International legal regulation is focused on the end result that the parties to international communication seek to achieve. The purpose of human rights treaties is to fully realise individual human rights and freedoms. Therefore, by becoming a party to a human rights convention, a State has not fulfilled the purpose of the relevant treaty, but has taken the first and undoubtedly significant step in achieving the real result. In this light, it is worth quoting the observation of Prof. Christoph H. Heyns and Prof. M. H. Haines: “There has been widespread ratification of the core UN human rights treaties, but ratification itself is largely a formal and, in some cases, empty gesture. The challenge now is to ensure that the promises contained in the treaties and confirmed by ratification are realised in the lives of ordinary people around the world.”[1]

Indeed, a legal norm itself is “only an expression of an abstract possibility and an obligation to the actual behaviour of subjects”[2], the life of which in a wide sense is seen, firstly, in its establishment through the process of law-making and, secondly, in its implementation through the process of law enforcement [3]. In this case, in view of the meaning of international legal regulation, which consists in achieving the final result of the created international legal norm, it is the implementation of the legal norm that is of particular importance. 

The responsibility for the fulfilment in good faith of international legal norms rests with the State that has consented to be bound by the norm in question. In this respect, the fundamental legal principle of good faith in the realisation of undertaken obligations has a key role to play, including for the needs of international life, the personal interests of states and all participants in the relevant relations. The International Court of Justice of the United Nations in the case of nuclear tests (Austria v. France) authoritatively noted that “one of the basic principles governing the creation and fulfilment of legal obligations, regardless of their source, is the principle of good faith.” [4]

Before acquiring its legal character in classical Roman law, bona fides was understood as truthfulness to one’s words, reasonableness and honesty, symbolising tacitum in pectore numen, or the virtue of fidelity existing in the inner world of the individual. [5] The principle of good faith is particularly evident in international contract law under the cloak of pacta sunt servanda. The principle of pacta sunt servanda is frequently invoked by UN treaty bodies. For example, the HRC, in its General Comment No. 31, referred to the principle of pacta sunt servanda, noting its insistence that a party must refrain from attempting to evade its obligations for trivial reasons or technicalities of interpretation. [6]

The generally recognised principle of customary international law pacta sunt servanda is underlined by a fundamental instrument of international law, the Vienna Convention on the Law of Treaties, Article 26 of which establishes that “every treaty in force is binding on its parties and must be performed by them in good faith”. [7] It should be noted that Article 26 also emphasises another aspect: a treaty must be in force, and it is only after its entry into force the agreement produces legal consequences expressed in the binding effect of its provisions on the parties to the treaty in question.

An international legal norm realises its potential in the process of full transition from the international level to the national level, where the norm can achieve the final result sought by the participants of international communication. It is here the process of implementation demonstrates its significance. To achieve the true result that the international norm aims at, V.Y. Kalugin notes that it is necessary to have “a certain set of legal and organisational instruments used by the subjects of international law at the international and national levels in order to fulfil the prescriptions of the norms of international law”, which is “an optimal mechanism of implementation”. [8] Nevertheless, the optimality of this mechanism, its efficiency and its ability to respond to the demands of international cooperation represent a number of challenges to the full realisation of an international legal norm, that is, to the actual effect of the implementation process. 

The development of the doctrine of implementation was a challenging process. The very introduction of the term “implementation” was also a task. The term “implementation” (Latin – impletum) is literally interpreted as putting into effect according to a certain procedure. Before the introduction of the term “implementation”, other expressions such as “to give effect to the rights” or “undertakes to take steps” were used, and nowadays the notion of “implementation” is replaced by a number of other terms, which, depending on their own preferences, are chosen by legal scholars. An example of such replacement of the term “implementation” is the notion of “realisation” of a norm. 

The course of implementation itself is a multistructured process driven by diverse actors at two levels – international and national. [9] At the international level of implementation it is necessary to introduce “organisational and legal measures of an implementation nature”, including legal detailing and interpretation of the norms of international law, as well as the creation of intergovernmental bodies for the implication of international treaties [10]. The national level of implementation of international legal norms is the prerogative of the States parties themselves. This stage plays the most important role, especially given the specificity of human rights law, where the ultimate goal of human rights treaties – the full realisation of individual human rights and freedoms – takes place at the national level.  

The national implementation level is characterised by the interrelation of two elements, namely the legislative mechanism and the de facto implementation, which includes, inter alia, judicial activity. [11] The implementation mechanism itself, ensuring the transition of international norms into national legal systems, consists of a variety of measures. It is worth noting that the norms of international law in the scope of human rights and freedoms generally do not regulate the selection by States of means, methods and ways of their realisation: these issues fall within the exclusive competence of the State. [12] This means that States may invoke a wide variety of implementation measures, such as legislative, judicial, administrative, educational and other appropriate measures to fulfil their legal obligations. [13] In this regard, CESCR, in General Comment No. 9, stated that the International Covenant on Economic, Social and Cultural Rights offers a broad and flexible approach in implementing the provisions of the Covenant, taking into account “the specificity of the legal and administrative systems of each State, as well as other relevant considerations”. [14]

Among the actions taken are the enactment of specific norms and principles into legal regulations, legislative reforms to repeal contradictory laws, including at the constitutional level, and remedying cases where legislative measures have proved ineffective. In addition, States must make positive steps to ensure guaranteed rights and to promote the enjoyment of human rights, as well as to prevent violations and to protect in the event of violations. [15] Educational programmes and other awareness-raising measures are also necessary, including legal enlightenment of individuals about the rights granted to them under the treaties, as well as training in the spirit of human rights of lawyers and all professionals in the field of domestic law. Equally significant is the stage at which an international legal norm achieves a “social effect”, establishing a broad system of public authorities empowered to apply the norm itself, for example, in the process of judicial protection, thereby creating the required application of the norm at the national level.

