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International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?

Published online by Cambridge University Press:  27 February 2017

Eric Stein
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Extract

United States Secretary of State George Marshall told the General Assembly of the United Nations in 1948 that “[g]overnments which systematically disregarded the rights of their own people were not likely to respect the rights of other nations and other people, and were likely to seek their objectives by coercion and force in the international field.”

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 3 , July 1994 , pp. 427 - 450
Copyright
Copyright © American Society of International Law 1994

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References

1 UN GAOR, 3d Sess., 139th plen. mtg. at 36, 37 [UN Doc. A/PV.13–187] (1948).

2 Bruce Russett, Politics and Alternative Security: Toward a More Democratic, Therefore More Peaceful World, in Alternative Security: Living Without Nuclear Deterrence 107, 111 (Burns H. Weston ed., 1990). For empirical support of the above quotation, see Melvin Small & J. David Singer, Resort to Arms: International and Civil Wars, 1860–1980 (2d ed. 1982, updated to 1988), cited in id. at 109. But see Kenneth N. Waltz, The Emerging Structure of International Politics, 18 Int’l Security 44, 78 (1993).

For the above purpose, Russett defines “democratic state” in Robert Dahl’s terms as marked with “a voting franchise for a substantial fraction of male citizens (in the nineteenth and early twentieth centuries and wider thereafter), contested elections and an executive either popularly elected or responsible to an elected legislature.” Russett, supra, at 111–12.

3 Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46, 47 (1992). “A few” may well prove an understatement of the real situation.

4 Antonio Cassese, Modern Constitutions and International Law, 192 Recueil des Cours 331, 351 (1985 III). In this section I rely on this important series of lectures delivered at the Hague Academy of International Law.

5 Id. at 351.

6 U.S. Const. Art. VI, §2, Art. I, §8, cl. 10. See generally Louis Henkin, Foreign Affairs and the Constitution 17, 129–36, 156–67 (1972).

7 Grundgesetz Art. 25 (Ger.), translated in 6 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1991) [hereinafter Constitutions]; see also Const. (Italy) Art. 10, translated in 8 Constitutions (1987) [hereinafter Ital. Const.]; Jochen A. Frowein, Federal Republic of Germany, in 7 United Kingdom National Committee of Comparative Law, The Effect of Treaties in International Law 63, 67–69 (Francis G. Jacobs & Shelley Roberts eds., 1987) [hereinafter Effect of Treaties]; Giorgio Gaja, Italy, in id. at 87, 96–106; Jochen A. Frowein & Michael J. Hahn, The Participation of Parliament in the Treaty Process in the Federal Republic of Germany, 67 Chi.-Kent L. Rev. 361, 373–81 (1991); Helmut Steinberger, Allgemeine Regeln des Völkerrechts [General Principles of International Law], in 7 Handbuch des Staatsrechts der Bundesrepublik Deutschland 525 (Josef Isensee & Paul Kirchhof eds., 1992).

8 Cassese, supra note 4, at 356. Pierre Pescatore, Conclusion to Effect of Treaties, supra note 7, at 273, 280–81.

9 Constitución Arts. 7, 65 (Spain, 1931), translated in Manual of Spanish Constitutions, 1808–1931 (Arnold Verduin trans., 1941); Constitución Art. 96(1) (Spain, 1978), translated in 8 Constitutions, supra note 7 [hereinafter Span. Const.]. See also infra note 16. Only in the second half of the 19th century did the Supreme Court of the United States introduce the lex posterior rule to govern conflicts between a federal law and a treaty. See infra note 102.

10 Cassese, supra note 4, at 402, 403, 405; Constitution Art. 55 (Fr.), translated in 6 Constitutions (1988), supra note 7 [hereinafter Fr. Const.]. Some of the African states abandoned this pattern in later constitutions.

11 Cassese, supra note 4, at 409–11; Constitution Arts. 91(3), 94 (Neth.), as amended (1983), translated in 12 Constitutions (1990), supra note 7 [hereinafter Neth. Const.].

12 Cassese, supra note 4, at 362–63.

13 I do not deal with other provisions in the new constitutional documents that may be viewed as part of the “opening,” such as those concerning war and peace, armaments and sending troops abroad. In view of the limited purpose of this essay, I also do not propose to attempt a definition of Central-Eastern Europe. It is—considering the shifting geopolitical history of the area—“a concept with blurred edges.” We may ask with Wittgenstein whether it is always an advantage to replace an indistinct picture with a sharp one. At any rate, in addition to the Czech and Slovak Republics, I give fleeting consideration to ten other states in the ill-defined area. See text following note 66 infra.

