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Published online by Cambridge University Press: 27 February 2017
The new Greek Constitution which entered into force on June 11, 1975, offers to international lawyers an illustration of the increasing importance given to international legal issues by politicians and constitutional experts as they attempt to fashion constitutional structures more in keeping with contemporary international realities. The provisions of the new Constitution concerning international law and relations which are discussed here are largely consistent with current constitutional trends in Western Europe. They, and the debate around them, may also yield useful insights into the role and importance of the international legal context for a small country actively involved in and influenced by world affairs. They are thus of interest not only to those who follow political events in Greece but to a wider public concerned with democracy and internationalism.
1 Greek Government Gazette, Fasc. A, No. 111, June 9, 1975. An “official translation” was printed in 1 New Greece No. 7(July 1975) 18–26, and No. 8 (Aug.-Sept.1975) 18–29. The translation used here is based on it, but with extensive modifications. Citation of parliamentary debates and documents has been kept to a minimum, in part because only provisional texts were available at the time of writing.
2 Constitutional Act of October 3/4, 1974, text (in Greek) in 1 to Syntagma 86(1975). While the time limits were later extended, the entire constitution-making process, from submission of the government draft to entry in force of the Constitution, lasted less than six months. As a result, a certain lack of deliberate study and detailed preparation is reflected in both the debates surrounding the Constitution and the final text. See, e.g., infra note 21.
3 The draft was first published on December 21, 1974; it was formally submitted to Parliament, after slight modification, on January 7, 1975.
4 The proposals were published in the Greek press. See, e.g., To VIMA, Jan. 19, 21, 22, and 23, 1975. Proposed amendments based on several of these were later introduced in Parliament. The experts’ group consisted of half a dozen legal scholars, well known for their resistance against the dictatorship and located, politically, at various points within the opposition. The same group had prepared earlier a booklet, with more general Proposals for a Democratic Constitution (Athens, 1975, in Greek). The author should here disclose personal bias in that he briefly collaborated with the group in the drafting of proposals for the international law clauses of the Constitution.
5 The new Constitution touches on international affairs in certain other provisions, as well. Article 4, paragraph 3, allows deprivation of Greek nationality only in the cases of voluntary acquisition of another nationality and of service “contrary to the national interests” in a foreign country. Article 5, paragraph 2, provides:
All persons living in the Greek territory shall enjoy full protection of their life, honor and freedom, regardless of nationality, race or language and of religious or political beliefs. Exceptions are permitted only in the cases provided for by international law.
The extradition of aliens prosecuted for their activities in defense of freedom is prohibited.
Article 107 continues the practice initiated under the 1952 Constitution of offering foreign investors special protection under a statute of enhanced formal validity. See also Article 100(l)(vi), infra note 41.
6 On the precise meaning of that term, see infra, note 22, and accompanying text.
7 Article 35(1) requires that all acts of the President must be cosigned by the competent Minister, subject to certain exceptions listed in the second paragraph of the article.
8 Article 43(2) and (4) provide for possible delegation of legislative powers to the President in certain cases, by means of an Act of Parliament.
9 Article 32.
The King shall be the supreme Head of State; he shall command the armed forces, declare war, conclude treaties of peace, alliance and commerce, and announce them to Parliament with the necessary clarifications when the interest and the security of the State permit it. However, treaties of commerce, as well as any others that contain concessions as to which under other provisions of the present Constitution no provision can be made without a law, or that impose a burden upon the Greeks individually, shall have no force without the consent of Parliament.
Translation (with modifications) from 3 A. Peaslee, Constitutions Of Nations 403, 409 (3d ed. by D. Peaslee Xydis, 1968).
The main changes proposed in the government draft were the substitution of the President for the King, the removal to other articles of the first two clauses, and the requirement that parliamentary consent be given by act of Parliament.
10 Article 68, 3 Peaslee supra note 9, at 77, 84.
11 See Fatouros, A. A., International Relations and the Constitution, To Vima, Jan. 3, 1975 Google Scholar; Tenekides, G., Our External Orientations and the Constitution—II, id. Jan. 14, 1975 Google Scholar; S. Calogeropoulos-Stratis, International Rules and the New Constitution, id. March 13, 1975 (all articles in Greek).
