Transposition (law)
Encyclopedia
The incorporation of international law is the process by international agreements
become part of the municipal law
of a sovereign state
. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system.
Whether incorporation is necessary depends on a country's domestic law. Some states follow a monist system where treaties can become law without incorporation, if their provisions are considered sufficiently self-explanatory. In contrast dualist states require all treaties to be incorporated before they can have any domestic legal effects. Most countries follow a treaty ratification method somewhere between these two extremes.
France
is an example of a monist system. Under French law ratified treaties are considered to be equivalent or even superior to domestic legislation. However ratification must often be approved by the Parliament
, especially in cases where the treaty "modifies provisions which are matters for statute". In such cases, incorporation is often either redundant or very little is required.
The dualist position is exemplified by the United Kingdom
, where treaty-making are considered to be the exclusive competence of "Her Majesty's Government" (the executive). Hence all treaties must be incorporated if they are to have any effect on domestic legislation. To do otherwise would violate the doctrine of the sovereignty of Parliament which reserves legislative primacy to the British parliament. However treaties may have interpretative
value, where a judge does consider that Parliament (in the absence of clear contrary intention) did not intend that an Act conflict with a ratified treaty.
The position of the United States
is intermediate to the two extremes described above. The Supremacy Clause
(VI.2) of the United States Constitution
states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land." However, the term "treaty" has a more restricted sense in United States Law than in international law. Of the more than 16,000 international agreements entered into by the United States between 1946 and 1999, only 912 were ratified by the required two-thirds of the Senate
under Article II.2.2 (the "Treaty Clause
") of the Constitution ("treaties" under U.S. law). The Supreme Court
has also limited the direct effect of ratified treaties, notably in the case of Medellín v. Texas
(2008). Hence, almost all treaties must be incorporated into U.S. federal law by Congress
to have effect.
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
become part of the municipal law
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
of a sovereign state
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in the national legal system.
Whether incorporation is necessary depends on a country's domestic law. Some states follow a monist system where treaties can become law without incorporation, if their provisions are considered sufficiently self-explanatory. In contrast dualist states require all treaties to be incorporated before they can have any domestic legal effects. Most countries follow a treaty ratification method somewhere between these two extremes.
Monist v. dualist systems
In monist systems like the Netherlands, treaties can normally only be ratified only after they are approved by the legislature, but once this is done the treaties become legally binding in domestic law if they are self-executing.France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
is an example of a monist system. Under French law ratified treaties are considered to be equivalent or even superior to domestic legislation. However ratification must often be approved by the Parliament
Parliament of France
The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly . Each assembly conducts legislative sessions at a separate location in Paris: the Palais du Luxembourg for the Senate, the Palais Bourbon for the National Assembly.Each...
, especially in cases where the treaty "modifies provisions which are matters for statute". In such cases, incorporation is often either redundant or very little is required.
The dualist position is exemplified by the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, where treaty-making are considered to be the exclusive competence of "Her Majesty's Government" (the executive). Hence all treaties must be incorporated if they are to have any effect on domestic legislation. To do otherwise would violate the doctrine of the sovereignty of Parliament which reserves legislative primacy to the British parliament. However treaties may have interpretative
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
value, where a judge does consider that Parliament (in the absence of clear contrary intention) did not intend that an Act conflict with a ratified treaty.
The position of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is intermediate to the two extremes described above. The Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
(VI.2) of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land." However, the term "treaty" has a more restricted sense in United States Law than in international law. Of the more than 16,000 international agreements entered into by the United States between 1946 and 1999, only 912 were ratified by the required two-thirds of the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
under Article II.2.2 (the "Treaty Clause
Treaty Clause
Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which become treaties between the United States and other...
") of the Constitution ("treaties" under U.S. law). The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has also limited the direct effect of ratified treaties, notably in the case of Medellín v. Texas
Medellín v. Texas
Medellín v. Texas, 552 U.S. 491 is a United States Supreme Court decision which held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing";...
(2008). Hence, almost all treaties must be incorporated into U.S. federal law by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to have effect.