14 For the Czech Republic, see, e.g., Defense Minister on the goal of entry into the European Community and NATO, A. Baudyš: Žádné nové blohy [No New Blocs], Lldové Noviny, Feb. 16,1993, at 1. For the Slovak Republic, see President Michal Kováč in Slovakia and the Partnership for Peace, NATO Rev., Feb. 1994, at 15.

I use the present appellation “European Union” except in the context antedating the conversion of the European Community into its present form.

A more or less intimate tie to the Union continues to be the only viable policy option for the Central European states, despite the intermittent complaints about the Union’s hesitant response to their current needs. It strikes me as curious—considering the limited range of their policy choices—to warn them against subjecting themselves “to technocratic political and legislative machinery in Brussels which is incompatible with their current aspirations for democratic governance and market freedom.” David Kennedy & David E. Webb, Integration: Eastern Europe and the European Economic Communities, 28 Colum. J. Transnat’l L. 633, 674 (1990). The “machinery in Brussels” is evidently compatible with some of the oldest established democracies.

On the current relationship, see Roger J. Goebel, The European Community and Eastern Europe: “Deepening” and “Widening” the Community Brand of Economic Federalism, 1 New Eur. L. Rev. 163 (1993); Heinz Kramer, The European Community’s Response to the “New Eastern Europe,” 31 J. Comm. Mkt. St. 231 (1993).

See also the following announcement:

The European Council [the summit of the members of the European Union] today agreed that the associated countries in Central and Eastern Europe that so desire shall become members of the European Union. Accession will take place as soon as an associated country is able to assume the obligations of membership by satisfying the economic and political conditions required.

Membership [in the Union] requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

European Council, Copenhagen (June 21–22, 1993), Europe Doc. 1844/45 (June 24, 1993).

15 See Eric Stein, Remarks, 85 ASIL Proc. 320 (1991). See generally John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 AJIL 310 (1992). A vast literature highlights the complexity of the subject. See, e.g., the bibliography in Cassese, supra note 4, at 474–75; Karl Josef Partsch, International Law and Municipal Law, in [Installment] 10 Encyclopedia of Public International Law 238, bibliography at 256–57 (Rudolf Bernhardt ed., 1987).

16 Neth. Const., supra note 11, Art. 94; Fr. Const., supra note 10, Art. 55 (courts may enforce treaty supremacy, see Conclusions de Patrick Frydman, 25 Revue Trimestrielle de droit européen 771 (1989) (on Decision of Oct. 20, 1989 (Nicolo), Conseil d’Etat)); Constitution Art. 28(1) (Greece), translated in 7 Constitutions (1988), supra note 7 [hereinafter Greek Const.]; Belgium, no constitutional provision, but see Judgment of May 27, 1971, Cass. (Le Ski), discussed in Frédéric Dumon, Les Rapports entre le droit constitutional et le droit international, in Le Nouveau Droit Constrrunonnel 205, 209 (1987); Luxembourg, no constitutional provision, but see Judgment of July 14, 1954, Cour supérieure de Justice (Chambre des Métiers c. Pagani), discussed in Pierre Pescatore, L‘application judiciaire des traités internationaux dans la Communauté européenne et dans ses Étatmembres, in Etudes de droit des Communautés Européennes, Mélanges offerts à Pierre-Henri Teitgen 355, 382–83 (1984); Spain, see Francisco S. Gadea & Santiago M. Lage, Spanish Accession to the European Communities, 1986 Common Mkt. L. Rev. 11, 15–27. See also Constitución Art. 101 (Peru), translated in 14 Constitutions (1989), supra note 7; Constitución Art. 7(1) (Costa Rica), as amended, translated in 4 Constitutions (1982), supra note 7. See further certain Francophone countries of Africa, supra note 10. Also Japan, Kenneth L. Port, The Japanese International Law “Revolution”: International Human Rights Law and Its Impact in Japan, 28 Stan. J. Int’l L. 139, 153 (1991).

The Court of Justice of the European Communities adopted the same rule with respect to treaties concluded by the Community with third states. Eric Stein, External Relations of the European Community: Structure and Process, in 1 Collected Courses of the Academy of European Law (1990), bk. 1, at 115, 168–77 (1991). See generally Eric Stein, Zahraniční věci v moderní ústavě [Foreign Affairs in a Modern Constitution], 130 Právník 33, 37–38, 576 (Nos. 1, 6, 1991).

17 Fr. Const., supra note 10, Art. 54 (by implication); Grundgesetz, supra note 7, Art. 24; Greek Const., supra note 16, Art. 28(2); Ital. Const., supra note 7, Art. 11; Neth. Const., supra note 11, Art. 92; Span. Const., supra note 9, Art. 93; Constitution (Belg.), translated in 2 Constitutions (1989), supra note 7, Art. 25 bis, new Art. 68 §§6, 7, as amended May 5, 1993, Moniteur Belge, May 8, 1993, at 10,536, 10,537; Constitution §20 (Den.), translated in 5 Constitutions (1985), supra note 7; Constitution Art. 29(4)(3) (Ir.), in 8 Constitutions, supra note 7.

