The Intersection of International Law and Domestic Law

The Intersection of International Law and Domestic Law

A Theoretical and Practical Analysis

Davíd T. Björgvinsson

What are the theoretical and practical issues relating to the intersection between domestic and international law? This important new book discusses how general theories, including monism and dualism, transpire in practice. The author examines several key areas: the rules relating to treaty making and the ratification of treatises, the doctrine of automatic incorporation and transformation, the direct effect of international norms in the domestic system, and a discussion of the principle of consistent interpretation. With a focus on the European Convention on Human Rights, the author concludes that, although traditional theories are still relevant, they fall short in grasping the complexity of the different ways in which the legislator and the courts have given effect to international law on the domestic level.

Chapter 3: The treaty-making process and ratification of treaties

Davíd T. Björgvinsson

Subjects: law - academic, public international law


Part II, Section 1 of the Vienna Convention on the Law of Treaties presents several important rules in relation to the conclusion of treaties. These rules primarily aim at ensuring efficiency and clarity in the treaty-making process at the international level. The Vienna Convention offers, however, few substantive rules on the exercise of treaty-making power. It is accepted that in reality the treaty-making process in each and every country is regulated by national constitutions and statutory law. In all the countries covered, treaty negotiations and the conclusion of treaties, in the meaning of signing them, is purely an executive matter. According to Article 52(1) of the French constitution of 1958, the executive (President of the Republic) is responsible for concluding international treaties. The president is formally also responsible for negotiating a treaty, as he appoints those officials who are responsible for carrying them out on his behalf. It should be noted that Article 52, para. 1, only refers to treaties. Article 20, para. 1, of the constitution has been interpreted as investing the government with power to conclude international agreements (accords internationaux) which do not need to be ratified under Article 52, para. 2, of the constitution (see below). These could be considered as more simplified forms of treaties that do not fall under Article 52. According to Article 20, para. 2, the president shall be informed about all negotiations which could lead to a conclusion of an agreement which does not require ratification.

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