The Legal Effects of Treaties in Domestic Legal Orders

and the Role of Domestic Courts

by Mario Mendez

1. Core precept of the law of treaties –Pacta Sunt Servanda

a. Art 26 of VCLT - “Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.”
i. Basic precept of international law - States are free to determine how they meet their
international obligations.

2. General Rule: Treaties do not impose specific requirements as to how the substantive
obligations that they lay out should be realized in the domestic legal orders of the Contracting
Parties.
a. International law ​leaves it to the domestic legal order to determine how it gives effect to
its treaty obligations in the domestic legal arena

3. There is ​no general obligation under general international treaty law, customary international
law, or general principles of international law requiring States to open their courts for invocation
of treaty norms by individuals.

4. HOWEVER, a State cannot invoke its internal law as justification for a failure to perform.

5. A treaty can require that it may be directly applicable in domestic courts.

a. Whether a particular treaty could indeed be relied on by individuals in a domestic court
has been addressed by the Permanent Court of International Justice in the Danzig
Advisory Opinion.
“According to a well-established principle of international law, an international
agreement cannot create direct rights and obligations for private individuals.

i. However, it cannot be disputed that the very object of an international agreement,

according to the intention of the contracting parties, ​may be the adoption by the parties of
some definite rules creating individual rights and obligations and enforceable by the
national courts.
ii. Advisory Opinion has been considered as authority for the proposition that ​States can
conclude treaties containing undertakings as to their domestic application and that they
will be under an international obligation to ensure that the ​treaty is enforceable in the
domestic courts.
iii. This can be so even absent an express undertaking to that effect, providing it can be
deduced from the ​intention of the parties as evidenced by the content of the agreement.
6. In 1976, the European Court of Human Rights (ECHR) held that there is ​no obligation to
incorporate the ECHR into domestic law and that Article 13* does not go as far as to guarantee a
remedy allowing a contracting State’s laws to be challenged before a national authority on the
ground of being contrary to the ECHR.

7. In 2004, the ​HRC affirmed that the ​Covenant does not require that it be directly applicable in
the courts​, by incorporation of the Covenant into national law.

8. ​Principle of Direct Effect - the Court looking to the spirit, general scheme, and the wording
of the provisions to determine ​whether an individual could lay claim to individual rights which
the national courts must protect​.
a. Criteria: the relevant provision must be clear, unconditional, and not require any further
implementing measures. (clarity, precision, unconditionality)
b. Types of DE:
i. Narrow Direct Effect – capacity of a provision to confer individual rights
enforceable before national courts
ii. Broad Direct Effect – capacity of a provision to be invoked before a national
court.

9. Types of Direct Legal Effects:

a. Direct use of a treaty provision by a domestic court to confer rights on an individual
b. Direct use of a treaty provision—even where the provision itself may not confer
individual rights—such that it is applied in lieu of inconsistent domestic rules
c. Direct use of a treaty provision to review and potentially set aside incompatible domestic
rules
10. Criteria used in determining whether a treaty or treaty provision is directly effective
not:
i. ​Subjective Nature - intent of the parties. Courts are variously said to be
looking for the intention that the ​treaty ‘confer subjective rights or impose
obligations on individuals’​,or that it creates ‘​private rights​’ or ​‘judicially
enforceable private rights’​ or ​‘private rights of action’ ​or a ​‘cause of action’.
ii. ​Objective Nature - concerned with requiring that the treaty or treaty
provisions are clear and precise and do not require further implementing measures

11. ​Principle of Supremacy - domestic courts should give ​international law primacy in the
domestic legal arena​ and that this requirement flowed from the very nature of Community law.

12. ​Automatic Treaty Incorporation - operates to ensure that treaties, or certain defined
categories of treaty, become automatically incorporated into the domestic legal order.
a. ‘incorporation’​– treaty is considered to become a binding part of domestic law.
 b. ‘automatic’ – is intended to capture the fact that this aforementioned status is usually
acquired upon the entry into force of the treaty for the relevant State.