It should be noted that the formation of a national implementation system is influenced by a number of factors, such as the level of focus of the domestic legal system on full cooperation with international law, based, inter alia, on the prevailing concept of the correlation between international and national law, as well as on the readiness of international legal norms themselves for their direct application in the national legal system. It seems possible to examine in more depth the approaches in the perspective of the correlation between international and national law.

The fundamental principle of sovereignty excludes any foreign authoritative instruction on how states should view the relationship between the national and international legal order. [16] The existence of such a principle has led to the development of different conceptions of the relation between international and national law in states, which is classically expressed in the existence of the theories of monism and dualism. The practical significance of understanding the concept prevailing in the legal system lies in the possibility to determine the openness of the national legal system to the direct effect of the provisions of international law, or, on the contrary, to identify the need to undertake a set of actions to introduce an international legal norm into the national legal system. [17]

The monist approach recognises the unity of international and national systems, considering them as parts of one legal framework. The monistic concept also allows the direct application of the norms of an international treaty, endowing these norms with the effect of direct action, i.e. legal force without the need for implementation by the legislative body of the national system. [18] In this case, the exception to the direct effect of an international legal norm may be the non-self-executing nature of the relevant norm, the concept of which will be discussed below. Another approach to the correlation between international and national law is recognised as dualistic. According to it, the rules of international and national law are in different normative fields, and the legal rules contained in the international instrument are not endowed by the State with the effect of direct application, having legal force only if the legislature implements them in the national legal system. [19]

Juristic literature emphasises that legal models are not fundamentally pure representatives of the conventions of monism and dualism. [20] As Lusius Wildhaber, former President of the European Court of Human Rights, notes, “just as there are different shades of black and white, there are different shades of monism and dualism.” [21] For instance, it is according to orthodox dualism that international law and national legal systems are distinct and separate categories of the legal order, while moderate dualism, in turn, allows that international law and domestic law may refer to each other. [22]

Meanwhile, from the perspective of the texts of international human rights instruments, it would be appropriate to enshrine obligations that are identical for all Member States, rather than to differentiate according to whether the systems are monist, dualist or other manifestations of these concepts. It is therefore right to point out that in relation to human rights treaties, monism and dualism are more blurred, as the international instrument gives direction on “universal implementation mechanism” aimed at obtaining a “social effect” from international norms. [23] This is accomplished through the enshrinement of what are known as general obligations of implementation. For example, the International Covenant on Economic, Social and Cultural Rights, in Article 2, refers to the need to ensure the full enjoyment of the rights recognised in the Covenant by using all necessary resources and by all appropriate means, including the adoption of legislative measures. [24] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also provides in Article 2 that all States Parties which have consented to be bound by the Convention shall take all necessary and effective “legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction”. [25]

Moreover, the doctrine of the relationship between international law and domestic law – monism/dualism – must itself take into account other concepts. Firstly, the well-established principle of pacta sunt servanda addressed above leads to the conclusion that even a dualist system should facilitate, at all levels of government, the implementation of the rules of the human rights treaty, and in particular should assist the courts in applying the rules of the instrument, i.e. in performing de facto implementation. Secondly, the doctrine of self-executability of international law plays an active role. This doctrine is aimed at identifying the conditions of “the emergence of the legal possibility of application of international law norms in specific situations, including in the judicial protection of human rights at the domestic level” without the need for organisational measures to implement international norms by the legislative bodies of the state party. [26] The non-self-executable nature of the provisions of an international treaty is often based on the substantive unsuitability of the rules themselves, expressed in their “generalisation, abstractness, lack of precision” [27]. However, the abstractness of the wording of a norm of an international treaty does not always establish the non-self-executable of this norm, and a detailed and specific provision of an international treaty cannot guarantee the absence of the need for implementation measures of a legislative nature. [28]

In some cases, the judiciary has taken the view that international obligations accepted by a State should be enforceable in national legal systems, regardless of whether formal incorporation has taken place. [29] Moreover, States cannot deny that human rights treaties are directed at regulating the protection of the rights of the individual. This invalidates the arguments of advocates of the concept of non-self-executability on the ground that the treaty is not intended for direct application by the courts. [30] In this regard, it seems necessary to refer to the cornerstone of human rights and freedoms – the Universal Declaration of Human Rights. Article 8 of the UDHR grants everyone the right “to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. [31] This provides a rationale for States to ensure that international human rights treaties are applied in national legal systems, in particular “if an individual considers that international standards offer him or her better protection than national law” [32]. 

