Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 4, Article 7 and Article
12 of the Law of the Republic of Lithuania "On
International Treaties of the Republic of
Lithuania" with the Constitution of the Republic
of Lithuania
Vilnius, 17 October 1995
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the petitioner - the Secretary of the Ministry of Justice
Gintaras Švedas, the representative of the Government,
pursuant to Part 1, Article 102 of the Constitution of the
Republic of Lithuania and Part 1, Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 3 October 1995 conducted the investigation of
Case 8/95 subsequent to the petition submitted to the Court by
the petitioner - the Government of the Republic of Lithuania -
on 19 June 1995, requesting to investigate if Part 4, Article 7
and Article 12 of the Law of the Republic of Lithuania "On
International Treaties of the Republic of Lithuania" are in
compliance with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner - the Government of the Republic of
Lithuania - requests the Constitutional Court to investigate if
Part 4, Article 7 and Article 12 of the Law of the Republic of
Lithuania "On International Treaties of the Republic of
Lithuania" (Official Gazette "Valstybės Žinios", No.16-415,
1991) are in compliance with the Constitution.
It is pointed out in the request that in accordance with
the Law "On International Treaties of the Republic of
Lithuania" international treaties may be concluded: after
ratifying them by the Government or the Ministry of Foreign
Affairs in the procedure established by the Government, after
accession to them or ratification of them by the Supreme
Council of the Republic of Lithuania. Article 12 of said Law
has established that all "international treaties of the
Republic of Lithuania (irrespective of the way of conclusion
thereof - The petitioner's note) shall have the force of law on
the territory of the Republic of Lithuania", while Part 3 of
Article 138 of the Constitution states that "international
agreements which are ratified by the Seimas of the Republic of
Lithuania shall be the constituent part of the legal system of
the Republic of Lithuania".
In the opinion of the petitioner, this constitutional
provision allows to affirm that only such international
treaties which are ratified by the Seimas acquire the force of
law, therefore, a legally justified doubt arises, whether
Article 12 of the Law "On International Treaties of the
Republic of Lithuania" in its extent of regulation does not
contradict Part 3 of Article 138 of the Constitution.
The petitioner also thinks that the legal force of other
international treaties of the Republic of Lithuania, which were
confirmed or to which the accession was made after the adoption
of the Constitution of 1992, has become indeterminate, because
in accordance with the 1969 Vienna Convention on the Law of
International Treaty, the provisions of which were binding to
Lithuania pursuant to the 29 January 1991 declaration "On the
Obligations of the Republic of Lithuania Arising out of
International Treaties in Spheres of Diplomatic and Consular
Relations", issued by its Supreme Council ("Valstybės Žinios",
No.4-115, 1991), these treaties should have the force of law.
Such provision however contradicts Part 3 of Article 138 of the
Constitution, and Part 1, Article 7 of the Constitution
provides for that "any law or other statute which contradicts
the Constitution shall be invalid".
It is also pointed out in the petition that in Part 4,
Article 7 of the Law in dispute it is established that "The
Government of the Republic of Lithuania shall submit by its own
decision international treaties of the Republic of Lithuania to
the Supreme Council of the Republic of Lithuania for
ratification", and while item 2 of Article 84 of the
Constitution provides for that the President of the Republic
"shall sign international treaties of the Republic of Lithuania
and submit them to the Seimas for ratification". Other articles
of the Constitution do not directly specify what entities may
submit international treaties to the Seimas for ratification,
therefore the petitioner has doubts whether Part 4 of Article 7
of the Law "On International Treaties of the Republic of
Lithuania" in accordance with the contents of the norm does not
contradict item 2 of Article 84 of the Constitution.
Conforming to the above mentioned motives, the petitioner
requests the Constitutional Court to investigate whether:
1) Article 12 of the Law "On International Treaties of the
Republic of Lithuania" according to the extent of regulation
does not contradict Part 3 of Article 138 of the Constitution;
2) Part 4 of Article 7 of the same Law in accordance with
the contents of the norm does not contradict item 2 of Article
84 of the Constitution.
II
In the process of preparation of the case for the hearing,
the representative of the petitioner - the Government has
pointed out that Part 3 of Article 138 of the Constitution,
stating that "international agreements which are ratified by
the Seimas of the Republic of Lithuania shall be the
constituent part of the legal system of the Republic of
Lithuania", has singled out one way of concluding treaties: the
decision of the Seimas to ratify a treaty. In the opinion of
the representative of the petitioner, the procedure of
ratification of a treaty may be considered as the process of
legislation, because the decision of the Seimas, after the
adoption of which the norms of international treaties become
binding in the Republic of Lithuania, is necessary for
ratification. While in the Law in dispute, besides
ratification, two more ways of conclusion of international
agreements are provided: after confirmation thereof by the
Government or the Ministry of Foreign Affairs in the procedure
established by the Government and after accession to an
international treaty.