18 Krzysztof Skubiszewski, Völkerrecht und Landesrecht: Regelungen und Erfahrungen in Mittel- und Osteuropa [International Law and Domestic Law. Legal Solutions and Experiences in Central and Eastern Europe], in Verfassungsrecht und Völkerrecht: Gedächtnisschrift für Wilhelm Karl Geck [Constitutional Law and International Law: In Memory of Wilhelm Karl Geek] 777, 780, 783, 787–88 (Wilfried Fiedler & Georg Ress eds., 1988). The attitude of Soviet legal science toward the effect of international law ex propria vigore is rather skeptical. Bulgarian practice knows instances of direct application of international treaties in the field of railroad and truck transport or arbitration. In Romania the majority of treaties is directly applicable to state organs in their internal activities, but the important question is the effect of the treaties on other legal subjects. In Poland, “the case law is not consistent.” Id. at 787. See also Zdzislaw Kedzia, The Place of Human Rights Treaties in the Polish Legal Order, 2 Eur. J. Int’l L. 133 (1991) (also calling for constitutional regulation of direct effect of both treaties and general international law). For the most recent Polish case law and literature, see Wtadystaw Czaplinski, International Law and Polish Municipal Law: Recent Jurisprudence of the Polish Supreme Judicial Organs, 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 871 (1993).

The former Yugoslav Federal Constitution required courts to apply promulgated international treaties directly but was silent on the question of a conflict between a treaty and internal law. Constitution Art. 210, para. 2 (Socialist Fed. Rep. Yugo., 1974), translated in Constitutions (Supp. 1986), supra note 7. The doctrine was divided, but the majority took the view that courts applied the act of ratification rather than the treaty itself and that the lex posterior ruled such a conflict. While the practice was not viewed uniformly, there were instances in which courts and other organs gave precedence to treaties over internal acts. Stevan Dordevič, Medunarodni ugovori i unutrašnje pravo SFRJ [International Treaties and the Domestic Law of SFR Yugoslavia], Jugoslovenska Revtja za Medu-narodno Pravo [JRMP], NO. 3, 1987, at 433, 445–48; Budislav Vukas, Medunarodni ugovori u odnosu prema Vstavu SFR Jugoslavije, saveznim i republickim zakonima [The Relation of International Treaties with the Constitution of the SFR Yugoslavia, the Federal Laws and the Laws of the Republics], JRMP, No. 1–3, 1983, at 90, 98. But see Željko Matič, Kasniji zakon protivan ranijem medunarodnom ugovoru i Ustav SFR Jugoslavije [A Law Contrary to the Provisions of an International Treaty Concluded Earlier, and the Constitution of the SFR Yugoslavia], 16 Zbornik Pravnog Fakulteta u Zagrebu 336, 340 (No. 3–4, 1966) (who believed that any legislation contrary to a treaty was unconstitutional).

19 V. S. Vereshchetin, G. M. Danilenko & R. A. Mullerson, Konstitutsionnaia reforma v SSSR i mezdunarodnoe pravo [Constitutional Reform in the USSR and International Law], Sovetskoe Gosudarstvo i Pravo, No. 5, 1990, at 13, 14–22. The authors propose an article providing that generally recognized principles and rules of international law, as well as ratified and published treaties, bind all state organs, legal persons and citizens. In case of conflict with Soviet legislation, the treaty would prevail.

20 121/1920 Sbírka zákonů a nařízení [Sb. z. a n.] [Collection of Laws and Regulations].

21 150/1948 Sb. For a description of the rather strained attempts to derive the answer from Article 9(3) or Article 74 of this Constitution, see Alois Wagner, Nĕkteré otázky vztahu práva mezinárodního k právu vnitro-státnímu [Some Questions on the Relation of International Law to Internal Law], 16 Studie z Mezinárodního Práva 5, 15 (1982).

22 100/1960 Sb.; 143/1968 Sb. The clause in the 1968 Constitution referring to certain types of treaties “whose implementation requires an Act of the Federal Assembly” was interpreted in the literature as supporting the transformation theory. Wagner, supra note 21, at 32.

23 Wagner, supra note 21, at 13.

24 Id. n.24 (citing cases).

25 Quoted in Czechoslovak Academy of Sciences, Cabinet of International Law, Otázka transformace mezinárodních smluv s hlediska Československého právního řádu [Question of transformation of international treaties from the viewpoint of the Czechoslovak legal order], 1 Studie z Mezinárodního Príva 61, 65 (1955).

