Each state sends two senators to the U.S. Senate, the body that gives “advice and consent” on proposed treaties, and each state sends a delegation to the House of Representatives, which often enacts implementing legislation in order to carry out treaty obligations.
199.
See, e.g., Virginia-Maryland Compact of 1785 (governing fishing and navigation rights in the Potomac River, the Pocomoke River, and the Chesapeake Bay)
200.
See Caroline N. Broun et al., The Evolving Use and the Changing Role of Interstate Compacts: A Practitioner’s Guide 4 (2006).
201.
Washington Metropolitan Area Transit Regulation Compact (1981).
202.
Driver License Compact (1960).
203.
Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, New York, and Wisconsin.
204.
Great Lakes-St. Lawrence River Basin Water Resources Agreement (2005).
205.
See Victoria v. Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416.
206.
Polites v. Commonwealth (1945) 70 CLR 60 (10 April 1945 at 69; Chu Kheng Lim v. Minister for Immigration, Local Government & Ethnic Affairs, (1992) HCA 64; (1992) 176 CLR 1 (8 December 1992).
207.
See, to this effect, Mortensen v. Peters (1906) 8 F 93; Collco Dealings Ltd. v. IRC, (1962) A.C. 1; Salomon v. Customs and Excise Commissioners, (1967) 2 Q.B. 116; Post Office v. Estuary Radio Ltd., (1968) 2 Q.B. 740; Post Office v. Estuary Radio Ltd., (1968) 2 Q.B. 740; Garland v. British Rail Engineering Ltd (1983) 2 AC 751; R v. Lyons, H.L., (2002) UKHL 44; (2003) 1 A.C. 976; (2002) 3 W.L.R. 1562; (2002) 4 All E.R. 1028; and A (FC) v. Secretary of State for the Home Department, House of Lords, (2005) UKHL 71.
208.
See R. v. Secretary of State for the Home Department, Ex parte Venables, House of Lords, (1997) 3 W.L.R. 23(1998) A.C. 407, speech of Lord Bingham, at 499.
209.
See, e.g. Mortensen v. Peters (1906) 8 F 93; and Collco Dealings Ltd. v. IRC, (1962) A.C. 1.
210.
Human Rights Act 1998, sec. 3.
211.
Human Rights Act 1998, sec. 4.
212.
Mabo v. State of Queensland (No. 2), (1992) 175 CLR 1 (3 June 1992); Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 183 CLR 273 at 288.
213.
National Report of Israel, pp. 36–38.
214.
Al-Kateb v. Godwin (2004) 208 ALR 124 at 140–4, 168–9.
215.
National Report of Canada, pt 1, 43–51.
216.
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 283. Commentators refer to this as the “minimum content presumption.” Ibid. at n. 236.
217.
National Report of Canada, pt 1, p. 48.
218.
HR 15 June 1976, NJ 1976, 551.
219.
Constitutional Court, Decision No. B559/08, July 2, 2009.
220.
American Convention on Human Rights, November 22, 1969, 1144 UNTS 123.
221.
Articles 28 par.1 and 36 par.2 of the Constitution.
222.
Supreme Court, 450/1996.
223.
First Instance Court of Athens, 9934/1983.
224.
Supreme Court (in plenary), 11/2000.
225.
See e.g. the decision of the Supreme Administrative Court of 3 September 1997 (III RN 38/97) in which the Court interpreted the Code of Administrative Procedure in the light of Article 6 ECHR finding that whenever there were serious doubts regarding the admissibility of a recourse, the Court should proceed on the merits since the purpose of the Code seen in the light of Article 6 of the Convention is to allow the citizen to fulfill its right to be heard by an independent tribunal; judgment of the same court of 4 February 1997 (III RN 59/96), interpreting the statute of the Supreme Administrative Court in such a way as to provide for judicial control of an administrative refusal to send a pensioner for spa treatment; decision of the Supreme Court of 11 January 1995 (III ARN 75/94), in which the Court held that the decision to reject a plea for exemption from court costs should be especially carefully assessed in order to exclude barring the individual from access to justice; similarly, the Supreme Administrative Court judgment of 5 December 2001 (II SA 155/01) concerning a journalist’s access to official documents; judgment of 13 November 1997 (I CKN 710/97) of the Supreme Court in which the Court interpreted the Unfair Competition Law of 1993 in the light of Article 8 of the Paris Convention of 1883 on industrial property protection as revised by the 1967 Stockholm Act. In the judgment of 17 November 2004 the Supreme Administrative Court held that the concept of pattern, model or sample in the Customs Code of 1997 “has to be understood in the context of Article II of the International Convention to Facilitate the Importation of Commercial Samples and Advertising Materials of 1952 (…) using in that regard the criterion of “negligible value””. In the judgment of 22 November 2007 the Supreme Court interpreted Polish Transport Law of 1984 in conformity with the Convention on the Contract for the International Carriage of Goods by Road (CMR) of 1956, and to interpret the provisions of the said Convention the Court referred to the relevant judgments of French, Austrian and German courts.
