L. Adamovich
President of the Constitutional Court of Austria

Before entering the specific Austrian situation related to this topic, I would like to clear in advance on what this contribution will focus. The term ”international legal obligation” comprises obligation due to both international customary law and treaties. Let me cast aside the questions dealing with international customary rules, which are in Austria – like in many other constitutions – regarded as an integral part of domestic law (Art. 9.1), and concentrate instead on the conventional ones.

And there is another important remark to make in advance, which is that the following explanations on this topic do not refer to and may therefore not be mixed up with the problem of implementing (secondary) Community law. The latter will be mentioned later on in this paper.

There are many interesting legal questions emerging in the context of international treaties and their implementation such as:

• How to implement them into national law (general and special transformation)?
• When is a treaty directly applicable?
• How do international treaties rank within the national legal system?
• In which case does a treaty require constitutional rank?
• Which organs are to be invested with the power to conclude treaties in a federal state
• Implementation of international human rights agreements; European Convention of HR
• Can a treaty provoke a total revision of a constitution?
• Accession to the European Union

I) Implementation of Treaties/International Obligations; Direct Applicability

The Federal Chancellor is obliged to publish treaties such as specified in Art. 50 in the Federal Law Gazette (Art. 49 of the Constitution) in so far as the National Council (Nationalrat) did not decide that a treaty should be published in another appropriate manner. In this case the Federal Chancellor has to publish the Council’s resolution in the Federal Law Gazette.

Up until a constitutional amendment in 1964 all international treaties became part of the national legislation through their publication in the Official Law Gazette (general transformation; today also called ”adoption”). This method gave, of course, no answer to the key question of whether a treaty was directly applicable. If the wording of an international treaty addresses, for instance, only the organs of the legislative one can exclude that such a treaty is directly applicable. In this case the direct application is obviously not intended by the contracting parties themselves. But the exclusion of a treaty’s direct application might also be due to the fact that the treaty does not comply with domestic constitutional law, which is the case in Austria. Pursuant to Article 18 of the Constitution, ”the entire public administration shall be based on law”. This important legal doctrine requires that national norms (law statutes and regulations/ordinances) must be determined (precise and explicit) to a degree that their application is not left open to the discretionary power of the (administrative or judicial) authorities.

In 1964 the constitutional legislator tried to cope with this problem by amending Article 50. He introduced the so-called ”reservation of implementation”. Since then the National Council approving an international treaty is authorized to determine that a treaty has to be implemented by (national) acts of legislation. Analogically the Federal President was authorized to order this particular way of implementation when concluding treaties not subject to the National Council’s approval (Art 66.2). Additionally the constitutional legislator installed explicitly the jurisdiction of the Constitutional Court to review the legality of treaties (Art. 140a of the Constitution).

This amendment could, of course, not solve all questions. Rather, it opened some more scholarly disputes as to the significance of the ”reservation of implementation.” Consequently, all treaties under the regime of Article 50 must be approved with such a reservation if they do not grant a sufficient legal basis in the meaning of the Article 18 doctrine. There is no answer to the question whether this is actually exercised or not. The newly installed jurisdiction of the Constitutional Court (Art. 140a) played - up until now - no important role at all within the Court’s adjudication. Although all treaties are subject to the Court’s control, even those approved with a reservation of implementation, the Court never entered a substantial review of a treaty. Yet, one can draw an interesting conclusion from the wording of Art. 140a - as one law professor, Mr. Novak, did - stating that if the Court may review all treaties, even those with reservations, they must have already turned into national norms although this was not at all the original intention of the constitutional legislator.

2) Standing of International Treaties in Domestic Law; Constitutional Rank

The main reason for the 1964 amendment of the Constitution was to solve another essential question: how to put treaties in the rank of constitutional law. It was a judgment of the Constitutional Court that gave rise to clarify the implementing procedure of treaties modifying or supplementing the Constitution. In its broadly discussed judgment (VfSlg. 4049/1961) the Court denied - quite unexpectedly to everyone - the constitutional rank of the European Convention for the Protection of Human Rights (ECHR) even though this rank had been the clear intention of Parliament approving this special agreement. The Court found that Parliament had missed its (constitutional) obligation to specify the treaty explicitly as ”modifying the Constitution”. An obligation that was (and still is) required for the case that a (national) constitutional law is enacted. But up until the Court’s judgment this obligation was interpreted in a way that it was not applicable to treaties.

