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The effects of incorporation of international law into the dynamics of organized anarchy

In the Republic of Macedonia, international treaties ratified in accordance with the Constitution are considered part of the internal legal order and cannot be changed by an act of Parliament. This solution confirms the principle that international treaties have more legal authority than all the other legal acts, with the exception of the Constitution. This article aims to give an insight on the constitutional provisions that regulate the position of international treaties in the Macedonian legal order.

It identifies its advantages and shortcomings and offers some solutions that might be taken into account by the lawgiver in the future.

  • International Human Rights Law;
  • Hence, they are peremptory norms for all states, regardless of whether or not they accept them;
  • This situation facilitates the work of judges when they rule on issues related to individual rights and freedoms because they can simultaneously invoke the symmetrically formulated articles from the Constitution and the Convention.

The article also analyses the profound impact that the European Convention on Human Rights has exerted on the substantial nature of the catalogue of fundamental rights and freedoms prescribed in the Constitution of the Republic of Macedonia.

Constitution; international treaty; ratification; hierarchy of norms; European Convention on Human Rights 1. Introduction In their attempts to create a viable constitutional organization of the state powers, after the collapse of the socialist system the new East European democracies, began to reinstall the universal values of the classical constitutional law the principle of the rule of law, the separation and balance of state powers among the legislature, the executive and judiciary, the political pluralism as the fundamental basis for a free and democratic society, free market economy etc.

These changes have also included the gradual opening of their internal legal systems and their adaptation to the dynamic developments in the European and international law.

The protection of the human rights has been of profound importance in this context and it has become one of the most critical conditions for the new democracies in their accession to the new regional and global legal order De Schutter2010, pp.

The contemporary constitutions regulate the relationship between the international legal order and the internal one and the procedures that ensure the compatibility between the legal norms of the two legal orders. This relationship is evidenced by the way constitutions achieve the process of incorporation of norms of international law in the domestic legal order Anastasi, 2007, pp.

In order to accomplish this, it is necessary that the norms of international law become part of the domestic law of a state. From the legal-technical perspective, there are two constitutional modalities for the implementation of the international law in the national legal order: The Legal Position of International Treaties in the Constitutional Order of the Republic of Macedonia The constitutional law determines the position of the norms of international law in the hierarchical structure of the internal constitutional order of a state.

The relationship that an international treaty creates with the domestic law depends on the constitution of the state that has signed the respective treaty. Therefore, it is a necessity to refer to the constitutional norms of a specific state in order to draw valid conclusions on the relationship of the international and domestic law. These provisions are located in the first part Fundamental provisions and the sixth part International relations.

The former has a more general character and the latter a more specific one. For a general thematic treatment of the status of international law as well as the legal position of international treaties, including the legal position of the European Convention on The effects of incorporation of international law into the dynamics of organized anarchy Rights and Basic Freedoms in correlation with constitutional order of the Republic of Macedonia, Article 8 paragraph 1, clause 1 and 11as well as Article 118 and 119 of the Constitution of the RM, have a particular importance.

First, the fundamental rights and freedoms of man and citizen, recognized in international law and included in the Constitution Article 8, paragraph 1, clause 1 of the Constitution of the Republic of Macedonia. This provision implies that the international law of human rights 4 has served as a measure as well as guiding pattern for the normative text of the Constitution of the RM in the regulation of the catalogue of fundamental rights and freedoms of man and citizen De Schutter, 2010, pp.

The constitutional regulation of human rights and freedoms in post-communist Macedonia can be qualified and treated as unification of what is generally accepted as essential in most international instruments for human rights and in the constitutions of the majority of western countries.

Second, the respect for the generally accepted norms of international law is a fundamental value of the constitutional order of the Republic of Macedonia article 8, paragraph 1, clause 11 of the Constitution of the RM. This means that the Republic of Macedonia has undertaken the duty to respect the sources of international law: Moreover, the generally recognized norms of international law are: Consequently, these norms cannot be altered with internal legal provisions, or with bilateral treaties.

For instance, the bilateral treaty between the Republic of Macedonia and the USA signed in 2003 is null void from a legal perspective because, according to it, Macedonia assumed the obligation not to extradite members of US armed forces to the International Criminal Court in The Hague if they commit genocide, war crimes or crimes the effects of incorporation of international law into the dynamics of organized anarchy humanity Skaric, 2009, p.

Finally, the generally recognized norms of international law are the basis for the survival and development of the international community. Hence, they are peremptory norms for all states, regardless of whether or not they accept them. These norms on one hand create the relationship between internal and international law, and on the other they influence the interdependence of democracy, nation-state and globalization Skaric, 2009, p. This provision confirms the principle that the Constitution retains its legal superiority over all other legal acts, including international treaties ratified by an act of Parliament.

Indeed, this constitutional solution gives to ratified international treaties more legal authority than all the other legal acts with the exception of the Constitution and these international treaties cannot be amended with other legislative acts.

Clearly, in the hierarchical structure of the constitutional order of the Republic of Macedonia, international treaties take a specific position; they are above legal acts, but below constitutional acts.

Hence, inside the framework of the constitutional order of the Republic of Macedonia the legal force of international treaties is sub-constitutional and supra-statutory. This means that international treaties have legal primacy over all legislative corpus of internal law of the state, including the existing legal acts and the future ones the principle of primacy of international treaties over national legislation Aust, 2000, p.

