Professeur Jacques ROBER
President honoraire de l’Universite de Paris II
Juge du Conseil constitutionnel of France,
Member of the Venice Commission
We shall consider three fundamental questions.
- What is the value of this international standard?
Acceptance of International regulations in the internal legislation is related to the domain of public freedoms.
This acceptance raises two problems:
A. Introducing the international standard of human rights into the national legislation.
Each country has its own techniques and modes of introducing the international conventions into its internal legislation. However, they actually do not differ fundamentally. We deal here with the same procedures of approbation and ratification. The originality is contained at the respective place, at the heart of the procedure, in the major constitutional statements or in whether to call or not to call a popular referendum.
Let us have a few examples:
In Belgium, before a treaty would come into force, it must, in some consideration, be approved by the legislative chambers and/or by the community councils, depending on the case. Following the approbation, the agreement is normally ratified by the King and published in the Belgian «Moniteur».
Article 16 of the Law of Aug. 8, 1980 prescribes in its turn that the agreements related to the cooperation in cultural matters, educational matters or matters personalizable should get the consent of the Conseil de la Communaute francaise, of the Conseil flamand, or of both Counseils if both of them are concerned. Agreements related to the matters mentioned which concern the German-speaking Community are to be approved by the Conseil de la Communaute germanophone
The legislative Chambers and the Community Councils give their agreement according the accepted practice, by voting a law or a decree, resp., by a simple majority. The law or degree put forward for approbation as a rule contain a single article on the terms of which the agreement in question will «produce an entire and complete effect».
In principle, it is following the approval by the legislative assembly that the agreement will be ratified.
In Poland, the ratification is effectuated by the President of the Republic, with the previous agreement with the legislative bodies if financial problems are involved or the need to change the law.
In Switzerland, the ratification that the Conseil federal must propose to the assembly is implemented by a simple ruling or through a selective referendum.
On the terms of Article 8 of the Loi fondamentale portugaise, the regulations featured in the international conventions to be ratified or approved, enter into force internally following the publication. One can distinguish the agreements having a legislative value and simpler agreements having a procedural character. Approval of agreements is done by the L’assemblee de la Republique (Article 164 of the Constitution) by adopting a resolution, and those of the accords are passed by governmental decrees (Art. 200 of the Constitution).
In Turkey, Article 90 of the Constitution states that the conventions «to be applied» have the force of law. The Council of the State can, on demand by the Prime minister or the President, comment on the agreement that still has to be ratified.
In Luxembourg, Article 37-2 of the Constitution implies that the devolutive agreements of exercising the sovereignty and reserved to the legislative, executive and judiciary authorities, must be adopted by the qualified majority of the deputies.
In France, the agreements related to human rights do not obey the specific rules of introduction into the internal order. They are submitted in constitutional statements applicable to the entirety of the international engagements.
According to Article 52 of the Constitution, the President of the Republic negotiates and ratifies the agreements. He is informed of all negotiations resulting in the conclusion of an international agreement not subject to a ratification.
Article 53 enumerates the agreements that can be ratified or approved only after authorization given by the law. We deal here with the agreements of peace, commerce, accords of international organization, state finances, of those that modify the legislative statements, of those related to the personal situations, alienation, exchange or merger of lands.
With regard to these statements, the introduction into the internal legislation of the agreements on human rights requires no intervention in principle of constitutional law and normally results from a law authorizing the ratification with a subsequent decree for publication.
«The intervention of a constitutional law has actually never been required, although it could never be totally excluded theoretically. One can put forward two hypotheses:
In the first place, inasmuch as the constitutional authority is sovereign, it can incorporate an agreement in the internal order by a constitutional law in order to confer to it a value equal to that of the Constitution. Such an eventuality has not been verified to this day, with regard to an agreement in its entirety. All the more so, one can be reminded that when developing the Constitution of 1958, it was intended to make a reference in its Preamble of the Universal Declaration of Human Rights. However, this suggestion found no support. On the contrary, at the moment of ratification of the Treaty of Maastricht an entire new Chapter of the Constitution was dedicated to the European Union.
