Certain international organizations, such as the European Union, legislate for their members. Additionally, treaties such as the TPP or NAFTA/USMCA are supranational legislation between two or more states. The nationalization of these global, foreign or international laws requires national implementing measures. Some political thinkers in the United States view these same principles as comprising a Federalist position with respect to the national government vis a vis the state and local governments.
The EU As An Example
The European Union requires that member states fully adhere with its policies. This impact is one of the stated reasons for the Brexit decision by the United Kingdom, as it is an express subrogation of national sovereignty. In the case of the EU, there is a process of transposition- the implementation of EU regulation at the national level. Because the EU and its courts are active in lawmaking, the process is continuous and complex.
The process of transposition requires that the EU policy, law or court finding be transposed into a national legislative instrument capable of effectively implementing the legal requirements of the EU text. While the principle of autonomy allows member states to choose the method by which this is achieved, the requirement remains that it must be achieved.
EU law has several principles or tests extending to all member states as well as the organization generally – including:
- Subsidiarity – the highest level of action is justifiable only when lower levels or regulation are inefficient to achieve the goal
- Regulatory – economy of approaches
- Legislative – economy of measures
- Proportionality – the level of regulation reflects the effect or aim to be achieved
- Adequacy – the means chosen for the purpose of transposition produces the required regulatory results
- Synergy – use a holistic approach to the law and legal system by promoting coherence within the national legal framework
- Adaptability – allows flexibility in the choice of the appropriate instrument to implement the law
The normative level of implementing measures is based on
- The extent of legislative intervention – repeal of existing conflicting laws, implementation of corresponding supporting laws, following a five pronged EU test for compliance. it may be a repeal and replace, delegated legislation, administrative implementation or other methods to ensure compliance.
- The type of EU instrument –
- The constituting treaties require inclusion in national constitutions or constitutional principles.
- Regulations do not generally require transposition, however they must be evaluated in light of existing national legislation, and any significant differences must be reconciled via alteration, substitution, reference or incorporation.
- Directives require full application in fact and law. In the absence of national regulation, or in the case of conflict, the directive requires full transposition.
- Decisions are transposed via delegated legislation or administrative acts
- Recommendations and Opinions require no transposition
- Judgments of EU Courts – binding on all member states and must be included in implementing measures
- The object of the implementing measure –
- National legal custom may dictate the type or form of legal regulation
- Minor transposition items may be included in secondary legislation or rulemaking
- Areas of increased significance will be addressed by primary legislation
- Technical drafting approaches are needed to ensure compliance and approach to make the regulation properly binding
Quality of Legislation – EU Rules
The EU defines legislative quality as quality of substance and quality of form. Substance refers to legislative policy and looks to tests of subsidiarity and proportionality, choice of instrument, duration, intensity of instrument, consistency, cost/benefit analysis and impact analysis. Quality of form concerns accessibility and transparency and dissemination.
EU drafting rules break into three categories:
- Substance- must be essential and effective means of achieving the aim of the law. Must be proportional to the aim to be achieved, and consistent with existing EU legislation. It must take into account transposition, translation, and the needs of the users.
- Process – the EU must respect the principle of subsidiarity and leave to member states to regulate those items best handled at the national level. the drafting process must be open and transparent. The process must be planned and coordinated. The planned legislation must be subject to cost analysis and already enacted laws must be monitored and evaluated.
- Technical – EU laws must be clear, unambiguous and simple. Plain language must be used.
National legislative measures must also follow these same principles in drafting their national implementing measures.
Implementing International Agreements and Treaties
treaties are agreements between two or more states. There is a need for the drafter of implementing legislation to evoke specific quality legislation from what are generally vague political statements. As opposed to MOU’s, treaties are ratified by the state and bear the weight of law. Their entry into force is governed by the treaty itself or under the Vienna Convention Article 24(2).
The Vienna Convention is the international law governing treaties. In the US, we have a dualistic approach, where a second step following ratification is required, and national implementing legislation accompanies the treaty. There are generally four methods of implementation:
- Parallel legislation implementing but not referring to the agreement
- Reference to the agreement via substantive provision
- Scheduling for information only
- Scheduling with force of law
The drafter must use the treaty as a set of drafting instructions, and determine how to best bring the desired policy into effect. The drafting team for the implementing regulation should include the negotiators, policy makers and legal/drafting teams.