Give answers to the following questions

1. Why are customary international rules treated as domestically binding?

2. What branch of power is to establish whether and to what extent a customary rule is binding within the legal system of a State?

3. What is the basic modality of customary rules implementation? What are the reasons for this choice of implementation?

4. What is the role of treaty-law?

5. How are rights of individuals intertwined with the discretionary power of States in treaty implementation?

TECHNIQUES OF IMPLEMENTATION

CUSTOMARY INTERNATIONAL LAW

National con­stitutions or statutes or judicial decisions of most States stipulate that customary international rules become domestically binding ipso facto, that is, by the mere fact of their evolving in the international community. As soon as they come into being in the world community international customary rules become binding within national legal systems. in addition they have, at the national level, the same content as that of the corresponding international rules.

The reason for the choice of this implementation system is self-evident: it is the only suitable one for rules that emerge gradually in the world community and whose content is not immediately definable. Were States to decide that a customary rule only becomes binding upon State officials and individuals after the enactment of a statute setting out the contents of such a rule, the parliamentary assembly would have to play a very difficult role, namely, to decide whether the customary rule has taken shape, and with what contents. Given the characteristics of customary law, it is far more fitting and practical to leave it to judges and other State officials to establish whether and to what extent a customary rule is binding within the legal system of a State.

Clearly, there may be customary rules that need to be supplemented by national legislation, in order for them to become operative at the domestic level. As an example of such non-self-executing customary rules, one may mention the rule pro­viding that the maximum outer limit of the territorial sea should be 12 sea miles. Plainly, it is for each State to decide on the width of its territorial sea, by enacting national legislation or regulation on the matter.

TREATY LAW

(a) Modalities of implementation

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

(b) Non-self-executing treaties

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

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

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

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

ipso facto – в связи с этим

a legal standing – правовой статус

to override – иметь преимущественное юридическое действие