For a better understanding I should give some explanation of Austrian constitutional peculiarities:

Unlike other constitutions (e.g. Bonner Grundgesetz) the Austrian one contains neither a strict rule to incorporate constitutional amendments in the Constitution nor a perpetuity clause. However, the Austrian Constitution - just like any constitution - is based on certain fundamental principles that form the core of the state’s political system. The substantial change or removal of one or more fundamental principles provokes an overall amendment (’total revision’) of the Constitution, which is subject to a referendum to be held pursuant to Art. 44. 3. Constitutional law (causing a total revision) that is not obeying this strict procedural request is subject to the Constitutional Court’s review.

Thus, the Austrian Constitution distinguishes between two different levels of federal constitutional law, the ’fundamental constitutional order’ consisting of the fundamental principles, and ordinary constitutional law. Based on the idea of the ”pyramid of norms” - developed by Adolf Merkl and Hans Kelsen - there is ordinary law beneath the rank of constitutional law while regulations (normative acts issued by administrative organs) are subordinate to law.

This leads to the question which treaty is modifying or supplementing the Constitution or does a treaty require constitutional rank? Pursuant to Art. 3 any change in the Federal territory can be done only by positional law. Conventional rules authorizing organs of another state or organs of an international organization to perform an act of sovereignty inside Austria or - vice versa - rules authorizing Austrian state organs to perform an act of sovereignty outside of Austria were also requiring positional laws or rather treaties containing provisions amending/modifying the Constitution. As this provoked an increasing number of such treaties the constitutional legislator reacted in 1981. He introduced the possibility that single sovereign rights of the Federation can be transferred to intergovernmental organizations and their authorities/organs by (ordinary) law or by a treaty requiring approval according to Art. 50 and the possibility that the activity of foreign states’ organs inside Austria or the other way around can be regulated within the framework of international law (Art. 9.2 of the Constitution).

3. a) Powers in the Field of International Relations

According to the system of the Austrian Constitution’s distribution of powers (Art. 10 - 15 of the Constitution) the legislative and executive jurisdiction of "external affairs including political and economic representation towards other countries, in particular the conclusion of international treaties” is allocated to the Federation (Bund). This jurisdiction laid down in Art. 10.1.2 of the Constitution enables the Federation to conclude international treaties on each and every matter irrespective of the distribution of powers at the internal level.

Only quite late - through a constitutional amendment in 1988 - the federal states (Länder) were also allocated restricted power to enter into state treaties with Austria’s immediately neighboring states or their entities. Such treaties can only be concluded on Länder matters (= matters falling within their legislative powers at the internal level) and may be entered only with the agreement and under the supervision of the Federation.

The distribution of powers comes into play again in the case that the Federation concludes an international treaty which requires executive measures by the Länder or which affects the autonomous sphere of power of the Länder. In this case the Länder must be given the opportunity to present their views before the treaty is concluded (Art. 10.3).

3. b) State Organs Concluding International Treaties

In Austria - as in most republican systems - it is the Head of State, the Federal President, who concludes (”ratifies”) international treaties (Art. 65.1 of the Constitution).

He can authorize the Federal Government or the competent members of the Federal Government to conclude certain categories of treaties (Art. 66.2). These are agreements of the government and so-called ”administrative agreements” which are not subject to the regime of Art. 50 of the Constitution. According to this constitutional statute political treaties and treaties modifying and/or complementing (existing national) law must be approved by the National Council (Nationalrat; first chamber of Parliament). Vice versa, Art. 50 stipulates that international treaties which affect the exclusive preserve of the Länder need to be approved by the Federal Council (Bundesrat; second chamber of Parliament).

A political treaty is a treaty that affects the existence of the state, its territorial integrity, its independence, its position and the part it plays within the international community. A treaty is modifying or complementing existing national law if it has contents (and may it only be one statute of the treaty) that could only be enacted as a law.

