| dc.description.abstract | Some twenty years ago, the importance of international law, particularly for
practical purposes, could be described as marginal in national legal orders in
the socialist Central and Eastern European (CEE) Countries. The main reason
for this was the dualist approach in regard to international law. Fundamental
political and economic changes, such as the Velvet Revolution in
Czechoslovakia, marked the end of the cold war and the beginning of a
transition process. The changes in national legal orders have been
accompanied by substantial modifications in the area of constitutional law,
mostly resulting in the adoption of entirely new or radically modified
constitutions. This is true also for the Czech Republic, Slovakia, Poland and the
Russian Federation.
One of the most remarkable common characteristics of the new constitutions of
the CEE countries is the shift from a dualistic approach to a broad openness to
international law. Despite this common feature the manifestation of this
openness cannot be regarded as uniform – the methods used by states to deal
with international law and to ensure the conformity of the domestic legal order
with their international obligations vary.
The common denominator of the constitutional orders under review is the fact
that the rules of international law are considered to be a part of their national
legal orders. General provisions concerning the relationship between national
law and international law can be found in the Czech, Russian and Polish
constitutions, but not in the Slovak constitution.
The common feature of all four constitutional texts is that they take a clear
position on the status of treaties, stipulating conditions (approval by parliament,
promulgation, etc) under which a treaty or certain categories of treaties (eg as
listed by Article 49 of the Czech Constitution) will be considered to be part of
the national legal order, as well as the hierarchical status of treaties in the case
of a conflict with national law. In all four countries under consideration, the rank
of treaties lies between the level of the Constitution and that of ordinary
parliamentary statutes.
The situation is considerably different in regard to the role of customary
international law: only the Russian Constitution includes not only treaties but
also customary international law in the legal order. Nevertheless, Slovak,
Czech and Polish constitutional provisions stipulate the commitment of the
states to fulfil their obligations under international law, including customary
international law. Even though legally binding, these provisions are not identical
with general provisions incorporating certain categories of international law as
stated above.
The openness to international law is demonstrated also by the inclusion of
provisions pursuant to which states can transfer certain powers to international
organizations. (Such provisions were included in the constitutions of e.g.
Slovakia, Poland and the Czech Republic in the context of their integration into
the EU for the purpose of ensuring the direct application of Community law.)
Thus, if considering the formal openness to international law, a high degree of
willingness to open the domestic legal orders to international law can be
discerned in the constitutional systems of the states under review. However,
the extent of constitutional provisions on the relation of a particular state to
international law does not necessarily strengthen its application in practice, as
can be observed in the legal order of the Russian Federation.
When determining the factual status of international law and its incorporation in
the domestic legal orders of the CEE countries, the judicial practice of national
courts is of great importance, in particular the judicial practice of constitutional
courts. The question of the role of international law in the decisions of
constitutional courts appears to be even more interesting because of the fact
that implementation of constitutional jurisdiction belongs to one of the most
important innovations of CEE transition countries after the end of the cold war.
Their broad competencies in respect to international law can be seen as an
additional indicator of the openness of their legal orders towards supranational
legal rules.
International law plays an important role not only as a subject of judicial review
but also as a criterion of constitutionality applied in national procedures before
the constitutional courts. The extensive jurisprudence of national constitutional
courts based on international law is to a large extent characteristic of the CEE
Countries. Their constitutional courts often rely on international law, especially
human rights, when reviewing the constitutionality of domestic acts. This
underlines the fact that general constitutional provisions on international law do
not remain only a ‘dead letter.’ However, when demonstrating their openness
towards international law, constitutional courts sometimes exceed the limits of
their competences, as can be observed e.g. in the case of the Czech
Constitutional Court. (Despite the fact that the changes introduced by the
Constitution in 2001 caused it to lose the competence to use international law
as a criterion for its decisions, the Court continued to base its decisions partly
on international law.)
Generally it can be argued that the acceptance of international law is
remarkably high in the legal orders of the countries under review – in particular
when taking into consideration the relatively short time which was needed not
only to formally ensure the role of international law, but also to ensure its
implementation in practice, most notably in the judicial practice of constitutional
courts. This does not mean, however, that there are no difficulties which have
to be solved in the future. The application of customary international law by
national courts is an example of this. However, the opening of national legal
systems of the formerly totalitarian states towards international law has
undoubtedly had a positive influence on the process of their transformation
towards the rule of law. | en |
