Aust's Modern Treaty Law and Practice

This chapter examines how parties to treaties give effect to them in their domestic (internal) law. Every treaty in force is binding upon the parties and must be performed in good faith (pacta sunt servanda). A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. A state should therefore adopt any domestic legislation necessary to give effect to the treaty before it consents to be bound. There are two broad approaches to implementation of treaties, depending on a state’s constitutional provisions: monism and dualism. The essence of monism is that a treaty may, without legislation, become part of domestic law once it has been concluded and has entered into force for that state. The practice of France, Germany, The Netherlands, Russia, Poland and Switzerland is examined. Under the dualist approach, the rights and obligations created by treaties have no effect in domestic law unless legislation is in force to give effect to them. UK constitutional practice is examined, together with the interpretation and application of treaties by UK courts. US practice is similarly analysed.