The representative of the petitioner has explained during
the process of the court hearing, that the Constitution, while
consolidating the principle of division of powers, singled out
the legislative and executive powers' functions and competence
in accordance to which executive power institutions may not
approve normative acts which by their legal force equates with
the acts of the legislative institution. That means that only
international treaties that are ratified by the Seimas may have
the force of law, therefore Article 12 of the Law in dispute
according to the extent of regulation partly contradicts Part 3
of Article 138 of the Constitution.
The representative of the petitioner also doubts whether
Part 4, Article 7 of the Law in dispute, stating that "The
Government of the Republic of Lithuania shall submit by its own
decision international treaties of the Republic of Lithuania to
the Supreme Council of the Republic of Lithuania for
ratification" (now to the Seimas), does not contradict item 2
of Article 84 of the Constitution. The representative of the
petitioner bases this doubt on the fact that item 2 of Article
84 of the Constitution provides for that the President of the
Republic "shall sign international treaties of the Republic of
Lithuania and submit them to the Seimas for ratification",
while other articles of the Constitution, which determine the
competence of the Government, do not directly specify whether
it may submit a treaty to the Seimas for ratification.
The representative of the petitioner raises the
presumption that item 2 of Article 84 of the Constitution may
be also interpreted so, that only the President of the Republic
"may submit the treaties signed by himself to the Seimas for
ratification", however, according to the Constitution and the
Law on the Constitutional Court, only the Constitutional Court
has the right to interpret the Constitution.
Taking into consideration the above mentioned and the
general principle, according to which the institutions of power
have the right to act only so as it is allowed by law (the
Constitution), the representative of the petitioner thinks that
Part 4 of Article 7 of the Law "On International Treaties of
the Republic of Lithuania" according to its contents
contradicts item 2 of Article 84 of the Constitution.
The Constitutional Court
holds that:
Legal system of the Republic of Lithuania is grounded on
that any law or other legal act, as well as international
treaties of the Republic of Lithuania must not contradict the
Constitution, as it is established in Part 1, Article 7 of the
Constitution that: "Any law or other statute which contradicts
the Constitution shall be invalid". This constitutional
provision of itself cannot invalidate a law or an international
treaty but it requires that the provisions thereof would not
contradict the provisions of the Constitution. Otherwise the
Republic of Lithuania would not be able to ensure legal defence
of the rights of the parties of international treaties, which
arise from those treaties, and this in its turn would hinder
from fulfilling obligations according to the concluded
international treaties. This would contradict the 1969 Vienna
Convention on the Law of International Treaty, which was
undertaken to respect and execute by the Republic of Lithuania
according to the 29 January 1991 Declaration of the Supreme
Council "On the Obligations of the Republic of Lithuania
Arising out of International Treaties in Spheres of Diplomatic
and Consular Relations". At the same time the most important
principles of said Convention would be also violated, namely:
pacta sunt servanda - "every treaty is binding to be performed"
(Article 26 of the Convention) and "a party may not invoke the
provisions of its internal law as justification for its failure
to perform a treaty" (Article 27 of the Convention). It is
important therefore that consecutive order of concluding,
implementing and terminating international treaties would be
established and that it would be in conformity with the
provisions of the Constitution concerning international
treaties as well as principles and norms of this sphere of
international law.
In the Republic of Lithuania the procedure of conclusion,
implementation and termination of international treaties is
regulated by the disputable in this Case Law "On International
Treaties of the Republic of Lithuania" which was adopted on 21
May 1991, i.e. till the coming into force of the Constitution
of the Republic of Lithuania. In this Law the authorizations
for conclusion, implementation and termination of international
treaties, which has been granted to those institutions of
power, that during the adoption of the Law have been
functioning according to the system of power consolidated in
the Provisional Basic Law of the Republic of Lithuania, are
established. Pursuant to the Constitution being in force, the
said system has been changed in essence by establishing the
institution of the President of the Republic as of the Head of
State. The disputable Law has not been changed, taking into
consideration this new system of power, i.e. it has not been
coordinated with the Constitution, as it is required in Article
2 of the 6 November 1992 Law of the Republic of Lithuania "On
the Procedure for the Enforcement of the Constitution of the
Republic of Lithuania": "Laws, other legal acts, or parts
thereof which were in effect on the territory of the Republic
of Lithuania prior to the adoption of the Constitution of the
Republic of Lithuania, shall be effective provided that they do
not contradict the Constitution and this law, and shall remain
effective until they are either declared null and void or
coordinated with the provisions of the Constitution".