226.
The statement was later repeated in many other judgments: “Since the accession of Poland to the Council of Europe, the case law of the European Court of Human Rights in Strasbourg should be applied as an essential source of interpretation of the provisions of the Polish domestic law.” III ARN 75/94.
227.
E.g. the judgment of the Constitutional Court of 23 April 2008 (SK 16/07) on the freedom of expression and medical ethics.
228.
Belgrade District Court granted a prohibitory injunction to stop the distribution of the information contained in a newspaper article. In its reasoning the court rejected arguments of respondents based on the ICCPR and ECHR relying on national security and proper administration of justice. The court noted that ECHR at that time was not in force for Serbia: “Despite the fact that the European Convention was not ratified by the State Union of Serbia and Montenegro, the Court still decided to take into consideration its provisions. (…) Therefore, apart from the restrictions based on national security and public order, which have been laid down in the Act on Public Information, the European Convention also envisages the possibility to restrict freedoms in order to maintain the authority and impartiality of the judiciary.” – Public Prosecutor v. Magazine “Svedok”, Belgrade District Court, Judgment of 6 June 2003 in: 127 International Law Reports 315, 319.
229.
High Commercial Court, Decision no. Pž. 4039/2004 of September 15, 2004. The issue before the court was the recognition of the foreign non-judicial decision. In reaching its conclusion that under certain circumstances foreign non-judicial decisions may be equated with judicial decisions, the court relied, inter alia, on international instruments which were not binding upon Serbia and Montenegro.
230.
See, e.g. the March 27, 1997 judgment of the Sapporo District Court in the so-called Nibudani Dam Case involving the claim for annulment of a project of dam construction on a site worshiped as a sacred place by the Ainu, the indigenous people in Japan. Hanrei Jihō, vol.1598, p.33, Hanrei Taimuzu, vol.938, p.75 (holding the authorization of the project by the authorities illegal as exceeding the authorities’ scope of discretionary power given by the Land Expropriation Law). The Court noted that the Japanese government had recognized the Ainu people as a “minority” protected by ICCPR Article 27 during the examination of State report by the Human Rights Committee in 1991. Affirming that the Ainu people’s right to enjoy its culture is guaranteed by Article 27, the Court stated that “in light of the object of the enactment of Article 27 of the Covenant, the restriction [of the right] must be limited to the minimum extent necessary”, and concluded that the authorization of the project by the authorities was illegal.
231.
In a case concerning the rejection of a foreign client by a jewelry shop, in which a Brazilian woman window-shopping in a jewelry shop was ousted by a shop clerk, the Court said: “the International Convention on the Elimination of All Forms of Racial Discrimination … requires State parties to take legislative or other measures against discriminatory acts by individuals and groups. … If we premise the view of the Ministry of Foreign Affairs that this Convention does not require any legislative measures, it is understood that substantive provisions of the Convention operate as an interpretative element of tort, in a case, such as the present one, concerning a claim for compensation based on an unlawful act against an individual”. The Shizuoka District Court, in its judgment on October 12, 1999 (Hanrei Jihō, vol. 1718, p.92, Hanrei Taimuzu, vol.1045, p.216), ordered the owner of the shop to pay compensation to the plaintiff, by applying Article 709 of the Civil Code on tort interpreted in light of the Convention.
232.
The definition of “racial discrimination” and the requirement of prohibition of private discrimination in the ICERD played an essential role in the Court’s judgment. November 11, 2002, Hanrei Jihō, vol.1806, p.84, Hanrei Taimuzu, vol.1150, p.185.
233.
September 16, 2004, unreported.
234.
In a case filed by children born to unmarried Japanese men and Philippine women, children who were recognized by their father after birth, the Grand Chamber of the Supreme Court held the provision of the Nationality Law requiring the marriage of parents as a condition of obtaining Japanese nationality unconstitutional (Article 14 on the equality before the law), confirming the Japanese nationality of all ten plaintiffs. Hanrei Jihō, vol.2002, p.3, Hanrei Taimuzu, vol.1267, p. 92.
235.
See Roper v. Simmons, 543 U.S. 555 (2003); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (referring to practices in other countries in concluding that execution of mentally retarded persons violates the Eighth Amendment); Thompson v. Oklahoma, 487 U.S. 815, 830–31 & n.34 (1988) (Stevens, J.) (plurality opinion) (invalidating state practice of executing defendants under 16 years of age and referring to “other nations that share our Anglo-American heritage” and citing treaties signed but not ratified by the U.S.).
