Myths and Realities in ‘Self-Executing Treaties’

Abstract

There appears to be very few doctrines in contemporary international law that are in such a problematic state as the doctrine of self-executing treaties. It would appear that its usefulness is more in the debate it engenders than in its actual relevance to understanding the interface between international law and municipal legal systems. This is so because the term is variously applied to different circumstances and ascribed with varied meanings. One of the many meanings ascribed to self-executing treaties is that they are treaties that apply in the municipal realm on their own force, discoverable from the intent of the makers as expressed in the language of the treaty. This article queries that understanding and argues that, other than by municipal law, there is no mystical authority by which treaties are imposed on municipal legal systems and indeed municipal courts. We argue that any search for the authority of treaties in the municipal realm, ultimately leads to municipal law as the first point of focus.

Key terms

Self-executing, treaties, non-self-executing, constitution, municipal law, international law, monism, dualism.