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One of the dominant features of the 20th century jurisprudence has been the recognition of law as a tool of change. An important feature of an effective legal system is its capacity to reflect the changing needs and demands of a society in which it operates. Although legislation is not the only means of social control, it definitely is one of the most powerful vehicles of change and development. Continuous law making becomes a natural response of a developing legal system to new society problems and needs. Today, almost every area of national legislative concern is affected in one way or another by international treaty standards. While an international framework of rules and standards is important, one should not disregard the importance of national legislation, a fundamental link in the fulfilment of the international law making.
The international community lacks the constitutionally institutionalised machinery of law-making typical to domestic legal orders. Legal provisions on the international level are enacted in accordance with the Vienna Convention on the Law of Treaties. It codified customary rules related to treaties; hence, at large, the same body of rules apply to both Parties and non-parties to the Vienna Convention. But there are also a few provisions in the Convention that do not reflect customary rules of the law of treaties. A majority of States have ratified the convention. For States not Parties to the Vienna Convention, the legislative process is governed by customary international law. The Vienna Convention governs only treaties concluded between States.
The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations11 applies to treaties concluded between States and international organisations, or between international organisations. However, this Convention has not been accepted by the international community, as has the 1969 Vienna Convention.
Moreover, the Consultative Expert Meeting on Law and Disability Policies elaborated goals which are expected to assist interested countries better to plan, design and carry out practical action concerning persons with disabilities in at last three key areas:
An international treaty seldom stipulates how the States should implement its provisions because, in general, the Parties to a treaty are interested in ensuring only that its substantive obligations are complied with, leaving it to each State to decide how that obligation will be executed on the domestic plane.
One notable exception involves the right of access and to effective remedies guaranteed in human rights treaties. There is no rule of general international law that all treaties must have domestic law effects; many treaties have no domestic legal consequences and do not require implementation through the national legal systems of the Parties. International law leaves it to the States because of the fact that States are governed by different constitutional rules or employ different legal techniques to implement the obligations they have undertaken. The freedom to choose some methods of implementation is also guaranteed in the International Covenant on Civil and Political Rights, article 2: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant." However, article 14 and 50 guarantee a right of access to courts.
Two distinct manners in which States give domestic legal effect to their treaty obligations can be distinguished. In States adherent to the doctrine of monism, a treaty acquires the status of domestic law upon its ratification in the State concerned. In other States again, the dualist states, a treaty does not ipso facto enjoy the status of domestic law, but special legislative measures are needed for implementation. The most appropriate option differs for each country depending on structure of the relevant domestic legal system.
Four main methods are generally available for the implementation of international human rights instruments in domestic law:
International law recognises that States can conclude a treaty that requires the Contracting Parties to ensure that all or some of its provisions have the status of directly applicable domestic law and be enforceable as such by their national courts. Herefore, articles 14 and 50 are an example. If it does, the Parties are bound to follow the treaty requirement whatever their constitutional procedures for doing so. The aim of directly applicable provisions is to ensure that individuals can enforce rights and obligations laid down in treaty provisions in national courts. Direct applicability of treaties increases their importance and decreases the likelihood that national authorities will refuse or neglect to provide for transforming the treaty into domestic law.
For States that are not Parties to the relevant human rights treaties, generally accepted standards of human rights are legally binding upon them according to customary international law.
Article 8 of the Universal Declaration of Human Rights guarantees the customary right to an effective remedy.
In some systems, once the international obligations of a State have been given formal validity in the domestic legal system, the domestic courts are bound to apply them. In others, they are directly incorporable and courts are bound to identify, clarify and apply human rights law. The State has to ensure that any person whose rights have been violated has an effective remedy. The right to an effective remedy is also recognised in the International Covenant on Civil and Political Rights, article 2 (3), which stipulates that each State Party to the Covenant undertakes to ensure that any person whose rights have been violated shall have an effective remedy before a competent authority provided for by the legal system of the State. It is important that individuals can invoke their rights afforded to them by the State’s international obligations in national courts, because the international human rights norms may provide greater protection than national laws. An advantage of bringing matters to the courts is that the courts can bring attention to disability matters and in this way enhance legislative changes. This can also encourage different national actors to take up action on disability issues.
Still, some national courts hesitate in enforcing human rights norms. There might be various reasons behind this. One reason might be that national courts are unfamiliar with the relevant human right norms that obligates the country. Or perhaps the rights that the international norms afford individuals are considered to be too vague and abstract to enforce. The role of domestic courts is critical since, as a general rule, an exhaustion of domestic remedies is required before taking to international remedies when a violation of rights has occurred.
Legal provisions on the regional level are generally created according to the rules on treaty making in public international law as laid down in the Vienna Convention on the Law of Treaties. For those States who are not Parties to the Convention, the substantive rules embodied in the Convention may be applicable as part of customary law.
However, the European Union can be considered a sui generis. The Union has its own legislative organs, which create rules binding on all Member States. It can be considered to constitute a distinct legal system of its own which is an integral part of the legal systems of the Member States and which their courts are bound to apply. One of the basic differences between the legal system of the European Union and international law is that Member States of the Union have transferred to it certain of their sovereign rights and legislative powers.
11 Adopted in 1986, not yet entered into force
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