CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ DIRECT EFFECT OF INTERNATIONAL TREATY PROVISIONS IN THE EU LEGAL ORDER … a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals.” 9 The Court of Justice has clearly established in numerous judgments that the national courts of the member states are obliged to protect the rights of individuals arising from EU law. 10 The direct effect of a provision of an international treaty is not a novelty introduced by European Union law. This concept developed in the United States under the term “self executing treaties,” when the Supreme Court first recognized this dichotomy in 1829 in the landmark decision in Foster v. Neilson . The decision established a foundational basis for granting direct effect. It states: “Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself, without the aid of any legislative provision.” Equivalence with a legislative act is admitted only if it is a legally perfect provision that operates independently without the aid of any legislative provision. 11 The recognition of the self-executing character of a provision of an international treaty leans towards a monistic conception of the relationship between international and national law, eliminating the necessity of reception of the provision into domestic legislation. Subsequent case law in the well-known Medellín case has added that a treaty may be considered self executing when the textual provisions indicate that the contracting parties intended for the agreement to have domestic effect. 12 Other attributes to be taken into account are that the provision in question is sufficiently precise or binding to be judicially enforceable. 13 For a treaty provision to be directly applicable with a self-executing character, there must be an intention of the parties to that effect, or at least no intention to the contrary. In practice, it is the judicial and other authorities of the contracting parties who may express an intention to grant this character to the treaty provision or to exclude it, unless it is already explicitly stated in the treaty. Additionally, the granting of direct effect to a specific provision is only possible where the provision in question contains a specific and unambiguous right or obligation that can be invoked by private individuals. 14 The purpose of granting direct effect to an international treaty, from the perspective of international law, is to protect individual rights vis-à-vis the forum state. However, it is important to note that an international treaty cannot be deemed to have direct effect in its entirety; only specific provisions that meet the criteria can be granted such effect. It should be emphasized that the absence of direct effect for a provision of an international treaty does 9 Judgment of the Court of 5 February 1963, Van Gend en Loos v. Administratie der Belastingen , C-26/62, EU:C:1963:1. 10 Judgment of the Court of 9 March 1978, Amministrazione delle finanze dello Stato/Simmenthal , C-106/77, EU:C:1978:49, para. 16. 11 Supreme Court of the United States, Foster & Elam v. Neilson , 27 U.S. 2 Pet. 253 253 (1829). 12 Supreme Court of the United States, Medellin v. Texas , 552 U.S. 491, 170 L. Ed. 2d 190, 128 S. Ct. 1346 (2008), para. 519. 13 US CONGRESS, no date. ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties . [online]. Available at: https://constitution.congress.gov/browse/essay/artII-S2-C2-1-4/ALDE_00012955/#ALDF_00016280 last accessed on 30 Jun 2024. 14 DRGONEC, J. Ústava Slovenskej republiky . [The Constitution of the Slovak Republic] . Bratislava: C.H.Beck, 2015. p. 334.

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