26 Id. at 67; also Wagner, supra note 21, at 14.

27 See, e.g., E. T. Usenko, Teoreticheskie problemy sootnosheniia mezhdunarodnogo i vnutrigosudarstvennogo prava [Theoretical Problems of the Relation of International Law and Domestic Law], 1977 Sovetskh Ezhegodnik Mezhdunarodnogo Prava 57, 67–80; Vladimír Týč, K otázce vztahu mezinárodních smluv a čs. právního řádu [On the Question of the Relation between International Treaties and the Czechoslovak Legal Order], 123 Právník 821 (No. 9, 1984); and Wagner, supra note 21, at 16, 17. On the position in 1986 of the Czechoslovak federal Government, see Report of the Human Rights Committee, UN GAOR, 41st Sess., Supp. No. 40, at 71–72, UN Doc. A/41/40 (1986): “[A]ccording to Czechoslovak law, the provisions of international treaties to which the country was a party … had to be transformed into domestic law through the adoption of a special legal act… .”

28 Alois Wagner, Úvahy nod Československou ústavní úpravou plnĕní závazků vyplývajících z mezinárodních smluv [Reflections on the Czechoslovak Constitutional Regulation of Obligations Derived from International Treaties], 128 Právník 893, 894, 905–07 (No. 9–10, 1989). See also Gabriel Brenka, Právná povaha vyhlášok Ministra Zahraničných vĕcí o uzavierání medzinárodných zmluv [The Legal Character of Announcements of the Minister of Foreign Affairs and the Conclusion of International Treaties], 123 Právník 60 (No. 1, 1984).

29 Civic Forum draft §8(2). All unpublished drafts or correspondence cited in this article are available in the files of the author.

30 Id. §124(3).

31 See, e.g., Law on Private International and Procedural Law §2, in Zdeněk Kučera & Luboš Tichý, Zákon o Mezinárodnim Právu Soukromém a Procesním [Legislation on International Private and Procedural Law] 28 (1989).

32 See, e.g., Norway, Alien Act §4, cited in Cindy A. Cohn, The Early Harvest: Domestic Legal Changes Related to the Human Rights Committee and the Covenant on Civil and Political Rights, 13 Hum. Rts. Q. 295, 302–03 (1991). On Soviet practice, see Usenko, supra note 27, at 88. On China, see, e.g., General Principles of Civil Law of the People’s Republic of China, adopted Apr. 12, 1986, translated in China Laws for Foreign Business (CCH) ¶19–150, at 23,801 (1987).

33 Const, law, Art. 2, 23/1991 Sb.

34 I do not know whether consideration was given in this context to the status of certain broadly established human rights under the jus cogens doctrine (Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 53, 1155 UNTS 331, 8 ILM 679 (1969)), which would make them superior even to the Constitution.

35 Const, law, Arts. 2(b), 3(1), 6, 91/1991 Sb.

36 See Article 105 of the Constitution of Peru, supra note 16, which reads: “Principles contained in treaties relative to human rights have constitutional status [jerarquía constitutional]. They cannot be modified except by the procedure regulating amendments to the Constitution.” See also Constitution (Russ. Fed. Apr. 12, 1978), as amended, translated in 15 Constitutions, supra note 7. This Constitution was replaced, see text at note 77 infra. In Austria the European Convention on Human Rights was given the status of a constitutional text by a special federal constitutional law, Bundesver-fassungsgesetz [federal constitutional law] No. BV6 of Mar. 4, 1964, BGB1 No. 59, discussed in Willibald P. Pahr, Der Verfassungsrang der Europäischen Menschenrechtskonventitm in Österreich [The Constitutional Status of the European Convention on Human Rights in Austria], 2 Europäische Grundrechte Zeitschrift 576, 577 (1975). The Spanish Constitution, supra note 9, Article 10(2), provides that constitutional provisions on human rights must be interpreted in conformity with the Universal Declaration on Human Rights and international agreements on the same matter ratified by Spain.

37 Letter to author from Acting Director, International Law Department, Federal Ministry of Foreign Affairs (Nov. 22, 1991).

38 Proposed Constitution of the Czech and Slovak Federative Republic, submitted to the public by the President of the ČSFR, Václav Havel (n.d.) (unofficial Eng. trans.), also in Hospodářské Noviny, Mar. 14, 1991, at 5.

39 See generally Eric Stein, Post-Communist Constitution-Making: Confessions of a Comparatist (Part I), 1 New Eur. L. Rev. 421 (1993).

40 The Havel draft, supra note 38, Art. 7(2), provided also that the Federative Republic should fulfill its obligations in the field of individual and collective security in the spirit of international law and on the basis of bilateral and multilateral treaties.

