Mr. Klaus get off this wall!
Thu, Oct 15, 2009 posted by Eurostein
Lisbon and Prague: two lovely cities. One of them is even considered to be golden. Indeed, a President enjoying a splendid view of Prague, is having golden times these days – his five minutes of fame when the entire European Union, its very legal-institutional fate, lies in his hands.
The story is rather bizarre. Now, when twenty-six member states have ratified the Treaty and both chambers of the Czech Parliament have done so as well, Mr. Klaus is still withholding his signature. Moreover, he has come up with new demands, such as a Czech opt-out from the Charter of Fundamental Rights in order – and this is the saddest and the most grotesque part – to prevent the resettled Germans after the WWII to claim back their property left-behind. As if the issue has not been long solved by the famous Benes decrees; if not later then during the Czech negotiations with the EU preceding the Czech full membership.
Was ist jetzt zu tun? EU can play with its gloves on and gently move closer to Klaus in co-operation with Czech government hoping that adding more carrots to the basket will be more productive than simply using a stick, or even, in this case not so improbable, a baton.
Alternatively, EU could resort to the long overcome fundamental rules of international law. The Czech government has signed the Treaty of Lisbon. It is now its duty to do whatever necessary to heed its international obligations – its internal political problems, whatever they might be, notwithstanding. Also, for an outsider with some knowledge of constitutional law, it is difficult to see why nobody in the Czech Republic – provided there is a constitutional basis for it – moves and forces the President under the Czech Constitution to sign the treaty. Unless the Czech Republic is a sort of monarchical republic, President should be under a constitutional duty to exercise his anyhow merely symbolic function, especially when this is of a constitutive effect.
All in all, there is a strong reason for all the actors involved in this case to act with circumspect. Whatever they will decide, they will set a precedent for the future. Being too lenient on this kind of unilateral statist exceptionalism, which lacks any principled argumentative foundation, could bring about an avalanche of similar actions in the future.
Eurostein
October 15th, 2009 at 12:02 pm
Why do you think CZ is legally required to ratify a treaty after signing it?
October 15th, 2009 at 1:32 pm
@Heiki I’m not sure about the czech system, but if it’s the same as in Germany for example or at least similiar, the President has to sign all laws etc. but it is just a formality.
October 15th, 2009 at 3:52 pm
I have been wondering about this. Maybe someone can clarify it for us? I gather the President’s role is not merely symbolic, and that he actually shares power with the Prime Minister in some areas- one of which is, I think, foreign relations. Does this mean that he has a substantial power to decide whether or not to ratify a treaty? I have been assuming this is the case- at least as long as there may be the possibility of a conflict between the constitution and the treaty. My feeling is that Klaus can argue that he is within his powers in withholding signature as long as there is the possibility of such a conflict (ie, as long as the Constitutional Court has been called upon to decide), but that he would not have a ground to stand on once the possibility of conflict disappeared (ie, once or if the Court dismisses the challenge).
Any Czech constitutional lawyers out there?
Best
Nizz
October 16th, 2009 at 2:32 pm
from the constitution: “Article 50 [Rejection by President]
(1) The President of the Republic has the right to return an adopted law, except a constitutional law, giving explanation within fifteen days of the day of its advancement.
(2) The Chamber of Deputies shall vote on the rejected law once again. Draft amendments are inadmissible. If the Chamber of Deputies re-approves the returned law by an absolute majority of all deputies, the law is promulgated. Otherwise it is assumed that the law was not passed.”
So if he does not formally do this (or did he already do it? but even then parliament could just overrule hime) I think he has to sign it, as it was already passed by parliament it seems that laws and signing of international treaties are treated equally most of the time.
October 22nd, 2009 at 1:37 pm
There is a bit of discussion on this issue in the Czech Republic now. The problem is that the Constitution is not that explicit in this matter as on can assumes.
According to Article 63 of the Constitution the President of the Czech Republic represents state represents the State with respect to other countries and negotiate and ratify international treaties; he may delegate the negotiation of international treaties.
The President in this case delegates the negotiation on to the goverment. But it is not an issue, just to clarify few points. So from my point of view “he cries on wrong grave” (an idea on English idiom within the same meaning :-)? It was his mistake that he did not negotiate … .
Interpretation of President Klaus is that he may ratify the International Treaty, but he has not to. Eeven though such Treaty was approved by the Parliament. The other opinion e.g. of one of former the Constitutional Court judges (and also one of authors of the Constitution) is of the opinion, that the President in this case acts only as a notary, it means, that he only acknoledges, that an International Treaty was adopted.
The President has no explicit right to return International Treaty to the Parliament, he has right to return “ordinary” act. He can not return Constitutional act. But in respect of International Treaty, there is nothing at all.
In addition, the President of the Czech Republic is not responsible for anything, only the Government shall be responsible. He may be prosecuted only for high treason by the Senate which may bring an action in this matter to the Constitutional Court, unfortunatelly this is not the case … .
October 23rd, 2009 at 4:30 pm
Dear Flo, you are citing incorrect article (as JM writes), Mr Klaus bases his resistance on Art 63:
Art. 63
(1) President of the Republic shall furthermore
b) negotiate and ratify international treaties; he may delegate the negotiation of international treaties to the Government or, subject to the Government consent, to its individual members;
In my reading of the Czech Constitution he rather should sign the int. treaty, however, the whole issue is unfortunately unsettled yet. Maybe, the Constitutional Court is waiting for another important case…