Upon considering the petition of the Government submitted
to the Constitutional Court requesting to investigate whether
the provisions of Articles 7 and 12 of the Law "On
International Treaties of the Republic of Lithuania" do not
contradict the Constitution, it is necessary to take into
account not only the formal comparison of the Constitution and
the appropriate text of the articles of the disputable Law,
indicated in the petition, but, having in mind that the
Constitution is an integral statute (Part 1, Article 6 of the
Constitution), also to that whether the provisions of this Law
according to their meaning contradict both the indicated
articles of the Constitution and the provisions which
consolidate authority of newly established institutions of
power. It is possible to answer this question only after having
considered the provisions of the Constitution which consolidate
the system of the institutions of power and their competence
which has been changed.
I. On the compliance of Article 12 of the Law of the
Republic of Lithuania "On International Treaties of the
Republic of Lithuania" with Part 3, Article 138 of the
Constitution of the Republic of Lithuania.
1. It is established in Part 3 of Article 138 of the
Constitution that: "International agreements which are ratified
by the Seimas of the Republic of Lithuania shall be the
constituent part of the legal system of the Republic of
Lithuania", and it is stated in Article 12 of the Law "On
International Treaties of the Republic of Lithuania" that:
"International treaties of the Republic of Lithuania shall have
the force of law on the territory of the Republic of
Lithuania."
Both Article 138 of the Constitution and Article 12 of the
Law in dispute allow to affirm that the system of coordination
of international and national law, chosen in the Republic of
Lithuania, is based on the rule that international treaties are
subject to transforming in the legal system of the country (are
being incorporated into it). Such way of implementing
international treaties is consolidated both in the
Constitution, and in the disputable Law. It is established in
the Constitution that ratified international treaties are
constituent part of the internal legal system, and in the
disputable Law the force of law is recognized for international
treaties. Both these propositions signify that legal mechanism
is being created in the Republic of Lithuania, with the help of
which in the national law of the Republic of Lithuania
international obligations thereof are being implemented.
The proposition adduced in the Government's petition, that
"pursuant to the 1969 Vienna Convention on the Law of
International Treaty, to which Lithuania acceded by the 29
January 1991 Declaration of the Supreme Council of the Republic
of Lithuania "On Obligations of the Republic of Lithuania
Arising from Interstate Treaties", these treaties should have
the force of law", cannot be considered as well-founded. The
Constitutional Court specifies that any provision of the 1969
Vienna Convention does not establish that any treaties in the
State internal law must have the force of law or any other
force. The Vienna Convention establishes only two main
principles in the sphere of implementing international
treaties, namely: in Article 26 - the principle pacta sunt
servanta and in Article 27 -the principle which does not allow
to justify nonfulfillment of a treaty by the norms of the
national law.
The principle pacta sunt servanta does not mean that
different states may not choose different ways and forms of
implementation of the norms of international law in their
internal legal system. This is the sovereign right of every
state. In legal systems of states therefore various ways and
forms of implementation of the norms of international law in
national law are applied. Besides, it is recognized that the
validity of the international law in general and concretely of
international treaties in the legal system of the state shall
always depend on the national law.
2. Having compared the contents of the norms of Part 3,
Article 138 of the Constitution and those of Article 12 of the
disputable Law, the conclusion is to be made that according to
the meaning they partly coincide, as both confirm that the
treaties ratified by the Seimas shall acquire the force of law.
Thus, the provision of Article 12 of the disputable Law "shall
have the force of law" does not contradict the provision of
Part 3, Article 138 of the Constitution "shall be the
constituent part of the legal system of the Republic of
Lithuania". The Constitutional Court already explained both
these provisions in its 24 January 1995 Conclusion "On the
compliance of Articles 4,5,9,14 as well as Article 2 of
Protocol No 4 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms with the Constitution of
the Republic of Lithuania"
(Official Gazette "Valstybės Žinios" No 9-199, 1995). It
is specified in the Conclusion that: "With respect to the
Convention, this constitutional provision implies that upon its
ratification and enforcement the Convention will become the
constituent part of the legal system of the Republic of
Lithuania and shall be applied in the same way as laws of the
Republic of Lithuania". This is subject to application not only
to the said Convention but to all ratified international
treaties of the Republic of Lithuania, therefore the provision
of Article 12 of the disputable Law "shall have the force of
law", when it is applied to the international treaties ratified
by the Seimas, does not contradict the Constitution.