12 See, in particular, To VIMA, Jan. 19, 1975.
13 It is interesting to note that one of the earliest Greek Constitutions, promulgated in 1827, before the end of the War of Independence and the definite formation of the Greek State, also insisted on a significant role of Parliament in treaty-making. It provided (sec. 95):
The Government cannot, without the Parliament’s consent, declare war or conclude treaties of peace, alliance, friendship, commerce, and neutrality. Armistice agreements of a few days’ duration are excepted, but even then the Government must notify Parliament immediately.
14 A provision to similar effect had been included in the only other republican Greek Constitution (of 1927) in its Article 83.
15 Compare on this point the Constitution of The Netherlands, as amended in 1953, Articles 58–67. See van Panhuys, H. F., The Netherlands Constitution and International Law, 47 AJIL 537 (1953);CrossRefGoogle Scholar van Panhuys, The Netherlands Constitution and International Law: A Decade of Experience, 58 id. 88 (1964). For further historical discussion and analysis (bringing out, among other things, that earlier Netherlands Constitutions had provisions on treaty-making which closely resembled the Belgian and Greek versions referred to earlier), see L. Erades and W. L. Gould, the Relations Between International Law and Municipal Law in the Netherlands and in the United States, esp. at 178–206 (1961). For some recent efforts in a similar direction in the United States, see, Ohly, C., Advice and Consent: International Executive Claims Settlement Agreements, 5 California Western International L. Rev. 271 (1975);Google Scholar and cf. 69 AJIL 864–71 (1975). 16 Present Article 36(3). Its language (again taken from the Belgian Constitution of 1831) is found in all earlier Greek Constitutions.
17 See, in particular, the debate on declaration of war in the March 18, 1975 meeting of the full Constitutional Committee of Parliament.
18 See the discussion of Articles 27, 28(2) and (3), infra.
19 The initial governmental draft included an express prohibition on the creation of parliamentary commissions of inquiry concerning foreign affairs (and national defense).This provision was eventually replaced by that of the present Article 68(2) (b) which requires a special majority for the creation of parliamentary commissions of inquiry in these two areas.
20 See, as to Belgium, Smets, P.-F., L’Assentiment Des Chambres Législatives Aux Traités Internationaux 62–69 (1964)Google Scholar. and cf. more generally, H. Bldc, Treatymaking Power 237–238 (1960) and passim; Kearney, R. D., Internal Limitations on External Commitments—Article 46 of the Treaties Convention, 4 International Lawyer 1 (1969)Google Scholar; P. Reuter, Introduction Au Droit Des TraitéS 28–30, 56 (1972).
21 The language of the Constitution unfortunately reflects the haste in drafting. In the provisions here considered, for example, three words (here translated as “treaty,” “convention,” and “agreement“) are used to refer to international agreements, with no indication of what difference, if any, is intended in their meaning. There is no indication of a difference in meaning, either, between the “generally recognized” rules of international law of Article 2(2) and the “generally accepted” rules of Article 28(1).
22 Webster’s Dictionary (3d ed.) gives as the first meaning of the verb “to sanction,” “to make valid or binding: ratify, confirm or put into effect typically by decree, fiat or other formal procedure.” Despite semantic accuracy, use of this term does not make for elegance of style in English. It is however important to retain the distinction. Greek usage, as well, even in formal legal language, is by no means free of confusion between the two terms.
23 For a clear exposition of the distinction between the “international” and the “constitutional sense” of “ratification,” see, Fitzmaurice, G. G., Do Treaties Need Ratification? 15 Brit. Yearbook of International Law 113, at 113–116 (1934)Google Scholar. and cf. Paul Reuter’s wise comments on “problems of vocabulary and problems of substance” in the relationship between international and internal law, supra note 20, at 68–70.