Secondly, there is a controversial question to know if a treaty containing a clause contrary to the Constitution cannot be ratified by virtue of a constitutional law that would bring about, if needed, an amendment of the Constitution, so that it would not be necessary in a similar case that an appropriate revision of the Constitution precede the intervention of the law authorizing the ratification of the treaty in question.
Secondly, there is a controversial question to know if a treaty containing a clause contrary to the Constitution cannot be ratified by virtue of a constitutional law that would bring about, if needed, an amendment of the Constitution, so that it would not be necessary in a similar case that an appropriate revision of the Constitution precede the intervention of the law authorizing the ratification of the treaty in question.
The intervention of a common law authorizing the ratification of a treaty is a normal procedure. It is imposed dealing with a treaty with regard to human rights, since the substance of such an international engagement will touch upon a domain reserved to a legislator by virtue of Article 34 of the Constitution. It reverts in effect to the Law to register the rules concerning «the fundamental guarantees accorded to the citizens so as to exercise the public liberties».
It is to be emphasized that the law authorizes the ratification which is the competence of executive authority.
The ratification once operated, the treaty is opposable in the internal order only when it is published. The applicable procedure requires in principle the interference of a decree published by the Journal officiel de la Republique francaise.
However, at what «level» is the international standard introduced into the internal order?
II - The level of integration
The legislative value, super-legislative value, sub-constitutional or constitutional value?
Four options are presented in the variety of the classical state solutions.
Let us say, at the start we shall introduce some clarifications, so, generally it seems that most states recognize the priority of the International Convention over the common law, without however granting it a constitutional value.
But more often than not the states which give to the international standard only a juristic value of a law, introducing it in the internal order.
Some examples picked up in the diversity of the options retained.
In Austria, the European Convention on human rights and the first protocol were signed by the Federal President and ratified by the Conseil national. Since the text of a constitutional level have to be expressly indicated as such, the European Convention of Human Rights did not become recognized as having the constitutional rank by the Court which had also rejected a direct application of its text. It was only in 1964 (reform of the federal Constitution) that the Convention was raised to constitutional rank.
On the other hand, Article 50 of the Constitutional law has been modified during the same reform in the sense that the international treaties of the constitutional level must be indicated as such at the moment of ratification by the Conseil national.
All additional protocols of the Convention safe the eighth have been ratified at the constitutional level.
Meanwhile, all the UN covenants have a federal level. Thus, the UN covenants are not directly applicable, but must be transposed into the internal law by the applied law prior to the personal rights being guaranteed. Such applied laws have not been voted because Austria thinks that all the rights guaranteed by the UN covenants are as good as accepted by the Austrian internal order.
In Germany, the human rights that are guaranteed by the Treaty of International Law as the European Convention for the Protection of Human Rights, the International Convention of the Social and Political Rights, and the International Convention of Economic, social and Cultural rights are introduced into the German internal legislation by the law of approval pursuant to Article 59.II of the Fundamental Law. The treaties thus have the values equal to federal laws, superior to the Law of the Lands. Meanwhile, the laws ulterior to the treaties have a force superior to those, however, all the same, the principle of favorable interpretation is applied to the treaties by the courts that interpret the law.
And finally, the international regulations of human rights in the German juristic order enjoy a rank superior to the laws, when they have the quality of general rules of the international public legislation and create directly the rights and obligations for the population of the federal territory. Thus, the international regulations protecting the human rights are superior to the laws but inferior to the fundamental law. However, in any case, the Constitution secures an almost super-constitutional level to the human dignity, to those inviolable fundamental and sacred rights, because they cannot become subject to revision.
In Italy the international regulations introduced into the internal order have a value which is determined by the value of the standard that authorizes its integration. For instance, we see that the «regulations introduced» in the sense of Art. 10 of the Constitution have a value superior to the ordinary internal regulations. Contrastingly, the international regulations introduced through executive measures and having the value of common law must be considered unconstitutional if they conflict with the internal constitutional regulations.
The doctrine admits that the generally accepted international law as referred to by Article 10 of the Constitution, contains not only the constitutional regulations but also the regulations of a general character, like the general legal principles recognized by the civilized nations. Thus, the greater part of the doctrine considers that the international regulations concerning the human rights enjoy the rank of the constitutional regulations (Arts. 2 and 10 of the Constitution), while most of the former were introduced by executive order and have the rank of common law.
