Status of International Law in the Estonian Legal System under the 1992 Constitution
| Author | Hannes Vallikivi |
| Pages | 222-232 |
Hannes Vallikivi
Status of International Law in the Estonian Legal System under the 1992 Constitution
The dispute between monists and dualists about the domestic status of international law has continued over a century and is still in progress. Today, the shield of sovereignty of states is still too strong for the states to unconditionally accept the rules of international law as a part of domestic law, especially so that the domestic legal acts in conflict with the rules of international law are repealed or at least repealable. However, no state is able to escape the recognition of the impact of international law on domestic law. Disregarding the assault of European Community law, the impact may be detected, above all, in the area of the protection of human rights. Also countries having a so-called dualist approach have transported the European Convention on Human Rights (ECHR) to their domestic law and courts apply this instrument directly1.
The jurists who are accustomed to a practical approach have therefore abandoned their legaltheoretical discussions and search for the differences and common ground between international and domestic law. They claim that these two legal systems do not overlap, except when the state decides to transpose the rules of international law into the sphere of domestic law2. If the state does not recognise the rules of international law as a part of domestic law and does not apply them, or if it recognises them but applies them incorrectly, the state bears international responsibility for the consequential breach of its international obligation entailed thereby.
Thus, the methods of transporting particular sources of international law to domestic law (adoption, incorporation, transformation) are brought into focus and the consequences of using one or another method are examined instead3. Strictly speaking, it is a dualist approach ? a state itself decides on the choice of the method and the implementation thereof. Nevertheless, some methods transport the rules of international law to domestic law more immediately than others and therefore they could be classified (though in a modified manner) as monist or dualist.
The purpose of this article is firstly to describe briefly the content of each method and the nuances of the impact of international law transported to domestic law thereby, and secondly to evaluate the position of international law arising from the applicable Constitution in the Estonian legal system.
Before describing each method, let us introduce the notion of the rule of recognition into discussion4. A rule of recognition is a written or unwritten rule in the order of the state due to which international law binding on the state becomes a part of its legal order. If the rule of recognition exists, the state may be deemed to be monist with regard to the sources of international law covered by the rule of recognition; if the rule does not exist, the approach of the state is dualist.
The following terms have been used in different meanings in literature to describe the methods of transporting international law to domestic law. In this article, the following meaning has been given to these methods.
Transformation is a method characteristic of the dualist approach as a result of which the rules of international law are transported to domestic law by means of a domestic transforming act. The transforming act need not be the enforcement act of a treaty. The transforming act may serve to amend, specify or supplement the wording of the treaty or any other written source of international law. The transformation method has been divided into general transformation and special transformation. In the latter case, each international law instrument (e.g. an agreement or a decision of an international organisation) is transported to domestic law separately; in the former case, all the rules of some source of international law (e.g. rules of general international law), including the rules to be to be created in the future, are deemed to have been transported to domestic law5. In special transformation, the transforming rule is contained in the transforming act.
As a result of adoption, the rules of some source of international law are, similarly to general transformation, automatically transported to the sphere of domestic law6. Adoption is a monist technique whereas the adopting rule serves as a rule of recognition. Adoption is, as a rule, applied to general international law the rules of which (with certain exceptions) are binding on the state irrespective of its consent.
Another monist method is incorporation which, unlike adoption, requires means and presumes an act on the part of the state, as a result of the performance of which the rules of the source of international law become a part of domestic law7. An enforcement act of a treaty is the best example. Unlike in special transformation, the incorporating rule (being the rule of recognition) and the incorporating act are usually separated from each other. The incorporating act that is, as a rule, the enforcement act of the treaty, transports the treaty to domestic law by virtue of an incorporating rule.
Monist approach differs from the dualist one mainly by the fact that international law remains the basis for the validity of the rule of international law transported to domestic law8. Therefore, in the case of monist approach, it is extremely important to examine the following: (a) changes in validity of the international law rule ? suspension of the treaty and expiry thereof, creation of a rule prevailing over the treaty or customary rule under the principle of lex superior, lex posterior or lex specialis; (b) changes in the content of the international law rule irrespective of whether they are approved by the state or not (the latter is possible for example in the case of a simplified procedure of amendment or upon the alteration of the general customary rule), and (c) restrictions on validity of such rules (above all, reservations to the treaties). All these changes occur in international and domestic law in synchrony. The domestic body implementing laws has to take account of the circumstances pertaining to international law. In the case of monist approach, the implementor also has to proceed from the international and legal interpretation of the applied rule of international law.
Dualists have claimed that their doctrine relieves most of these concerns experienced by the implementor (and also the subjects) of law ? the task of the executive power is to ensure (together with the legislator, if necessary) that domestic law is in compliance with the international obligations of the state. The implementors continue to apply the rules of international law until the transforming acts are valid and in the manner prescribed by the transforming acts. In order to interpret a rule of international law, easily available domestic sources of interpretation are used9.
Dualist approach appears simple and attractive at first glance only. If the basis of validity of a rule of international law is domestic, the asynchronous validity of the transformed rule or the domestic validity application thereof which ignores international interpretation may entail a violation of international law, or oblige the state to observe a rule that is no longer restricting its activities internationally. Hence, the proponents of mitigated dualism prefer the view that primary (regulating) rules of international law are transformed to domestic law together with the rules determining their validity and other secondary (ancillary) rules10. Thus, the domestic implementor of law is not exempted from the obligation to observe international and legal validity and interpretation of the transformed rule of international law and adhere thereto.
Consequently, the distinction between revised monism and dualism is largely dependent on what branch of power has the largest share in monitoring the validity of the rules of international law and the compliance of the rules of domestic law therewith and in clarification of the content of the rules of international law transported to domestic law: in monism the primary care rests with courts, in dualism ? with the executive. Perhaps the establishment and strengthening of judicial control over the activities of the administrative power (incl. state bodies responsible for international relations) has also contributed to the increase in the domestic impact of international law. Domestic judges and other implementors of law need thus be prepared to assess the validity of international law on the domestic level whereas the validity of the rule depends on the international validity thereof.
The rule of recognition may be worded as a rule determining the domestic validity or status of international law (Lithuania, France) and as a conflict of laws rule (Estonia) or a combination thereof (Germany, Russia)11. Problems arise in connection with identification of the rule of recognition. The pursuit of sovereignty of states is also evident in the fact that an obvious rule of recognition is not deemed to be one, and the transformation method is preferred. An...
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