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What is, however, crucial in practical terms to the legal effect of treaties in domestic legal orders, is not merely the constitutional provisions proclaiming treaties as part of domestic law or comparable domestic judicial pronouncements; but, rather, how courts actually deal with such treaties when they are raised in domestic litigation. Too often distinguished scholars have been willing to invoke constitutional provisions without drawing attention to the role that domestic courts have in making them reality, and whilst commendably some have emphasized the importance of assessing domestic judicial practice, studies actually providing the empirical work appear conspicuously absent. What is, therefore, needed is less face-value acceptance of generously phrased constitutional provisions and seminal judicial pronouncements as to the relationship between treaties and the domestic legal order, and greater empirical analysis of what actually takes place in judicial practice. This needs to be combined with greater focus on the normative justifications underpinning the role to be played by domestic courts in treaty enforcement. The suggested rejection of the monist and dualist labels is thus in no sense intended as a plea to avoid engaging with the important normative questions to which the relationship between international law and domestic law give rise. The suggestion is rather that this dated and loaded vocabulary can actually serve to obscure the issues at stake and can even be employed as a rhetorical device that contributes to closing off necessary debate on important constitutional choices. In particular, they can be used as labels to criticize particular judicial rulings on the relationship between treaties and domestic law. Dualism is increasingly employed in a pejorative fashion to criticize specific rulings. Thus, determinations that certain treaties or treaty provisions are not directly effective can be seen as a dualist stain for what is otherwise a monistic system. A judicial willingness to provide ex post constitutional review of treaties is a similar stain, as would be an unwillingness to allow constitutional values to be trumped by treaty commitments. Ultimately, one could always seek to castigate as dualistic any instances of apparent judicial unwillingness to cement the supremacy of treaty law in the domestic legal arena, at least in systems that in principle allow for automatic treaty incorporation. However, by dispensing with such labels we are likely to encourage a more balanced assessment of the issues at stake.

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However, there are problems with both the model that advocates sectoral enforcement and that which advocates the full domestic judicial enforcement of treaties. Perhaps, first and foremost, these approaches—which essentially envisage domestic courts as bringing to bear the enforcement arsenal found wanting at the international level for the policing of treaty obligations—fail to give due attention to the intent of State Parties. To the extent that they have not taken the opportunity to draft treaties with more potent mechanisms for ensuring compliance and, indeed, consciously avoid such mechanisms, it is imperative that we ask in what circumstances it is appropriate for domestic courts to give such treaty norms a harder legal status in the domestic legal arena. This criticism has greater purchase with respect to the full domestic judicial enforcement model because this question is simply not posed; it is taken for granted that domestic courts policing compliance with treaty obligations. But we need to ask whether this one-size-fits-all logic clashes with the flexibility sought by States when they conclude treaties with varying levels of enforcement potential, not least given that they are concluding treaties against a backdrop of what is not slavish domestic judicial enforcement of treaties regardless of what constitutional provisions on treaty reception might seem to suggest. One commentator has underscored that other than ‘parts of…human rights law and the protection of foreign nationals, states have generally had little interest in agreeing on empowerment of national courts in other areas of international law.’

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This non-automatic approach to treaty incorporation can have its basis in the common law; it can effectively be enshrined in a constitutional document; it can be considered to be presupposed by or be implicit in the Constitution even if not expressly stated; it can be enshrined in a parliamentary Act. The role of Parliament can vary considerably in such legal orders, ranging from legal orders where the basic rule is that treaties are concluded by the executive with parliamentary approval or authorization rarely needed, to those where certain categories of treaty require parliamentary approval, to there being a constitutional requirement for parliamentary approval or authorization that in practice encompasses most treaties.

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Where the Constitution itself is silent as to hierarchy, the issue is left to the courts. In some legal orders they have accorded treaties the same status as that of legislation, which can be of varying rank, authorizing approval or ratification of the treaty; in others, the treaty is accorded superior status to ordinary legislation even where it is later in time and can potentially, albeit this appears extremely rare, even be superior to the Constitution. Finally, it is important to note that some constitutional systems that automatically incorporate treaties nonetheless allow for challenges to the constitutional validity internally of ratified treaties.

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Judicial developments in the US are illuminating in this respect. Its Constitution contains the oldest known general treaty incorporation clause, and its Supreme Court is increasingly viewed as having moved from a presumption, particularly dominant pre-Second World War, in favour of domestic judicial enforceability of treaties at the behest of private parties to a recent presumption against such enforceability absent express legislative incorporation. One might view this reversal in presumption as bordering on an informal constitutional amendment. It is accordingly open to well-founded accusations of exhibiting disdain for the constitutional text. But one can also detect in this transformation in judicial stance a response, albeit not openly acknowledged, to broader concerns with the qualitative shift in the remit of treaty law and the perceived democratic shortcomings of the international law-making process. The US judicial reaction has been extreme and by giving inadequate consideration to countervailing considerations that seek to promote the rule of law in international affairs, it considerably jeopardizes US capacity to comply with its treaty commitments. However, similar concerns along with the proliferation in domestic litigation involving treaties, and the complexity and political sensitivity of the issues involved, have rightly left political actors and courts reluctant to see the few words in the constitutional text where they exist, to the effect that treaties are law of the land and potentially supreme law of the land to boot, or similar phrasing by superior courts, as always dictating specific outcomes in judicial proceedings. To pretend otherwise is largely to ignore considerable empirical evidence of domestic judicial practice to the contrary. Much of that domestic judicial practice may well be open to powerful and well-deserved critique (beyond any apparent tension with existing constitutional text). Nonetheless it must also be conceded that in a terrain that often pits the idealism of the international law scholar with the concerns of the domestic constitutional order, there can be legitimate grounds for political and judicial reticence to treating all treaties and their provisions as fully operative supreme domestic law notwithstanding sweepingly phrased constitutional provisions on treaty incorporation.

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Turning to the objective criteria, these are usually concerned with requiring that the treaty or treaty provisions are clear and precise and do not require further implementing measures. In one sense, this is part of a general test as to whether a treaty or specific provision is even capable of judicial application: there are treaties which have more of a programmatic nature and need fleshing out via legislative or administrative measures. And there is therefore some measure of analogy to be drawn with domestic norms whether of a legislative or constitutional status that will also not be judicially enforceable but will require further implementing measures to bring them into effect. It is essential, however, to recognize that despite the tendency to give these criteria the label of ‘objective’ they are, like the subjective criteria, inherently malleable and leave the judge great freedom for manoeuvre. What is clear and precise and does not require further implementing measures will not only vary from court to court but also, not least given different legal cultures, across legal orders. Thus, a treaty provision might be considered sufficiently precise in a legal order where the judiciary have broader interpretative powers but not so in a legal order where their powers are more circumscribed. Moreover, there may well be variation depending on how the particular area of law with which the treaty is concerned is regulated domestically, and thus as Buergenthal pointed out: