Adaptation and implementation of international treaties in the Afghanistan legal system

Document Type : Original Article

Authors

1 Licturer of department of international law

2 PhD Candidate, Faculty of Law, Shahid Beheshti University, Tehran, Iran. Corressponding Author Email: faz_ahmadi@sbu.ac.ir

10.52547/jlr.2023.226704.2160

Abstract

The existence of treaty relations between states is one of the requirements of the international community. As a result, governments willingly or unwillingly accede to a large number of international treaties, which bring with them challenges and benefits. Accession to treaties is easy, but the implementation of treaties in accordance with international environmental requirements and without conflict with domestic law is problematic. Governments are required to consider mechanisms in their legal system to ensure that treaties, like domestic law of each state, are implemented in all governmental and non-governmental institutions. Afghanistan has acceded to many international treaties and has enshrined mechanisms for the implementation of treaties in the constitution and common law. despite the envisaged mechanisms, it shows that Afghanistan is moving in the direction of international life and has formulated all the executive solutions of international treaties in its legal system; In practice, the provisions of these treaties are not properly implemented and the domestic courts do not invoke the provisions of the treaties, violating the provisions of the treaties. The present study, using analytical-descriptive method, seeks to solve the problem of violating treaties and their non-implementation and to explain the reasonable ways of implementing the treaties in the Afghan legal system. The findings indicate that the Afghan legal system has a normative problem because the place of treaties in this legal system is not specified, also the problem lies in how to accept and implement the rules and conflict of contractual obligations with the principles of domestic law.

Keywords

Main Subjects

References

  1.  

References

Books

  1. Akehurst, Michael, A Introduction to International Law, sixt edition, published by Academic Division of Unwin Hyman ltd, London, 1987.
  2. Aust, Anthony, MODERN TREATY LAW AND PRACTICE, Published in the United States of America by Cambridge University Press, New York, 2007.
  3. Boas, Gideon, Public International Law Contemporary Principles and Perspectives, Published by Edward Elgar Publishing Limited, The Lypiatts,15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK, 2012.
  4. Brownlie, Ian, Principles of Public International Law, published in the United States by Oxford University Press Inc, New York, Fifth edition, 1898.
  5. Collection of interpretations, theories and legal advices, Independent Commission for Monitoring the Implementation of the Constitution, 1st edition, Azadi Press, 2013. (In Persian)
  6. Danesh, Sarwar, Basic Rights of Afghanistan, 1st edition, Kabul: Publications of Ibn Sina Institute of Higher Education, 2019. (In Persian)
  7. Ebrahim Gol, Alireza, The international responsibility of the state: text and description of the materials of the International Law Commission, (Tranlated), 3rd edition, Tehran: Shahr Danesh Institute of Legal Studies and Research, 2019. (In Persian)
  8. Falsafi, Hedayatullah, International Law of Treaties, 3rd edition, Tehran: Farhang Nashr-e-Now 2011. (In Persian)
  9. Kolb, Robert, The Law of Treaties An Introduction, Published by Edward Elgar Publishing Limited, The Lypiatts, 15 Lansdown Road, Cheltenham, Glos GL50 2JA, UK, 2016.
  10. Koliyar, Claude Albert, Institutions of International Relations, Vol. 1, Translation and Research: Hedayat Allah Philosophical, 1st Edition, Tehran: Nashr-e-Now, 1989. (In Persian)
  11. Leigh, Monroe, NATIONAL TREATY LAW AND PRACTICE, the American Society of International Law, Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff, Publishers and VSP, 2005.
  12. Mouszadeh, Reza, Laws of International Treaties, 4th edition, Tehran: Mizan, 2019. (In Persian)
  13. Villiger, Mark E. Commentary on the 1969 Vienna Convention on the Law of Treaties, Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands.
  14. Wallace and Ortega, Rebecca M. M. and Olga Martin, International Law, translated by Seyed Qasim Zamani and Mahnaz Bahram Lo, 4th edition, Tehran: Shahr Danesh Institute of Legal Studies and Research, 2012. (In Persian)
  15. Ziyai Begdali, Mohammad Reza, Laws of International Treaties, 4th edition, Tehran: Ganj-e- Danesh Publication, 2018. (In Persian)

Articles

  1. Bagheri, Mohammad Javad Sharif, "The superiority of international treaties over normal laws", Journal of Legal Research, No. 56, 2012. (In Persian)
  2. Falsafi, Hedayatullah, "Implementation of International Law Regulations", Journal of Legal Research, No. 13 & 14, 1994. (In Persian)
  3. Izadi, Ali, "A Comparative Look at the Implementation of International Law in National Courts", Public Law Studies Quarterly, Volume 45, Number 3, 2014. (In Persian)
  4. Odhiambo, Leah Aluoch, APPLICATION OF THE LEGAL DOCTRINE OF PACTA SUNT SERVANDA ON KENYA’S INTERNATIONAL RELATIONS, THE UNIVERSITY OF NAIROBI, NOVERMBER, 2016.
  5. Sloss, David," Domestic Application of Treaties", 2011, available at: http://digitalcommons.law.scu.edu/facpubs.

Thesis

  1. Faiz Elahi, Hamid, "The role and duties of the three forces in guaranteeing and implementing international treaties", Master's thesis, Tehran: Shahid Beheshti University, 2018. (In Persian)

Laws

  1. The basic principles of the Democratic Republic of Afghanistan, approved on April 25, 1980.
  2. The Constitution of the Islamic Republic of Afghanistan, approved on January 14, 2003.
  3. The first constitution of the period of Dr. Najibullah's rule, approved on November 9, 1987.
  4. The Law of International Treaties and Covenants, published on 18 Aqrab/Aban 1395 A.H., in the official gazette number 1236, Ministry of Justice of the Islamic Republic of Afghanistan.
  5. The Law of the Independent Commission for Monitoring the Implementation of the Constitution, published on 15 May/August 1388 A.H., in No. 986 of the Official Journal, Ministry of Justice of the Islamic Republic of Afghanistan.
  6. The law on the establishment and jurisdiction of the judiciary of the Islamic Republic of Afghanistan, published on 9 May/August H.H., under number 1109 of the official gazette, Ministry of Justice of the Islamic Republic of Afghanistan.
  7. The law on the procedures for the publication and enforcement of legal citations, published on 16 Mizan/ Shahrivar, 2017 H.H. With the serial number (1313) of the official gazette of the Ministry of Justice of the Islamic Republic of Afghanistan.
  8. The Second Constitution of Dr. Najibullah's government period, approved on 8 Joza/ June 1990.

Files

History

  • Receive Date: 16 April 2022
  • Revise Date: 01 September 2024
  • Accept Date: 20 May 2023

Share

How to cite

Statistics