13. The ​automatic status can be subject to ​the requisite domestic constitutional procedures for
expressing consent to be bound to a treaty having been satisfied, and/or that the treaty has been
published, or alternatively certain ​legal effects of a treaty in the judicial arena can only be
produced where these requirements have been satisfied.
a. The relevant domestic constitutional procedures can include:
i. constitutionally enshrined,
ii. judicially mandated,
iii. requirement that parliamentary consent be given to at least certain treaties,
iv. Note: and this consent may or may not need to be given in the form of a
legislative measure.

14. For a treaty to be employed by a court in a capacity other than as an interpretative aid, there
will usually be a threshold test that needs to be satisfied.

15. A treaty or treaty provision may be directly effective, domestically applicable, directly
applicable, or self-executing.

16. ​Doctrine of Consistent Interpretation or Principle of “Indirect Effect” - treaty’s capacity

to have a potentially crucial legal impact in the domestic legal arena.

17. ​Non-automatic Treaty Incorporation ​- an approach to treaties whereby they do not

automatically become part of the domestic legal order upon entry into force for the State
concerned.
a. They are viewed as only becoming part of the domestic legal order where:
i. the legislature so provides,
ii. and although on occasion the legislature does so provide, this takes place in
principle in an ad hoc fashion.

Dualism v. Monism
Municipal Law International Law

Dualist or Pluralist As Product of local Treaties and custom grown among

Theory to custom or of states
*when international source legislation
and municipal law
are in conflict,
Municipal law must As to relations Regulates relations Regulates relations between states
prevail they regulate between individual
persons under the
state

As to their Law of sovereign Law between sovereign states

substance over individuals

Monism or Two theories:

Monistic Theory
A. Municipal law subsumes and is superior to international law
​*International and
B. International law is superior to Domestic Law (supported by Kelsen)
Municipal laws
(Bernas)
belong to only one
system of law

18. ​Dualism – ​The dualist school is thus able to accept the ​supremacy of international law, at the
international level​, while ​maintaining the supremacy of domestic law, at the domestic level​. The
domestic legal order will determine the legal effects that international law has in the domestic
legal order.
a. international law and domestic law are distinct legal orders that operate in discrete
spheres and regulate different relations:
i. international law ​regulates the behavior of, and relations between, sovereign
States.
ii. domestic law regulates the relations of individuals both inter se and in their
relationship to the State.

19. ​On Dualism​, Being distinct legal orders, it followed that the conditions for the ​validity and
duration of international rules depend exclusively ​on international law and those for domestic
law depend exclusively on domestic law

20. ​Monism - ​premised on the unity of the international and domestic legal orders; they are part
of one and the same legal order. Implying, the supremacy of international law. That is to say, that
international law sits at the apex of this hierarchy. Treaties must have a hierarchically superior
status to ordinary law
a. Lauterpacht - the individual as ‘the ultimate unit of all law and the supremacy of
international law being asserted based on its capacity to protect the individual.
21. ​Doctrine of Transformation (Dualism) - ​the treaty was transformed into national law such
that it applied as national law and not international law.
a. It must be expressly and specifically transformed into domestic law through ​the
appropriate constitutional machinery such as an act of Congress or Parliament​. (Bernas)
b. Treaties do not become part of the law of a state unless it is ​consented to by the state
(Bernas)
c. Philippines adheres to the dualist theory and at the same time adopts the incorporation
theory and thereby makes international law part of domestic law
d. International law can be used by Philippine courts to settle domestic disputes
i. Art. 2, Sec. 2 of the Constitution: ​only customary law and treaties which have
become part of customary law become part of Philippine law by ​incorporation

22. ​Doctrine of Adoption or Incorporation (Monism) ​- treaty will retain its character as
international law

23. Role of domestic courts:

a. promote compliance with treaty norms
b. police compliance with treaty obligations

24. ​Full Domestic Judicial Enforcement Model - Starts from the premise that there is not
enough enforcement of treaty law and that domestic courts and domestic litigants should be
co-opted into securing maximum treaty enforcement.
a. Domestic courts are viewed as ​providing the judicial and coercive enforcement
procedures that are found wanting at the international level with judges being encouraged
to use all means to ​ensure compliance with international law