3. Having compared the regulated subject in Part 3,
Article 138 of the Constitution and in Article 12 of the
disputable Law, it is obviously seen how it differs according
to the extent. Only one kind of international treaties is
spoken about in Article 138 of the Constitution - the treaties
ratified by the Seimas, while in Article 12 of the disputable
Law international treaties are not classified into different
kinds. It is stated in said Article 12 that: "International
treaties of the Republic of Lithuania shall have the force of
law on the territory of the Republic of Lithuania". The
Constitutional Court points out that the classification of
international treaties into different kinds is an objective
phenomenon which has its legal logical and constitutional
substantiation. Pursuant to the Constitution only the
legislator by the way of ratification may decide which statute
of international law shall be the constituent part of the legal
system of the Republic of Lithuania having the force of law.
The Seimas shall have the right of legislation and the
legislation shall not be delegated to any other institution of
the State power. Upon recognizing that non-ratified
international treaties have the force of law, the prerogative
of the Seimas to pass laws would be negated. It is also
important that the treaties which must be ratified have the
essential significance to the further creation of the legal
system. Therefore, the provision of Article 12 of the Law in
dispute that "international treaties of the Republic of
Lithuania", i.e. also the international treaties which are not
ratified by the Seimas, have the force of law, unfoundedly
extends their juridical force in the system of sources of law
of the Republic of Lithuania. From this standpoint the
provision of Article 12 of the disputable Law that
international treaties of the Republic of Lithuania "shall have
the force of law" contradicts Part 3 of Article 138 of the
Constitution.
The Constitutional Court also points out that after the
Constitution coming into force, the legal force of the
concluded and enforced but non-ratified international treaties
of the Republic of Lithuania does not remain indeterminate, as
it is stated in the petition of the Government. They have force
which is obligatory for entities of legal relations and which
is characteristic of every legal act. However, their juridical
force differs from ratified treaties in such fact, that they
must be in compliance not only with the Constitution but also
with the laws.
4. It should be noted that in the laws of the Republic of
Lithuania the individual category of international
interdepartmental agreements (treaties) is not singled out,
however, in item 11 of the 7 January 1992 Resolution No 5 of
the Government "On the Procedure of Implementation of the Law
on International Treaties of the Republic of Lithuania"
("Valstybės Žinios" No 12-321, 1992) and in item 134 of Work
Regulations of the Government of the Republic of Lithuania
("Valstybės Žinios" No 63-1238, 1994) international agreements
concluded on behalf of ministries or institutions of the
Government are spoken about. Practically, in most cases these
are agreements of ministries or institutions of the Government
concerning cooperation with relevant institutions of foreign
States. Such agreements do not create international obligations
for the Republic of Lithuania and they therefore are not
international treaties in the meaning of item 1a of Article 2
of the Vienna Convention: "..."treaty" means an international
agreement concluded between States in written form and governed
by international law..." The wording "concluded between States"
specifies that an international treaty may be concluded only by
the persons which have constant or ad hoc authority to
represent the State. On this matter it is established in
Article 8 of the Vienna Convention: "An act related to the
conclusion of a treaty performed by a person who cannot be
considered ... as authorized to represent a State for that
purpose is without legal effect unless afterwards confirmed by
that State." Meanwhile, no special authorization is necessary
for said agreements, thus they have no force of the source of
law either from the standpoint of international law or of the
law of the Republic of Lithuania.
II. On the compliance of Part 4 of Article 7 of the Law
"On International Treaties of the Republic of Lithuania" with
item 2, Article 84 of the Constitution of the Republic of
Lithuania.