41 My letter to Prof. Dr. Jiří Boguszak, Co-Chairman, Commission of Experts on the Federal Constitution, Office of Government of the Czech and Slovak Federative Republic (July 12, 1991). See also my correspondence with Acting Director, International Law Department, Federal Ministry of Foreign Affairs (Nov. 1991–Jan. 1992); and statements at meetings in Prague and Bratislava.

42 The practice of modifying, or adding to, the constitution by a constitutional act adopted by a special majority in the legislature was well established.

Professor Jackson correctly suggests that citizens—and foreign investors—in countries that are shifting from a socialist to a market economy might feel more secure if the country in question accepted an international treaty such as a customs union or free trade agreement that would be directly applicable and superior to legislation. Such treaties can serve as a check against any attempt by the legislature to alter the market orientation. Jackson, supra note 15, at 332.

45 The situation would be construed as a conflict between the federal law executing the treaty and the incompatible federal law, and would fall within the jurisdiction of ordinary courts. Under the Communist regime, courts operated without an effective guarantee of judicial independence and were subject to Party influence. In the absence of a tradition of judicial independence, the Constitutional Court appointed by the post-Communist authorities, who reflect the new political reality, may be better suited to deal with controversies of this type than ordinary courts.

Jackson lists possible arguments against direct applicability and (by implication) full supremacy of treaties over legislation (without endorsing them): the dualist theory of separate international and internal legal orders; “interference in internal affairs”; the possible lack of a parliamentary role in treaty making; the capacity of an act of transformation to make an ambiguous treaty provision clear, to impose the legislature’s interpretation and to fit the treaty into the domestic system; without a transformation act, the danger of imposing canons of international treaty interpretation in the domestic setting; the use of treaties to enhance the power of one domestic organ at the cost of another; the desirability of giving legislatures the “option to breach” treaties in applying them, particularly if the breach is “minor”; the fact that some breaches “may be desirable”; the embarrassment to governments of courts’ determinations of governmental violations of treaties; the absence of reciprocity if the other party to the treaty does not permit direct applicability; governments’ hesitation to enter into otherwise desirable treaties “in fear of direct applicability and supremacy”; the belief that constitutions should only regulate “norms … so essential to government that they need to impose rigidity”; and the danger of direct rule by a treaty-erected multilateral body. Id. at 323–27, 330–31.

One may add the argument that allegations of treaty violations are dealt with more efficiently by diplomats in international forums than by courts, particularly where the judiciary has no experience with this type of controversy. Finally, it is said that, even in the countries where full superiority of treaties over legislation is formally part of constitutional law, its application is at times avoided by far-fetched interpretation or other devices. See Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 Eur. J. Int’l L. 159 (1993). None of these arguments appear to me conclusive, at any rate as regards the Central-Eastern European countries.

After almost 40 years of submitting to the “persistent—anachronistic—influence of the positivist school,” which is “still dominant in our country,” the Italian international law scholar Professor Sperduti was converted to the view that, even in the absence of a constitutional provision, a law contrary to a treaty is without effect regardless of whether it was enacted before or after the treaty. He derives this position from a modern interpretation of the “highest principles of international law,” including pacta sunt servanda, which emanate from the “universal public conscience.” Giuseppe Sperduti, Trattati intemazionali e leggi dello stato [International Treaties and Domestic Law], 65 Rivista di Diritto Internazionale 5, 6, 10, 13 (1982).

44 Grundgesetz, supra note 7, Art. 24; Ital. Const., supra note 7, Art. 11. See generally Rudolf Bernhardt, Bundesverfassungsgericht und völkerrechtliche Verträge [Constitutional Court and International Treaties], in 2 Bundesverfassungsgericht und Grundgesetz 154 (Christian Starck ed., 1976).

45 On the reserved attitudes toward customary law, see supra text after note 11, infra text at notes 96–97.

A great number, in fact the majority, of international agreements of the Czech and Slovak Federative Republic would continue to be concluded by the Federal Government by delegation from the President. In theory, the solution suggested could be applied to these agreements as well, but this problem could be left to legislation or practice. The U.S. Supreme Court held that an “executive agreement” concluded by the President alone may supersede a conflicting state law, but it has never ruled on whether such an agreement would supersede a conflicting federal law. Eric Stein with Louis Henkin, Towards a European Foreign Policy? The European Foreign Affairs System from the Perspective of the United States Constitution, in 1 Integration Through Law, bk. 3, at 3, 37 (Mauro Cappelletti, Monica Seccombe & Joseph Weiler eds., 1986). Professor Skubiszewski suggested that international treaties other than those approved by the legislature should prevail over conflicting national provisions of a lower standing than legislation. Krzysztof Skubiszewski, Report prepared for the Subcom-mission for International Law of the Legislative Council, Presidium of the Council of Ministers, as amended (Jan. 20, 1987) (trans. JUDr. Vladimír Balaš).

