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Introduction to Part II

In the previous part, we have identified the international legal sources from which a state obligation to adopt implementing legislation may originate. In order to complete our analysis of current international legal practice in rela- tion to implementing legislation, the following question must be answered: to what extent is domestic implementing legislation regulated by interna- tional law? The purpose of Part II is to provide an answer to that question.

In this regard ‘regulation’ is understood as comprising the standards of an international origin which should be observed by the national legis- lature which is engaged in the implementation of international law in the domestic legal order. In other words, it consists of prescribed features of domestic implementing legislation (encompassing both substantive and formal requirements) or legislative procedure. They will be referred to as ‘legislative standards’. They may include, for instance, a duty to punish violations of the legal provisions in force, or a duty to periodically evaluate domestic measures. Legislative standards complement the original obligation to adopt domestic implementing legislation with specific guidance on how that obligation must be performed.

The concept of legislative standards originates from the field of legis- prudence and is closely related to the notion of legislative quality. In this view, the quality of a domestic piece of implementing legislation depends on the measure of adherence to legislative standards: limited adherence leads to ‘poor’ quality and a large measure of adherence may result in ‘high’ quality. Of course, such legislative quality cannot be captured in quantita-

tive terms; it requires an assessment of a qualitative nature. The statement that adherence to legislative standards enhances the quality of any piece of (implementing) legislation raises the question on the legitimacy of their use in legislative practice: to what extent could this statement be underpinned with evidence? This question will be left aside for the moment, but will be revisited in Part III. At this point, it is important to place not too much emphasis on the notion of legislative quality; in the present part we seek to identify legislative standards pertaining to implementing legislation in general, irrespective of whether they can be said to enhance legislative quality.

The survey included in this part will focus on legislative standards that have been codified. They primarily consist of legislative standards of a legally binding nature, such as norms included (or read) in the applicable treaty. Often, however, legislative standards cannot be derived from the text of the treaty alone. In those cases, other sources will be resorted to, such as ‘legislative guides’, if available. The legal force of those documents may not be similar to the legal obligation to adopt implementing legislation, but they may contain legislative standards nonetheless. Although the distinction between mandatory and non-mandatory legislative standards is relevant to a certain extent, there does not seem to be a convincing argument why our inquiry should be limited to legislative standards of the former category. Furthermore, we seek to identify legislative standards that have been made part, through codification, of international law. This implies that domestic attitudes towards implementing legislation, which may consist of an elabo- rate legislative policy or other means, remains outside the scope of this part; they will be addressed in Part III.

It is often and rightly asserted that legislative standards do not exist under general international law; in this view, it is entirely left to states to determine the means and methods of implementation within their jurisdic- tions, as long as the choice of means and methods leads to conduct which is consistent with the relevant binding legal obligation. Cassese has pointed out that:

‘[a]part from the general rule barring States from adducing domestic legal problems for not complying with international law, and the treaty or customary rules […] that impose the obligation to enact implementing legislation, international law does not contain any regu- lation of implementation. It thus leaves each country complete freedom with regard to how it fulfils, nationally, its international obligations’.307

Therefore, in the present part the focus shifts from general international law to special international legal regimes in order to provide an answer to the question to what extent international standards pertaining to implementing legislation can be inferred from those regimes. They include human rights law, EU law, criminal law, health law, environmental law and labour law.

As will become clear, the regimes included in this part provide for several standards applicable to domestic implementing legislation.

For the sake of brevity, in this part only a limited number of interna- tional legal regimes will be discussed. As a result, of course, they do not perfectly coincide with current international practice in general. Neverthe- less, the selection presented below is intended to give a fair impression of the variety of ways in which implementing legislation is regulated under international law. To this end, it is important to explicate the grounds that have led to the inclusion of a particular regime in this part. They include, first and foremost, the diversity of subject matter that is covered by a particular regime; in other words, the regimes included in this part repre- sent a broad spectre of policy fields. Such a broad view is justified in order to avoid too much reliance on legislative standards that might be typical for a certain policy field. Second, it focuses on regimes that have a global scope, as opposed to regimes with a regional character which only address states of a certain region. Although there is no fundamental reason for the exclu- sion of regional regimes, the lack of space may be a sufficient justification for a more narrow scope. Therefore, in principle, the examination contained in this part is limited to legal regimes that are truly international in scope. The third consideration is an exception to the second. In contrast to the truly global legal regimes, two regimes of a European nature will be discussed below as well: the law of the ECHR and the law of the EU. This exception can be justified by the fact that the courts which have jurisdiction to solve legal disputes arising from these instruments, namely the ECtHR and the CJEU, have produced a vast amount of case law pertaining to implementing legislation, which has remained unrivalled by any other international court.308 _{The authoritative legislative standards that have been formulated}

by these courts are not only unique in quantitative terms, but are also highly relevant for the present study, as they provide insight into the way in which

courts have proceeded to assess domestic implementing legislation. In this regard, they differ from the other regimes included in this chapter, for which there are no international judicial decisions on their implementation. Fourth, the selection of international legal regimes that can be found in Part II is the product of a more practical consideration. A prerequisite for inclu- sion in the present part is the simple availability of legislative standards in the legal instrument itself or in the relating documents. In other words, international legal regimes that do not at least slightly indicate the way in which its norms should be implemented on the domestic level, have been left aside. This constitutes an important limitation on the conclusions which could be drawn from the present part’s findings: whereas they shed light on the substance of the legislative standards applicable to the instrument’s

308 Admittedly, the case law of the Inter-American Court of Human Rights might also be provide authoritative interpretations relating to domestic legislation through which international law (the American Convention on Human Rights) is implemented. Unfor- tunately, its case law is only partly accessible in English.

implementation, they do not provide insight into the number of interna- tional legal regimes which include such standards.

On the basis of the aforementioned considerations, the remainder of this part is dedicated to an overview of the regulation of implementing legisla- tion under selected international legal regimes.