1. It is established in item 2 of Article 84 of the
Constitution that the President of the Republic "shall sign
international treaties of the Republic of Lithuania and submit
them to the Seimas for ratification". These authorizations of
the President of the Republic are ways of execution of his
general professional competence consolidated in item 1 of
Article 84 of the Constitution ("The President of the Republic
shall: 1) settle basic foreign policy issues and, together with
the Government, implement foreign policy"). That also ensues
from the general status of the President of the Republic which
is established in Article 77 of the Constitution: he is the
Head of State. Part 4 of Article 7 of the disputable Law, in
which it is established that "The Government of the Republic of
Lithuania shall submit by its own decision international
treaties of the Republic of Lithuania to the Supreme Council of
the Republic of Lithuania for ratification", would contradict
whole item 2 of Article 84 of the Constitution, in case the
exceptional integral (conjunctive) authorization of the
President of the Republic to sign and submit his signed
international treaties to the Seimas for ratification were
provided for in this item. The conclusion should be made that
this is not one united authorization but two independent
authorizations: 1) to sign international treaties and 2) to
submit international treaties signed by the President of the
Republic himself and by other authorized officers of State to
the Seimas for ratification. Here the essential question is
whether only the President has such rights, i.e. whether it is
prohibited for other institutions of State power to sign
international treaties and to submit them to the Seimas for
ratification.
2. The fact that the Prime Minister is entitled to sign
international treaties can be judged from the
constitutional provisions related to the authorizations of the
Government in the sphere of foreign policy and international
relations. It is established in item 1 of Article 84 of the
Constitution that the President of the Republic "shall settle
basic foreign policy issues and, together with the Government,
implement foreign policy". The second provision of this item
means that not only the President, but the Government as well,
has the concrete authorizations to conclude international
treaties, as without having them it is impossible to implement
foreign policy. It is established in item 6 of Article 94 of
the Constitution that the Government "shall establish
diplomatic relations and maintain relations with foreign
countries and international organisations". These relations are
also established and consolidated by international treaties.
The right of the Prime Minister to sign treaties is also
substantiated by the provision of Part 1 of Article 97 of the
Constitution that "The Prime Minister shall represent the
Government of the Republic of Lithuania".
Such procedure of representation while concluding
international treaties is generally accepted in international
law as well. It is established in item 2 of Article 7 of the
Vienna Convention:
"In virtue of their functions and without having to
produce full powers, the following are considered as
representing their State:
a) Heads of State, Heads of Government and Ministers of
Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty."
3. The provision of item 2, Article 84 of the Constitution
that the President of the Republic "submit them to the Seimas
for ratification" should be evaluated otherwise. It is not
pointed out in other articles of the Constitution, which
establish the competence of the institutions of State power,
that the Government or any other entities of power are entitled
to submit international treaties to the Seimas for
ratification. This right in accordance with the Constitution as
the integral statute is the prerogative of the President of the
Republic. Therefore, Part 4 of Article 7 of the disputable Law
contradicts the provision of item 2, Article 84 of the
Constitution that the President of the Republic "submit them to
the Seimas for ratification".
Such interpretation of the contents of the constitutional
provisions and the reciprocity thereof is based on the change
of authorizations of power institutions as well as of the
contents of interrelations during the process of constitutional
reform.
The former system of the institutions of power established
in the Provisional Basic Law of the Republic of Lithuania and
authorizations thereof have been changed in essence after
coming into force of the Constitution, taking into account real
implementation of the principle of differentiation of powers.
However, till now the process of conclusion of international
treaties and especially of the ratification thereof, which
would comply with the said provisions of the Constitution, is
not concretely regulated by order of legislation. Therefore,
while fulfilling the requirements established in Articles 2 and
3 of the 6 November 1992 Law of the Republic of Lithuania "On
the Procedure for the Enforcement of the Constitution of the
Republic of Lithuania" to coordinate the laws adopted until the
enforcement of the Constitution with the provisions of the
Constitution, the process of ratification of international
treaties should be clearly determined on the basis of the
Constitution and it should be established how the Government
and other entities of power which conclude international
treaties of the Republic of Lithuania should participate in
said process.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognize that:
1) the provision of Article 12 of the Law of the Republic
of Lithuania "On International Treaties of the Republic of
Lithuania" that international treaties of the Republic of
Lithuania "shall have the force of law" does not contradict the
Constitution of the Republic of Lithuania as much as it is
applied to international treaties ratified by the Seimas;
2) the provision of Article 12 of the said Law that
international treaties of the Republic of Lithuania "shall have
the force of law" according to the extent of the regulated
subject contradicts Part 3 of Article 138 of the Constitution
of the Republic of Lithuania as much as it is applied to
international treaties which are not ratified by the Seimas;
3) Part 4 of Article 7 of the said Law establishing that
"The Government of the Republic of Lithuania shall submit by
its own decision international treaties of the Republic of
Lithuania to the Supreme Council of the Republic of Lithuania
for ratification" contradicts the provision of item 2, Article
84 of the Constitution of the Republic of Lithuania that the
President of the Republic "submit them to the Seimas for
ratification".
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.