Incorporation (international law)

In international law incorporation is the process by which countries who are parties to international agreements pass domestic legislation that gives these agreements force under their respective national laws. [cite web |url=http://foreignaffairs.gov.ie/home/index.aspx?id=351 |title=Irish Treaty Practice |publisher=Irish Department for Foreign Affairs |accessdate=2008-09-03 See section entitled: Incorporation of International Agreements into Irish Law] cite web |title=EU Law: Glossary |publisher=Oxford University Press |url=http://www.oup.com/uk/orc/bin/9780199279593/01student/glossary/glossary.htm#D|quote=When a dualist state signs a treaty, the treaty becomes binding only if it is incorporated by a domestic statute. |accessdate=2008-09-03] Whether incorporation is necessary depends on a country's domestic law. Some countries follow a monist system where treaties can become law without incorporation, if their provisions are considered sufficiently self-explanatory. [cite book |title=Modern Treaty Law and Practice |author=Anthony Aust |publisher=Cambridge University Press |page=147] In contrast dualist countries require all treaties to be incorporated before they can have any domestic legal effects. Most countries, however follow a treaty ratification method somewhere between these two extremes. [cite web |url=http://classes.lls.edu/fall2006/intlhumanrgts-romano/documents/AquickABCofinternationallaw.ppt |title=A quick ABC of international law |first=Cesare |last=Romano |date=23 August 2006 |accessdate=2008-09-04]

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 is an example of a monist system. Under French law ratified treaties are considered to be equivalent or even superior to domestic legislation.Art. 55, " [http://www.assemblee-nationale.fr/english/8ab.asp#TITLE%20VI French Constitution of 4 October 1958.] "] However ratification must often be approved by the Parliament, especially in cases where the treaty "modifies provisions which are matters for statute".Art. 52, " [http://www.assemblee-nationale.fr/english/8ab.asp#TITLE%20VI French Constitution of 4 October 1958.] "] In such cases, incorporation is often either redundant or very little is required.

While Dualist systems like the United Kingdom, typically also require parliamentary approval before a treaty can be ratified, this in of itself does not give the treaty domestic legal force. For that to happen a separate act of parliament needs to be enacted incorporating the treaty into domestic law.

The dualist position is exemplified by the United Kingdom, where treaty-making are considered to be the exclusive competence of 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 considers 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). [http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf "Treaties and other International Agreements: the Role of the United States Senate"] (Congressional Research Service 2001).] 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 incorporation into U.S. federal law by Congress to have effect.

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