Thus, will the regulation introduced into the internal juristic order of the state, the international regulation with regard to human rights, have the influence, and to what measure, upon the ulterior determination by the national constitutional judge?
III - The effect of the international regulation concerning the human rights upon the constitutional judge.
The intensity of this influence is variable.
The positions are both diverse and stratified. Here are a few characteristic examples.
It is considered in Belgium as to the European Convention of Human Rights that most of the statements of the 1st Chapter and the first four Protocols have a direct effect in the internal juristic order. The preambles of the Convention for the Protection of Human Rights and their Protocols as well as certain aspects of several statements of the Convention are not considered as recognizing this direct effect.
The direct effect of the International Convention of the Human rights and Politics has never been contested in Belgique. It is admitted at present that a great number of statements of the Convention do have a direct effect.
In Austria, the Constitutional court directly applies the European Convention of Human Rights and its additional protocols as elements of the Constitutional Right.
The statements of the European Commission of Human Rights and in particular those related to the margin of appreciation authorized by Arts. 8, 9, 10 and 11, as well as the judgments of Strasbourg have made a contribution to modify the concept of the constitutional court of the fundamental, human rights, this evolution had a great repercussion in Austria. Previously, when considering a law, the Court only used to consider the question if there is a threat to a fundamental right. Today, the new jurisprudence is more sensitive to the substance of the fundamental rights. The Court does not any more satisfy itself by verifying if there was a threat to the essence of a fundamental right, but whether this threat is justified by the general interest, and whether the instruments involved are adapted to the sought objective. That means that the legislator retains a large margin of appreciation.
In Italy, one part of the doctrine demands a recognition to the regulations protecting the human rights as having a special status placing them at the same level as the constitutional right and even as the principles placed above that. Article 10 of the Constitution which is the opening clause of the International Right, should make it possible to consider these international regulations as those of direct application despite the executive order by which they are integrated to the internal order.
On its part, the French jurisprudence thinks that it is an ordinary judge whose duty is to apply the law, who is responsible for making the treaty, if any, prevail over the law, even posterior.
This solution has today a crucial value, but the French doctrine poses a question if the Constitutional Council will not at an appropriate time make an exception justified by the terms of Article 88-3 appended to the Constitution by the Constitutional law of June 25, 1992. This article states that the voting rights and eligibility at municipal elections of the citizens of the European Union (other than the French expatriates) will be exercised as previewed by the agreement on the European Union as of Feb. 7, 1992, i. e. by the local communities. Nevertheless, the last paragraph of Article 88-3 states that its terms of application will be determined by the natural law. By the decision # 92-312 DC as of Sept. 2, 1992, the Constitutional Council has emphasized that the said natural law «shall respect the prescriptions issued at the level of the European Community to actuate the voting right and the eligibility at the municipal elections for the citizens of the European Union.
- Other countries at last seem more hesitant as to the national judge to directly utilize the international regulations with regard to human rights. One can cite here Spain, Island, Luxembourg, perhaps even Turkey and Portugal.
b) The international regulation, a reference for the national constitutional judge.
Both in Austria and in Belgium, there are multiple references pointed out of the international sources in the decisions carried out by the constitutional judge.
It is to be specifically noted for Austria that inasmuch as the European Convention and its protocols have a constitutional value, the particular can prevail by leaning at the available regulations, it is quite logical that one can uncover important European references in the decisions of the court, not only with regard to federal laws but the laws of federated states, the regulations and administrative acts or the measures of mandatory execution.
Multiple examples of international references could also be cited for Hungary, Turkey, Poland (in this latter country the most revealing examples are the references to the convention of the International Labor Organization on matters of disability benefits, as well as to the International Convention of Economic and Social Rights on matters related to the system of retirement).
In France, the Constitutional Council in many of its decisions intervened while applying Article 54 of the Constitution, has sited the founding treaties of the Communities, and the texts that had modified or completed them.
It has proceeded in this way when it rejected the revision of the founding agreements within the framework of the applications based upon Article 61, Par. 2 of the Constitution.