46 Constitution of the Czech and Slovak Federative Republic, working proposal, Head VIII, Arts. 8, 129 (Aug. 1991).

47 It might have been interpreted—but was not so intended—as dealing with private international law (conflict of laws).

48 Stein, supra note 39, at 458.

49 Government proposal, Arts. 10 and 51(2) (Nov. 4, 1992). The Constitutional Court was also to decide on measures necessary for the implementation of a judgment of an international court, “which is binding for the Czech Republic to the extent that it cannot be implemented otherwise.” Id., Art. 85(h). Article 11 of an earlier partial draft (Sept. 14, 1992) followed the above-quoted Article 8 of the proposed Federal Constitution, text at note 46 supra, with the important omission of the first clause ensuring priority of directly applicable treaties over legislation. A very early (July 1990) working draft would have provided that the general principles of international law and accepted (pfevzaté) international treaties formed a part of the legal order of the Republic (Head II, Art. 9). The Constitution of Colombia of 1991 could be read as requiring compulsory review of treaties. See Art. 241(10), translated in 4 Constitutions (1991), supra note 7.

50 Constitution of the Slovak Republic, first working draft, 1990, Art. 10(2), presented by the Commission of the Slovak National Council (Parliament) for the Preparation of the Constitution of the Slovak Republic, under the leadership of Prof. JUDr. Karol Plank, Chairman of the Supreme Court of the Slovak Republic.

51 See my facsimile letters to the Chairman of the Foreign Affairs Committee of the Czech National Council (Parliament) (Nov. 5, 1992), and to Doc. JUDr. Vojtěch Cepl (Nov. 9, 1992); and my Comments on the Government Proposal for a Constitution of the Czech Republic (international and selected other aspects), facsimile message to the Vice Chairman of the Czech Republic Constitutional Commission (Dec. 3, 1992).

Although the status of treaties within a federal state is of particular importance in the context of compliance with the treaties by the component states, the issue has an obvious independent rationale in a unitary state.

52 Comments on the Government Proposal for a Constitution of the Czech Republic, supra note 51.

53 Constitution (Czech Rep.), adopted by the Czech National Council on December 16, 1992, unofficial translation published by Czech News Agency (Dec. 18, 1992). Article 10 provides: “Ratified and promulgated accords on human rights and fundamental freedoms, to which the Czech Republic has committed itself, are immediately binding and carry power superior to that of law [legislation].” See generally Vladimír Týč, Aplikace mezinárodních smluv ve vnitrostátním právu [Application of International Treaties in Internal Law], 132 Právnik 331–36 (No. 4, 1993).

54 Id., Art. 87(1)(a) and (b).

55 The proposal of the drafting team included a clause on accession to international organizations, but it was dropped, I am informed, for personal rather than substantive reasons. The Constitution also introduces the much-needed requirement of promulgation, which applies to both legislation and international agreements approved by the legislature. Id., Art. 52. Article 49 provides that “international treaties which must be approved by Parliament are passed by Parliament like draft laws.” Article 49(2) lists the treaties that require parliamentary approval.

56 Id., Art. 87(1)(i). See Government proposal, supra note 49, second sentence.

57 Constitution (Slovak Rep.), adopted by the Slovak National Council on Sept. 1, 1992 [hereinafter Slovak Const.], Art. 11, 460/1992 Zbierka zakonov Slovenskej Republiky [Zb.] [Collection of Laws of the Slovak Republic] (my translation from Ústava Slovenskej Republiky [Constitution of the Slovak Republic] 17 (Jaroslav Chovanec & Petr Mozolik eds., Bratislava 1992)).

58 See Pavol Holländer, The New Slovak Constitution; a Critique, E. Eur. Const. Rev., No. 3, 1992, at 16, 17. The article quoted above is limited to treaties dealing with those human rights that are protected by the Constitution. It assumes that if the Constitution provides for a higher standard of protection than a treaty, that higher standard will apply. On the face of it, the corresponding text adopted in the Czech Constitution does not so assume. However, a reasonable interpretation would reach the same result and, in any event, the principal human rights treaties generally safeguard any higher national standard. The Slovak text prevents the possibility that a lower legislative (not constitutional) standard might prevail over a treaty standard.