236.
See Roper v. Simmons, 543 U.S. 555, 624 (Scalia, J., dissenting) (“[T]he basic premise of the Court’s argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand.”).
237.
See Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring).
238.
See Lawrence v. Texas, 539 U.S. 558, 572–73 (2003).
239.
Justices Roberts and Alito assured the committee that they saw no role for foreign law in interpreting the U.S. Constitution. See U.S. Senate Judiciary Committee Holds a Hearing on the Nomination of Judge Samuel Alito to the U.S. Supreme Court, Jan. 12, 2006, Westlaw, allnewsplus database; Transcript: Day Three of the Roberts Confirmation Hearings (Morning Session: Sens. Brownback and Coburn), Washingtonpost.com, Sept. 14, 2005, available at 2005 WLNR 14639466 (remarks of Sen. Tom Coburn (R-OK)); Transcript: Day Two of the Roberts Confirmation Hearings; (Part III: Sens. Kyl and Kohl). Washingtonpost.com, Sept. 13, 2005, available at 2005 WLNR 14576513.
240.
See Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 22 Yale L. & Pol’y Rev. 329 (2004); Stephen Breyer, Constitutionalism, Privatization, and Globalization: Changing Relationships among European Constitutional Courts, 21 Cardozo L. Rev. 1045 (2000). See also the exchange of views between Justices Breyer and Scalia on January 13, 2005 at a debate at the American University’s Washington College of Law, available at http://www.freerepublic.com/focus/news/1352357/posts.
241.
Similar but still different wording of the same rule is to be found in Articles 194 and 16 of the Constitution. Different wording of what seems to be the same intent of the legislator was criticized in this particular instance by the Venice Commission: “Finally, rules similar to Article 16 appear, in a different wording, in Article 194. Such repetitions, especially if not identical, are undesirable since they risk opening delicate issues of interpretation.” – European Commission for Democracy through Law (Venice Commission), Opinion on the Constitution of Serbia, adopted by the Commission on its 70th plenary session, Opinion No. 405/2006, CDL-AD(2007)004, Strasbourg, 19 March 2007, p. 6, para. 19, available at: http://www.venice.coe.int/docs/2007/CDL-AD(2007)004-e.pdf.
242.
For example, in a series of cases involving the conflict between the Insurance Act and several bilateral treaties on social security, where the two provided for different and mutually exclusive solutions, domestic courts routinely gave preference to bilateral treaties. The courts found that “in case of conflict between the treaty and domestic legislation, the treaty shall be applied”.See, High Commercial Court in Belgrade, Decision no. Pž. 333/2001 of January 26, 2001; High Commercial Court in Belgrade, Decision no. Pž. 7768/2001 February 8, 2001; High Commercial Court in Belgrade, Decision no. Pž. 4212/2001 July 13, 2001.
243.
National Report of Austria, pp. 49–50.
244.
National Report of Canada, pt. 1, pp. 40–41.
245.
See: Federal Republic of Germany v. Giovanni Mantelli and Others, Preliminary Order on Jurisdiction, No. 14201/2008, ILDC 1037 (It 2008), May 29, 2008.
246.
See Corte di Cassazione, Ferrini, Judgement No. 5044 of 2004.
247.
See Corte di Cassazione, Orders Nos. 14200–14212 of 2008.
248.
In all these cases, the Court dismisses jurisdictional immunity of foreign States in relation to claims by individuals as victims of gross violations of human rights, driving Germany to bring an action before the International Court of Justice complaining that Italy, by the conduct of its courts, has violated the principle of sovereign immunity (International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy)).
249.
See, e.g. Criminal Appeal 336/61 Adolph Eichmann v. The Attorney General, 16 PD 2033 (1962); HCJ 5100/94 Public Committee against Torture in Israel et al. v. Government of Israel et al., 53(4) PD 817 (1999). The judgment is excerpted in English in 30 Israel Yearbook on Human Rights 352 (2000).
250.
Originating Summons (Jerusalem) 2212/03 Nissan Albert Gad v. David Siman-Tov, tak-District 2004(1), 623.
251.
See R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No. 3), House of Lords, [1999] 2 W.L.R. 827[2000] 1 A.C. 147, Lord Browne Wilkinson, at 198; Lord Hope, at 244–45, 247; Lord Hutton, at 261; and Lord Millett, at 275; R. (Binyan Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, Queen’s Bench Division Divisional Court, [2008] EWHC 2048 (Admin), paras. 170–76; and A (FC) v. Secretary of State for the Home Department, House of Lords, [2005] UKHL 71, speech of Lord Bingham, para. 33.
252.
