Согласие государства на обязательность международного договора: на разломе международного и национального права

Международное правосудие. 2022. № 2 (42). С. 3–23.

Galperin M., Булатов Е. В.

The article addresses the question of the nature and degree of relevance of national law provisions
when a state expresses its consent to be bound by an international treaty. Although this problem goes back to the origins of constitutionalism, its relevance has been growing dynamically recently. In trying
to protect their sovereignty, states have been cautious about the conditions and procedures governing
the transfer of powers to the international level, especially in the most sensitive political, economic
and financial spheres. The basic constitutional principles of separation of powers and democracy are
expressed in the distribution of authority at the national level between various government bodies
when concluding international treaties, and also are expressed in certain cases in the direct engagement
of citizens. Article 46 of the Vienna Convention on the Law of Treaties attempts to strike a fair
balance between state sovereignty and the security of treaties. However, in practice this provision has
not been widely applied, for reasons including the restrictive interpretation. Providing extensive examples
of national legislation (including that of Russia), the article demonstrates that the principles of
public governance permeate the sphere of international relations of states and limit the sole authority
of the executive branch to express the consent to be bound by an international treaty. Given this, an
attempt has been made to prove that states, in their relations with one another, must take a higher
standard of diligence than that in restrictive interpretations of Article 46 of the Vienna Convention
when assessing the fulfillment by the other state of its requirements under domestic law for the expression
of consent to be bound by an international treaty.

Keywords: разделение властей, международный договор, государственный суверенитет