59 Slovak Const., supra note 57, Arts. 125(e), 132(1). The formulation of Articles 125 and 132(1) may raise some question whether the jurisdiction of the Constitutional Court was intended to embrace conflicts between a treaty and legislation. What is meant by “generally binding legal provisions” in Article 125(e)? That concept is used in the rest of the article to denote exclusively legal measures other than legislation. But that does not seem to be the common understanding of the concept.

60 Id., Art. 144(2).

61 Law on the Collection of Laws of the Slovak Republic, 1/1993 Zb.

62 “The law [legislation] has superiority over everything. But only such law or other generally legally binding legal provision that is in conformity with the basic law—the Constitution. That, naturally, applies also to … international treaties promulgated in the way determined by the law.” Milan Číč & Lubomír Fogaš, Slovo na úvod [A Word for an Introduction], in Ústava Slovenskej Republiky, supra note 57, at 3, 7.

63 Id. at 5. What is meant by “generally accepted”? Only multilateral treaties? Only certain multilateral treaties?

64 Slovak Const., supra note 57, Arts. 7, 86(c).

65 Milan Číč & Lubomír Fogaš, Democratický character ústavy SR z roku 1992 [Democratic Character of the Constitution of the SR of 1992], in Ūstava Slovenskej Republiky, supra note 57, at 82. For a criticism of the Slovak Constitution, see Peter Kresák, Notes on the Form of Government in the Constitution of the Slovak Republic (forthcoming).

66 Constitution Art. 5(4) (Bulg., July 12, 1991), translated in 3 Constitutions (1992), supra note 7 [hereinafter Bulg. Const.].

67 Id., Art. 149(1)(4). The Constitutional Court also reviews treaties for constitutionality prior to their ratification. The Constitutional Court upheld the constitutionality of a treaty with Turkey. Herman Schwartz, The New Courts—an Overview, E. Eur. Const. Rev., No. 2, 1993, at 28, 31.

68 Constitution Art. 7(1) (Hung., 1949), as amended Oct. 18, 1989, translated by U.S. Dep’t of Commerce,. Dec. 31, 1990, available in LEXIS, Europe Library, EEI.EG File [hereinafter Hung. Const.].

69 Constitution Arts. 11(2), 20 (Rom., Nov. 21, 1991), translated in 15 Constitutions (1992), supra note 7.

70 Constitution Arts. 16(2), 126(2) (Fed. Rep. Yugo.), trans, available in LEXIS, Europe Library, EELEG File [hereinafter Yugo. Const.].

71 Constitution Art. 134 (Croatia, Dec. 22, 1990), translated in 4 Constitutions (1992), supra note 7 [hereinafter Croat. Const.].

72 Constitution Arts. 8, 153(2) (Slovenia, Dec. 23, 1991), translated in 17 Constitutions (1992), supra note 7 [hereinafter Sloven. Const.].

73 Proekt Konstitutsii [Draft Constitution] Art. 11, para. 2 (Ukraine, Jan. 28, 1993) (Ukrainian text provided by Center for the Study of Constitutionalism in Eastern Europe, University of Chicago Law School). The National Assembly and its houses may request a ruling by the Constitutional Court on the conformity of the Constitution with international agreements submitted to the Assembly for ratification. Id., Art. 218(1). I. S. Semschůchenko, The Draft of the New Constitution of Ukraine, Parker Sch. Surv. E. Eur. L., No. 6, 1992, at 5.

74 Constitution (Pol.), amended as of Apr. 19, 1991, translated in 15 Constitutions (1991), supra note 7.

75 Constitutional Law of Oct. 17, 1992, translated by U.S. Dep’t of Commerce, available in LEXIS, Europe Library, EELEG File.

76 Draft of the New Constitution of the Republic of Poland, Art. 4, Constitutional Committee of the Sejm, Doc. C/Fl/76, tjl, 1991:

1. Laws of the Republic of Poland shall accord with ratified international agreements and generally recognized principles of international law.

2. Ratified international agreements shall have priority over laws in cases where they are not compatible with the law.

See also Skubiszewski, supra note 45, proposed Article 4; Krzysztof Skubiszewski, Konstytucyjne ujecie stosunku prawa polskiego do prawa miedzynarodowego [The Constitutional Formulation of the Attitude of Polish Law to International Law], 10 Panstwo i Prawo 138, 141–46 (1987).

After the 1993 elections, Andrzej Olechowski was appointed Minister of Foreign Affairs in the new Government.

77 Constitution Art. 15(4) (Russ. Fed., Dec. 12, 1993), in Izvestiia, Nov. 10, 1993, at 3 [hereinafter Russ. Const.].

78 Art. 125(2)(g), id. at 4.

79 For the text of the earlier draft, see Rossiiskaia Gazeta, May 8, 1993, at 9, Art. 2(4). Lawyers in the Institute of State and Law of the Russian Academy of Sciences are said to have played an important role in promoting the idea of direct incorporation of international law into internal Russian law. Letter to author from Gennady M! Danilenko, Head, Center for International Law, Institute of State and Law, Russian Academy of Sciences (Oct. 18, 1993). See also Gennady M. Danilenko, The New Russian Constitution and International Law, infra p. 451.