24 There is further linguistic confusion here, since it would seem that, strictly speaking, it is the head of state (now the President) who “sanctions” the treaty in all cases, after Parliament has approved the related bill (as he does for all laws). Cf. Article 42(1) of the 1975 Constitution: “ The President of the Republic sanctions, promulgates and publishes the laws voted by Parliament within one month of the vote.“
25 See the succinct but valuable discussion in, Evrigenis, D. J., Les conflits de la loi nationale avec les traités intemationaux en droit hellénique, 18 Rev. Hellénique De Droit International 353, 354, note 2 (1965)Google Scholar.
26 On this point, see the perceptive detailed study by Valticos, N., Monisme ou dualisme? Les rapports des traités et de la hi en Gréce (spécialement à propos des conventions internationales du travail), 11 Rev. HelléNique De Droit International 203, 208 ff. (1958)Google Scholar.
27 The sanctioning act may, of course, provide that the date of the treaty’s internal entry into force depends on that of its international force. See, Valticos, supra note 26, at 221.
28 Some guidance may be found in the study of similar provisions of two other Western European Constitutions. See Federal Republic of Germany, Basic Law, Article 23(2) and (3), 3 Peaslee supra note 9, at 361, 366; Italy, Constitution (1947), Article 11, id. 500, 501.
29 Cf., e.g., Federal Republic of Germany, Basic Law, Article 24(1). 3 Peaslee infra note 9, at 361, 366; The Netherlands, Constitution, Article 67, id., 652, 660–61.
30 It may further be noted that reciprocity is also emphasized in paragraph (1) of Article 28. It was indeed forcefully defended by the government spokesman in the related debate. In this respect too an a fortiori argument seems appropriate.
31 The quoted language is taken from Article 46 of the Vienna Convention on the Law of Treaties, which may be taken to express on this point a fairly general consensus. For relevant comments, see the authors cited supra note 20 (in particular Professor Reuter’s remarks).
32 For a reasoned defense of such language, see Tenekides, G., Our External Orientations and the Constitution—I, To Vima, Jan. 12, 1975 (in Greek)Google Scholar.
33 The agreements in question are currently being renegotiated. It was said in debate that a “transitional” provision on the subject would be included in the Constitution. No such clause appears in the final text.
34 The best study in English of the impact of foreign “protection” on the country’s early constitutional development is, N. Kaltchas, Introduction to the Constitutional History of Modern Greece (1940).
35 Cf. Areopagus [Greek Court of Cassation] Judgment No. 14/1896.
36 See the discussion supra, text accompanying notes 22–27.
37 See, Evrigenis, supra note 25, at 355–56.
38 See the detailed discussion in, Valticos, supra note 26, at 224 ff.
39 See To VIMA, Jan. 19, 1975. See also Tenekides, supra note 32; CalogeropoulosStratis,supra note 11.
40 Debate of April 2, 1975, on the minutes of which the discussion in the next two paragraphs is based.
41 1975 Constitution, Article 100(1)(vi). This Special Supreme Court is not a permanent body; it is composed of the Presidents and some members of the country’s highest courts.
42 The Minister noted in this connection that any possible rigidities of such a rule would be tempered by application of the principles of reciprocity and rebus sic stantibus.
43 Indeed, Professor Evrigenis has concluded that Greek courts are rather liberal in considering treaties as self-executing, supra note 25, at 357.
44 See, Valticos, supra note 26, at 212 ff.
45 For a discussion of some of the methods by which the U.S. Government tried to manipulate legal considerations relative to its continuing recognition of the military regime, see A. A. Fatouros, How to Resolve Problems by Refusing to Acknowledge They Exist: Some Legal Parameters of Recent U.S. Policy Toward Greece and Cyprus, in T. A. Couloumbis and S. M. Hicks, eds., Conference Proceedings. U.S. Foreign Policy Toward Greece and Cyprus: The Clash of Principle and Pragmatism (The Center for Mediterranean Studies, Washington, D.C., 1975) 20, at 21–26.
46 The definitional and other problems of the concepts of autonomy, dependence, and the like, and their relevance to international law cannot be discussed here; they must be left for future elaboration elsewhere.