To be concluded, good faith action to give effect to international legal norms is an obligation of a State that has become a party to a relevant treaty that has entered into force. In this respect, the process of implementation, which ensures the transposition of international norms into national legal systems, is essential. Human rights treaties allow wide latitude for States parties to determine measures to implement the relevant human rights instrument. The implementation mechanism may include a range of legislative, judicial, administrative, awarenessraising and other measures. This flexibility enables States to use the most effective means and take the most productive steps to fully realise the individual human rights and freedoms proclaimed by the relevant international human rights treaty.

[1] HEYNS, Christof H.; and VILJOEN, Frans. The Impact of the United Nations Human Rights Treaties on the Domestic Level. Human Rights Quarterly, vol. 23, No. 3, The Johns Hopkins University Press, 2001. P. 483.
[2] GAVERDOVSKY, A. S. Implementation of the norms of international law. Kyiv, Vishcha shkola, 1980. P. 47.
[3] ULYASHINA, L. V. International legal standards in the field of human rights and their implementation. Theory and practice. Vilnius, 2013. P. 155.
[4]  Nuclear Tests Case (Australia v. France), Judgrnent [1974] ICJ. Reports 1974. Para 46.
[5] UCARYILMAZ, Talya. The principle of good faith in public international law. Oxford Institute of European and Comparative Law, vol. 68/1, 2019. P.3.
[6] HRC, “General Comment No. 31 [80] — The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. CCPR/C/21/Rev.1/Add.13. Para.3.
[7] Vienna Convention on the Law of Treaties (on 23 May 1969) A/CONF.39/11/Add.2. Article 26.
[8] KALUGIN, Vitaly. The mechanism for implementing the norms of international humanitarian law at the domestic level. Belarusian Journal of International Law and International Relations, No. 1. [online]. 2000, [accessed: March 13, 2022]. Access via the Internet: http://evolutio.info/ru/journal-menu/2000-1/2000-1-kalugin
[9] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation. Theory and practice. Vilnius, 2013. P. 165.
[10] GAVERDOVSKY, A.S. Implementation of the norms of international law. Kyiv, Vishcha shkola, 1980. P. 72.
[11] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. P. 166.
[12] ZIMNENKO, Bogdan. On the place and significance of the practice of interstate bodies for the protection of human rights and freedoms in the legal system of the Russian Federation (based on the consideration of specific cases by the courts of the Russian Federation). In: Application of the provisions of the UN Convention on Human Rights in decisions of the courts of the Republic of Uzbekistan. Collection of materials from a practical seminar. Tashkent, 2020. P. 95.
[13] HRC, “General Comment No. 31 [80] — The nature of the general legal obligation imposed on States parties to the Covenant” (2004), UN Doc. CCPR/C/21/Rev.1/Add.13. P. 7.
[14] CESCR, “General Comment No. 9 – Domestic Application of the Covenant” (1998), E/C.12/1998/24. P. 1.
[15] ISTREFI, Remzije; and ISLAMI, Iliriana. Incorporation of international human rights into national legislation: The case of Kosovo. Journal for Labour and Social Affairs in Eastern Europe, vol. 20, No. 1, Future labour market challenges: digitalisation and Brexit, Nomos Verlagsgesellschaft mbH, 2017. P. 119.
[16] Ibid. P. 117.
[17] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. P. 167.
[18] TUGUSHI, Georgy. Brief overview of international standards for the administration of justice. In: Application of the provisions of the UN Convention on Human Rights in decisions of the courts of the Republic of Uzbekistan. Collection of materials from a practical seminar. Tashkent, 2020. P. 35.
[19] Ibid.
[20] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. P. 167.
[21] WILDHABER, Luzius. The European Convention on Human Rights and International Law. The International and Comparative Law Quarterly, Cambridge University Press, Vol. 56, No. 2, 2007. P. 219.
[22] RAKISHEVA, Aray. Theoretical concepts and features of interaction of international and national law of the Republic of Kazakhstan. Kazakhstan Institute of Human Rights, No. 3 (35), 2014. Page 214.
[23] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. Page 170.
[24] International Covenant on Economic, Social and Cultural Rights (entered into force on 3 January 1976), adopted by UN General Assembly Resolution 2200 A (XXI). Article 2 (1).
[25] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force on 26 June 1987), adopted by UN General Assembly Resolution 39/46. Article 2 (1).
[26] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. P. 236-237.
[27] BARBUK, A.V. The problem of determining the self-enforceability of international treaties. Moscow Journal of International Law, issue 4, 2005. P. 213.
[28] Ibid. P. 233.
[29] FREEMAN, A, Marsha; and CHINKIN, Christine; and RUDOLF, Beate. The UN Convention on the elimination of all forms of discrimination against woman: A commentary. Oxford University Press, 2012, 1st edition. P.17.
[30] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. Page 253.
[31] Universal Declaration of Human Rights (December 10, 1948), adopted by UN General Assembly resolution 217A (III). Article 8.
[32] ULYASHINA, L.V. International legal standards in the field of human rights and their implementation: theory and practice of application. Vilnius, 2013. Page 234.