80 Russ. Const., supra note 77, Art. 69, Izvestiia, Nov. 10, 1993, at 3.

81 Draft Constitution of the Republic of Estonia, Art. 123, translated by U.S. Dep’t of Commerce, June 19, 1992, available in LEXIS, Europe Library, EEI.EG File. See also id., Arts. 121, 122.

82 Draft Constitution of the Republic of Lithuania, Art. 138, last para., approved by the Supreme Council Oct. 13, 1992 (Eng. trans, provided by Lithuanian Embassy to the United States).

83 Hung. Const., supra note 68, Art. 7(1).

84 Bulg. Const., supra note 66, Art. 149(1)(4).

85 Yugo. Const., supra note 70, Art. 16, para. 2.

86 Draft of the New Constitution of the Republic of Poland, supra note 76, Arts. 4, 19. The Constitutional Tribunal is given jurisdiction to pass on the constitutionality of treaties, as well as on conformity of laws and other normative acts with treaties. Id., Art. 124(1), (2), (3); see also Art. 124(a), 128(a), 129(a), 130(a).

87 Proekt Konstitutsii, supra note 73, Art. 11, para. 2.

88 Sloven. Const., supra note 72, Art. 153, para. 2.

89 Draft Constitution of the Republic of Estonia, supra note 81, Art. 3, para. 1.

90 Draft Constitution of the Republic of Lithuania, supra note 82, Art. 135.

91 Russ. Const., supra note 77, Arts. 15(4), 17(1), 69, Izvestiia, Nov. 10, 1993, at 3. The 1992 Constitution granted “international standards pertaining to human rights” priority over Federation laws; they were to “serve as the direct basis of the rights and obligations of citizens.” Constitution (Basic Law), Art. 32, para. 2 (Russ. Fed.), amended as of Apr. 1992, translated in 16 Constitutions (1993), supra note 7. It is not clear why the human rights clauses were diluted in the December 1993 Constitution.

92 Croat. Const., supra note 71, Arts. 133, 135; see also Art. 2, para. 4.

93 Russ. Const., supra note 77, Art. 79, Izvestiia, Nov. 10, 1993, at 4. President Yeltsin’s earlier, more elaborate proposal would have empowered the Russian Federation to delegate by treaties “part of its sovereign rights to commonwealths, communities, alliances and other associations of states,” but these treaties could not affect the human rights and freedoms of the Russian Federation system, had to be “built and implemented on the basis of the principles of equality and reciprocity and must be approved by a two-thirds majority of all deputies of the chamber.” Draft Constitution (Basic Law) Art. 69 (Russ. Fed.), proposed by President Yeltsin Apr. 29, 1993, translated in 16 Constitutions (1993), supra note 7.

94 Draft Constitution of the Republic of Estonia, supra note 81, Art. 121(3); see also Art. 120.

95 Draft Constitution of the Republic of Lithuania, supra note 82, Art. 136. See also Art. 135, para. 1: Republic to participate “in the creation of a sound international order based on law and justice,” and Art. 138, para. 5: parliament to approve participation in universal and regional organizations.

96 Cassese, supra text after note 11.

97 Bruno Simma, Editorial, 3 Eur. J. Int’l L. 215, 216 (1992).

98 Wagner, supra note 21, at 12. While it is not uncommon in the United States to uphold an individual right derived from a “self-executing” treaty, individual claims under general international law have been recognized only in rare instances, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

99 For an effective argument on this subject, see Neil MacCormick, Beyond the Sovereign State, 56 Mod. L. Rkv. 1 (1993). See also José E. Alvarez, Positivism Regained, Nihilism Postponed, 15 Mich. J. Int’l L. 747 (1994).

100 Wagner, supra note 21, at 14. On the experience in the European Community, see Stein, External Relations of the European Community, supra note 16, at 170–71. On the situation in the United States, see John H. Jackson, The World Trading System—Law and Policy of International Economic Relations 61–68, and more generally 85–88 (1989).

101 Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 234 (1993).

102 Louis Henkin, Constitutionalism, Democracy and Foreign Affairs 64 (1990). Stein with Henkin, supra note 45, at 37. For a history of this rule in the United States, see Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1094–1102 (1985); and Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 Va. J. Int’l L. 393 (1988), and his Background Paper included with Responses Prepared by a Committee of the American Branch of the International Law Association for the ILA Committee on International Law and Municipal Courts (1993).