Article 98 of the Constitution provides, without further elaboration in the text, that the Constitution is the supreme law of the land and that “The treaties concluded by Japan … shall be faithfully observed.”
253.
The Russian Federation Constitution provides that if an international treaty of the Russian Federation establishes other rules than those envisaged by law, the rules of the international agreement shall be applied.
254.
Article 55 of the 1958 Constitution provides: “Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.” This domestic hierarchy was recognized by the Cour de cassation, in the judgment Jacques Vabre of 1975 and by the Conseil d’État, with the Nicolo judgment of 1989.
255.
Canada’s domestic implementing legislation sometimes explicitly provides that interpretation of legislation should be consistent with the relevant international agreement. See e.g., North American Free Trade Implementation Act, S.C. 1993, c. 44, s. 3.
256.
Monges, Amalia c. Universidad de Buenos Aires, Fallos: 319:3148, Supreme Court of Argentina.
257.
Art, 95 sec 1, adds that “The Judge is obliged to follow the Law and the Treaty while rendering judgment, which constitutes part of the legal order; he is entitled to analyze whether another legal enactment runs counter to the Law or such Treaty.
258.
In Decision of 31 October 1995 № 8 and Decision of 10 October № 5.
259.
Under the law on treaties, provisions of officially published international treaties of the Russian Federation which do not require municipal action to be applicable shall operate directly Part 3 Article 5 Federal Law of 15 July 1995 № 101-ФЗ on International Treaties of the Russian Federation.
260.
See L. Erades, “International Law and the Netherlands Legal Order”, in International Law in the Netherlands, ed. H.F. van Panhuys et al. (Alphen a.d. Rijn etc. 1980), 3: 388.
261.
District Court of Rotterdam 8 January 1979 NJ 1979,113 (Stichting Reinwater et al. MDPA) where the court considered: “this law [i.e. the law prevailing in the Netherlands] includes the unwritten rules of international law; Dutch courts are not only empowered, but even obliged to apply unwritten international law where appropriate”, NYIL XI (1980), 329.
262.
So Governmental note op.cit. (supra note 1), 5.
263.
This was the case in the Barber judgment of the Court of Justice (CoJ) Court of Justice E.C., Case of 17 May 1990 C—262/88 (Barber); it was followed by a ‘view’ of the UN Committee on Human Rights in a case concerning the Netherlands. View of 26 July 1999 Communication nr. 768/1997 (Vos v. the Netherlands). The legal dispute revolved around the date as from which a distinction based on sex with regard to pensions was to be illegitimate. The Government endorsed the point of view of the EC CoJ and a similar judgment of the Centrale Raad van Beroep (Central Appeals Tribunal: Supreme Court in matters of social security, Decision of 26 November 1998, RSV 1999, 92) and reacted by stating that it was unable to share the ‘view’ “for compelling reasons of legal certainty”.
264.
National Report of Canada, pt. 1, 28–31.
265.
Ibid pp. 32–33.
266.
In Decision No. 73 of 23 March 2001, in obiter dictum, the Constitutional Court stated that “fundamental principles of constitutional order” and “inalienable rights of the human being” are a limit to the automatic incorporation of international customary law into the Italian legal order. In the Russel case (Decision No. 48 of 18 June 1979), the Constitutional Court deals with a potential conflict between customary international law and the fundamental principles of the Constitution but held that “the claimed contrast is only apparent and can be solved applying the lex specialis principle.
267.
See Constitutional Court, Judgements No. 15 of 29 January 1996, No. 73 of 22 March 2001. The Corte di Cassazione seems to share the same point, holding that “… Article 10, paragraph 1, of the Constitution affirms that the Italian legal order must conform to the generally recognised rules of international law […]. However, even those scholars maintaining that customary rules incorporated by means of Article 10 enjoy a constitutional status […] recognise that they must respect the basic principles of our legal order, which cannot be derogated from or modified. Fundamental human rights are among the constitutional principles which cannot be derogated from by generally recognised rules of international law.” See Corte di Cassazione, Milde, Judgment No. 1072 of 2009.
268.
Constitutional Chamber of the Supreme Court of Justice, decisions of July 15, 2003, Rafael Chavero case; October 17, 2008, Article 258 of the Constitution case; December 18, 2008, Corte Primera de lo Contencioso case; and February 11, 2009, Articles 1 and 151 of the Constitution case.
269.
Constitutional Chamber of the Supreme Court of Justice, decision of July 15, 2003, Rafael Chavero case.

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Shelton, D. (2012). International Law in Domestic Systems. In: Brown, K., Snyder, D. (eds) General Reports of the XVIIIth Congress of the International Academy of Comparative Law/Rapports Généraux du XVIIIème Congrès de l’Académie Internationale de Droit Comparé. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2354-2_21

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