On the Law on International Treaties of the Republic of Lithuania
The ruling of the Constitutional Court of the Republic of Lithuania of 17 October 1995
ON THE LAW ON INTERNATIONAL TREATIES OF THE REPUBLIC OF LITHUANIA
The case was initiated by the Government of the Republic of Lithuania. In its petition it requested an investigation into whether the provision “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” of Paragraph 4 of Article 7 of the Law “On International Treaties of the Republic of Lithuania” and whether the provision “international treaties of the Republic of Lithuania shall have the force of law on the territory of the Republic of Lithuania” of Article 12 of the same law were in compliance with the Constitution. The petition was based on the fact that Paragraph 3 of Article 138 of the Constitution states that “international treaties 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”, which allows one to state that only the international treaties ratified by the Seimas may have the force of law while the legal force of other international treaties that were ratified or joined after the adoption of the Constitution in 1992 remains indeterminate.
The request also indicated that item 2 of Article 84 of the Constitution provides 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 do not directly indicate which subjects may submit international treaties to the Seimas for ratification.
The Constitutional Court held that according to the Constitution not only the President but also the Government have the concrete authorisation to conclude international treaties, as without having them it is impossible to implement foreign policy. However, none of the articles of the Constitution, which establish the competence of the institutions of State power, point out 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 of Lithuania. Therefore, Paragraph 4 of Article 7 of the impugned Law contradicted the provision of item 2 of Article 84 of the Constitution that the President of the Republic “shall submit them to the Seimas for ratification”.
Having compared the contents of the norms of Paragraph 3 of Article 138 of the Constitution and those of Article 12 of the impugned 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 impugned Law “shall have the force of law”, when applied to international treaties ratified by the Seimas, does not contradict the Constitution; however, providing the said provision is understood that international treaties of the Republic of Lithuania had the force of law, i.e. including those international treaties that have not been ratified by the Seimas, then the said provision 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 impugned Law that international treaties of the Republic of Lithuania “shall have the force of law” contradicted the Constitution.
The legal system of the Republic of Lithuania is grounded on the fact that any law or other legal act, as well as international treaties, must not contradict the Constitution, because Paragraph 1 of Article 7 of the Constitution prescribes: “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 should 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 violate the most important principles of the 1969 Vienna Convention on the Law of International Treaty, which was undertaken to respect and execute by the Republic of Lithuania, 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).
The principle pacta sunt servanda 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.
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 legislature 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. Any recognition that non-ratified international treaties have the force of law would deny the legislative prerogative of the Seimas.