In the same line of ideas, in case of revising the additional Protocol #6 of the European Convention for the protection of human rights, the Council, by virtue of the order of things, has endorsed the latter.
Far more significant than the mention of international engagements is the reference made by the Constitutional Council, though implicit, to the jurisprudence, both to the Court of Justice of the European Community and to the bodies of the European Convention of Human Rights.
If not applied directly or being simply made an object of a precise reference, can an international regulation constitute an element of interpretation for the national constitutional judge?
c) The international regulation, an element of auxiliary interpretation?
To be noted here is the perplexity of many a national judge at an international regulation, which will require implementation, produce fascination and excitement.
In Portugal, e.g., the judge will never refuse to utilize the international regulation in relation to human rights as a source of inspiration. But wouldn’t he secretly prefer to search in the internal constitutional legislation for the decisions to the questions of constitutionality as to the human rights? Definitely, the rules and principles of international conventions, don’t they appear only as simple auxiliary elements for interpretation?
In Spain the situation is a little different, but finally, the solution is the same. The Constitutional court, in its control of the constitutionality of laws, can use only the regulations of internal order as a criterion of control. Hence, a national law can never be pronounced unconstitutional for the sole fact that it infringes upon the statements of a treaty. It is the same with amparo. The resort to amparo cannot lean directly upon the violation of rights recognized by the international treaties. But if the treaties are not structured as «autonomous canons» of the validity of internal regulations from the point of view of fundamental rights, that does not mean that one cannot use the international treaties on human rights as criteria for the interpretation of the rights registered constitutionally.
In Germany, the international regulations related to the human rights cannot constitute a reference for evaluating the constitutional character of the laws because they have no value of constitutional laws in Europe. One cannot thus invoke the violation of a regulation by the European Council for the Defense of Human Rights or a regulation of another international treaty. On the contrary, while revising a constitutional complaint, receivable for other means, the federal court is leaning upon the regulations of the European Convention for the Defense of Human Rights, of the International Convention of Civil and Political Rights, of the International Convention of Economic, Social and Cultural rights, and of the Social European Charter.
As to the eventual controversy between the federal common law and the communal right, one can note that the question is related to the competence of the specialized courts.
Finally, if the human rights are the general principles of international right in the sense of Article 25 of the fundamental law, an individual can apply to the federal court by referring to article 2 and file a constitutional complaint.
Thus, the federal court has many times leaned upon the international regulations relevant to the human rights as a source of inspiration, particularly upon the regulations of the European Commission for the Defense of Human Rights. It is estimated that it would be necessary to take into account the degree of evolution of the European Commission for the Defense of Human Rights, as far as it results from the jurisprudence of the Court inasmuch as that does not lead to a restriction of the protection conferred by the fundamental law.
The federal court has many times leaned upon the regulations of the European Commission for the Defense of Human Rights as upon a source of inspiration with regard to the penal laws against homosexuality (in 1957), to inquire if the defendant has to right to ask for a defense council nominated officially (reference to Article 6 of the Convention), with regard to the freedom of marriage (reference to Article 12).
In Italy, the international regulations for the protection of human rights, even when they are introduced in the Italian juristic order with a legislative value, are nevertheless also used as elements of interpretation of the internal regulations of the same content.
It seems, even despite the subtle features or indeterminacies, that the international regulation has been used as an auxiliary element of interpretation in Turkey, Poland, Croatia, or in Switzerland.
As the constitutional regulation, the European jurisprudence itself has never failed to influence in its turn the interpretations and determinations of certain European courts.
This effect verified itself, e.g., in France in the sphere of freedom of expression, particularly when the affirmation by the European Court of pluralism as a condition of democracy found a reflection in the constitutional justice.
The fact of the European Court not restricting the fundamental principles of the penal code and the penal procedure to their traditional sphere of application but extending them to the set of repressive law has been an encouragement for the Constitutional Council to precede in a similar manner.
And finally, having taken into consideration the jurisprudence of the European Court as to Article 6 of the Convention, the Constitutional Council has ruled that the principle of the right to defense implies in the penal matter «the existence of a just and equitable procedure guaranteeing an equilibrium of the rights of the two sides.