Democracy, Rule of Law and Foreign Policy
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Rome, 14-15 June/juin 2001 CDL-STD(2001)033 Science and technique of democracy, No. 33 Science et technique de la démocratie, n° 33 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW COMMISSION EUROPEENNE POUR LA DEMOCRATIE PAR LE DROIT Democracy, Rule of Law and Foreign Policy Démocratie, Etat de Droit et Politique étrangère UniDem Seminar organised in Skopje on 4-5 October 2001 Séminaire UniDem organisé à Skopje les 4 et 5 octobre 2001 TABLE OF CONTENTS / TABLE DE MATIERES OFFICIAL OPENING SPEECH: DEMOCRACY, RULE OF LAW AND FOREIGN POLICY 4 Mr Todor DZUNOV .......................................................................................................................5 POLITICAL ETHICS AND FOREIGN POLICY: HOW MACEDONIANS INTERNALISE THE RELATIONSHIP ...................................................................................................................8 Mr Dimitar MIRCEV......................................................................................................................8 THE POLITICIAN, THE DIPLOMAT AND THE PEOPLE: MACEDONIAN FOREIGN POLICY EXPERIENCES ............................................................................................................18 Mr Denko MALESKI ...................................................................................................................18 LA REPARTITION DES ROLES ET DES RELATIONS INSTITUTIONNELLES DANS LE CONTEXTE DE LA POLITIQUE ETRANGERE ......................................................................24 Mme Hélène TOURARD..............................................................................................................24 CONSTITUTIONAL COMPETENCES OF STATE ORGANS IN THE CONCLUSION, RATIFICATION AND EXECUTION OF INTERNATIONAL AGREEMENTS ......................43 Mr Josif TALEVSKI,....................................................................................................................43 Mr Simeon PETROVSKI .............................................................................................................43 REVIEW OF ACTS OF FOREIGN POLICY: THE ROLE OF CONSTITUTIONAL COURTS .......................................................................................................................................54 Mr Igor SPIROVSKI ....................................................................................................................54 LIST OF PARTICIPANTS ...........................................................................................................70 This publication contains the reports presented at the UniDem Seminar organised in Skopje on 4-5 October 2001 by the European Commission for Democracy through law in co-operation with the Constitutional Court of “the Former Yugoslav Republic of Macedonia”. The European Commission for Democracy through Law (Venice Commission) is an advisory body on constitutional law, set up within the Council of Europe. It is composed of independent experts from member states of the Council of Europe, as well as from non-member states. At present, more than fifty states participate in the work of the Commission. ****** Cet ouvrage contient les rapports présentés lors du Séminaire UniDem organisé à Skopje les 4 et 5 octobre 2001 par la Commission européenne pour la démocratie par le droit en coopération avec la Cour constitutionnelle de « l’Ex-République Yougoslave de Macédoine ». La Commission européenne pour la démocratie par le droit (Commission de Venise) est un organisme consultatif en matière de droit constitutionnel, créé au sein du Conseil de l’Europe. Elle est composée d’experts indépendants d’Etats membres du Conseil de l’Europe, ainsi que d’Etats non membres. Plus de cinquante Etats participent aux travaux de la Commission. OFFICIAL OPENING SPEECH: DEMOCRACY, RULE OF LAW AND FOREIGN POLICY Mr Todor DZUNOV President of the Constitutional Court of the Republic of Macedonia Your Excellency, Distinguished participants and guests, It is my great pleasure to greet you and wish you a warm welcome to this UniDem seminar of the Venice Commission of the Council of Europe, which, despite the acts of violence that our country and the world have experienced this year, will take place over the next two days in Skopje, Republic of Macedonia, on “Democracy, Rule of Law and Foreign Policy”. I would like to use this opportunity to express special gratitude for their support in the realisation of this seminar (both for their organisational and financial support, as well as their participation in person) to the President of the Republic of Macedonia, the Assembly of the Republic of Macedonia, the Ministry of Foreign Affairs, the leadership of the European Commission for Democracy Through Law, and especially Mr Buquicchio and Mr Kouznetsov. I would also like to thank the capable management of the Hotel “Holiday Inn” and the Secretariat of the Constitutional Court of the Republic of Macedonia, the interpreters and the media representatives present here with us. Ladies and gentlemen, It seems that constitutional law devotes little attention to the manner in which governments conduct their foreign policy. Contemporary political systems have, in practice, entrusted governments with unlimited licence to determine and conduct their foreign policy. Consequently, public participation in matters of foreign policy and the reflection of the public interest in foreign policy options are very limited. A close look at the constitutions of many democratic states reveals that they contain few provisions concerning this domain. Foreign policy still remains an under-regulated area of democracy and of the law. Today, however, foreign policy can no longer be left solely to governments, and it can no longer remain uncontrolled. Furthermore, it is clear that foreign policy must respect some of the legal rules of both international and domestic law. As members of the international community, states have assumed a duty to conduct their foreign policy with due diligence and in full conformity with international law – primarily by adhering to legally binding treaties, international customary law, general legal principles and binding decisions of many international organisations. States must comply with the fundamental principles set forth in the United Nations Charter concerning the peaceful resolution of international conflicts, refrain from threats or the use of force in international relations, and work towards the development and fostering of good neighbourly relations. With respect to the main issue, whether foreign policy is a domain strictly reserved for the government, for a long period of time the judiciary has had no possibility of reviewing foreign policy acts. In many countries, the theory of “actes de gouvernement” meant that actions of state authorities in the area of foreign policy should remain outside the scope of judicial review. According to this theory, when the government undertakes actions in the international context that fall within its sphere of competence, this does not mean that the government is performing administrative functions, and therefore these actions cannot be subject to judicial review but may only be subject to political control by the parliament (for example in France, Greece, Croatia and Slovenia). In other countries, judicial review of these acts is expressly prohibited (as is the case in Finland regarding acts of the President of the Parliament, in the Netherlands regarding review of constitutionality of international agreements, and in Switzerland with respect to federal laws and international treaties). Nevertheless, today the prohibition on judicial review of foreign policy acts is clearly loosening up. In the first place, a subject of review may be the question whether a state organ, in making foreign policy decisions, has acted beyond its powers as determined by the Constitution (as illustrated in the cases before the Supreme Court of the United States). Some constitutional courts have introduced precedents by examining the merits of the decision in question, not only the constitutional powers of the state organ concerned. The procedure for preventive review of treaties with regard to their conformity with the Constitution is well known, as is the concept of limitations on actions undertaken by the executive branch in cases where fundamental human rights are concerned. Another example is the transfer of national sovereignty to European Union institutions, especially following the ratification of the Maastricht Treaty by some member states of the European Union (Germany and France). Running parallel to the development of legal rules regarding foreign policy and the control of foreign policy, there is a trend towards a certain democratisation and decentralisation in this domain. The number of legal standards has increased at the level of international organisations and through multilateral negotiations. Foreign policy, more and more, has direct repercussions on the life of ordinary citizens, and therefore cannot be left at the full discretion of its stakeholders. New “players” are appearing on the scene: parliament, even the people directly, non-governmental organisations, and many others. States are obliged to adhere to and to apply international law bona fide, including jus cogens rules, treaties, customary law, general legal principles and binding decisions of international organisations. In particular, in conducting foreign policy states must be guided by three basic principles of the international legal order: 1. the prohibition on