4) Implementation of The European Convention of HR

The constitutional amendment of 1964 reacted to the Court’s judgment declaring expressly the constitutional rank of the Convention (and Protocol) dating it back to 1958 (retrospective effect), which was the year Austria had joined and implemented the treaty.

Since then the ECHR is a source and, as it turned out, the most important (national) source of human rights. And this is another Austrian specialty: at least as far as I know Austria is still the only country where the ECHR is incorporating on the level of constitutional law.

The Convention has been of outstanding importance to the Constitutional Court’s precedents (case law) in the last decennaries. The Austrian Constitutional Court follows the Human Rights Court’s ease law, which was not always easy. The only exception is - as already mentioned - the Human Rights Court’s extensive interpretation of the procedural guaranties safeguarded by Art. 6 ECHR (”civil obligations”); an interpretation that does not allow congruency with the Austrian system of administrative jurisdiction.

The Constitutional Court’s orientation on decisions of the HR Court goes far beyond the mere interpretation of the Convention. For instance, the principle of proportionality of state interventions which the Human Rights Court imputes to justifications for interference with the Convention’s rights is applied to cases which do not concern the Convention’s rights at all but basic rights of (autonomous) national sources.

In I972 Austria ratified the International Convention on the Elimination of all Forms of Racial Discrimination, which contained some provisions modifying the Constitution, and implemented the Convention in the following year by issuing a special constitutional law. For a long time this implementation of constitutional law did not find much attention. Yet, in the 1ist years the Constitutional Court ”discovered” it developing a kind of equal protection clause applying to foreigners. As the wording of the equal protection clause enshrined in the Constitution refers to ”nationals” only the Court started to close this gap by establishing the principle that discrimination of foreigners among each other must be objectively justified, a principle binding both the legislative and administrative powers.

5) Accession to the European Union

A great deal of constitutional problems emerged when Austria decided to accede to the EU and as a consequence of her accession. The most important questions in this context run as follows:

• Which measures must be taken on the constitutional level with regard to the accession?
• Are barriers to integration to be established?
• What is the Constitutional Court’s position in view of Community law?
• Who represents Austria in the European Council? Is it to be considered as an ”international representation” in the meaning of Article 65 sub-paragraph 1 of the Federal Constitutional Law, which is a prerogative (privilege, special right) of the Federal President?

These questions could partly be solved by the Constitutional Court’s judiciary and partly be solved on a political level. Yet the way Austria chose for acceding to the EU, namely that a special Federal Constitutional Law empowering to conclude a treaty on the accession was enacted and submitted to a referendum, is still discussed controversially.

As the Austrian accession to the EU caused a total revision of the Federal Constitution, a special Federal Constitutional Law had to be enacted and was submitted to a referendum. Article II of this Federal Constitutional Law replaces Article 50, sub-paragraph 3 B-VG, which is usually applied on the conclusion of treaties amending or supplementing constitutional law. Article 50, sub-paragraph 3 B-VG provides that such treaties or any treaty provisions must be explicitly specified as ”amending the constitution,” an obligation that does not exist for the Accession Treaty.

Consequently, Community law (primary and secondary) is not part of Austrian constitutional law and was not incorporated into the hierarchy of Austrian legal norms. This means that there are two legal systems valid save that Community law takes primacy over national law. As Community law is regarded as a legal system of its own it may not be reviewed (neither primary nor secondary law); only national legal acts can be subject to constitutional review.

Not even in the case that the organs of the Communities issue a legal act which is far beyond their jurisdiction (”ultra vires”-act) the Constitutional Court could review such an act. It could only consider such an act as void but would have to reject any application for review as inadmissible.

Although the Constitutional Court still has the jurisdiction of judicial review as far as national law is concerned, the jurisdiction does not extend to national law, which is a compulsive consequence of (secondary) Community law. Only if Community law leaves space to the national legislature (or the national administrative authorities issuing regulations) implementing directives (secondary Community legislation) the Court’s jurisdiction remains as it was before the accession to the EU but in addition to the one of the ECJ.