This expression indicates that a court will not apply a legal act in a specific case because of its noncompliance with the provisions of an international treaty.

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In this context, every judge when confronted with laws he deems to be contrary to an international treaty, he is bound not to apply them, invoking instead the provisions of the international treaty.

Furthermore, the courts of the RM are entitled in specific cases to enforce the final and effective decisions of the European Court for Human Rights, the International Crime Tribunal or of any other court whose competence has been recognized by the Republic of Macedonia, provided that the respective decisions can be directly applied. The European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in 1950 by the Council of Europe and the decisions of the European Court of Human Rights are considered as internal sources of the constitutional law of the Republic of Macedonia, and as such they serve as mechanisms for the settlement of disputes between the Republic of Macedonia as state and its citizens, in cases when their rights and freedoms have been violated by final and enforceable decisions of the courts of the Republic of Macedonia.

A disadvantage of the Constitution of RM is that it does not expressly provide any competence to the Constitutional Court of the RM to review the constitutionality of laws that ratify international treaties. As a result, the Constitutional Court for more than a decade has rejected the initiatives for revision of the laws that ratify international treaties. There is no doubt that the ex ante control by the Constitutional Court has a preventive function, since it prevents the unconstitutionality of the content of the international treaty, before its ratification by the Assembly.

  • In this context, legal sources of domestic law include general legal acts, such as;
  • From that date the Convention became an organic component of the domestic legal order of the RM with the possibility of its direct application by the courts as an internal formal source of law;
  • Applicatio est vitae regulae iuris The application is the life of a rule.

Another disadvantage of the Constitution of the RM is that it has not entitled the Constitutional Court with explicit competence to control the conventionality of statutes and other general legal acts. Consequently, the Constitutional Court of the RM should offer legal protection to the international treaty by abrogating ex nunc or annulling ex tunc 11 the propositions of a specific statute when they infringe Article 118 of the Constitution Saliu, 2004, pp.

Finally, another disadvantage of Article 118 is that it can be applied only to ratified international treaties. This constitutional provision confirms that the competent state authorities to conclude international treaties on behalf of the Republic of Macedonia are: The President of the RM is the primary subject for the conclusion of international treaties because he represents Macedonia internally and internationally and his treaty-making power is confirmed by the generally accepted norms of international law.

Meanwhile, the Government of the RM is a complementary subject for the conclusion of international treaties, because it can conclude them only in the areas determined by law. In fact, the Government of the RM can conclude international treaties in the areas of economy, finance, science, culture, education and sport, transport and communications, urbanism, construction and protection of environment, agriculture, forestry, hydro economy, healthcare, energetics, justice, labor and social policy, human rights, diplomatic and consular relations, defense and state security, except issues related to the borders of the RM, association in or dissociation from a union or community with other states, and other international treaties which according to international law, are concluded by head of states, the Assembly of the RM ratifies international treaties in the form of statute Article 68, paragraph 1, clause 6 of the Constitution of the RM.

Typically, if there are two legal acts that regulate the same matter, one of which is special and particular and the other general, two fundamental rules are observed: To sum up, the transposition and implementation of international treaties in the constitutional order of the RM is realized through statutes 14.

The Government and the President of the RM are responsible for the enforcement of international treaties. The original copies of international treaties are registered and deposited in the Ministry of Foreign Affairs of the Republic of Macedonia.

  • In fact, the Government of the RM can conclude international treaties in the areas of economy, finance, science, culture, education and sport, transport and communications, urbanism, construction and protection of environment, agriculture, forestry, hydro economy, healthcare, energetics, justice, labor and social policy, human rights, diplomatic and consular relations, defense and state security, except issues related to the borders of the RM, association in or dissociation from a union or community with other states, and other international treaties which according to international law, are concluded by head of states, the Assembly of the RM ratifies international treaties in the form of statute Article 68, paragraph 1, clause 6 of the Constitution of the RM;
  • For a general thematic treatment of the status of international law as well as the legal position of international treaties, including the legal position of the European Convention on Human Rights and Basic Freedoms in correlation with constitutional order of the Republic of Macedonia, Article 8 paragraph 1, clause 1 and 11 , as well as Article 118 and 119 of the Constitution of the RM, have a particular importance;
  • They exist in parallel and none has supremacy;
  • Constitutional justice is an important mean to guarantee hierarchy of legal sources and the supremacy of constitution over all other legal acts Kelsen, 1949, pp;
  • For instance, the bilateral treaty between the Republic of Macedonia and the USA signed in 2003 is null void from a legal perspective because, according to it, Macedonia assumed the obligation not to extradite members of US armed forces to the International Criminal Court in The Hague if they commit genocide, war crimes or crimes against humanity Skaric, 2009, p;
  • Another disadvantage of the Constitution of the RM is that it has not entitled the Constitutional Court with explicit competence to control the conventionality of statutes and other general legal acts.

By becoming party to international treaties through the process of signing and ratification, the Republic of Macedonia assumes obligations that it is bound to perform. The Vienna Convention on the Law of Treaties 1969 stipulates two main criteria for the enforcement of international treaties: The Position of the European Convention on Human Rights According what has been said above, it can be concluded that the European Convention on Human Rights has an intermediary legal position between the Constitution and statutes, i.

On the other hand, from a material perspective, it has an equivalent legal status with the Constitution. This situation facilitates the work of judges when they rule on issues related to individual rights and freedoms because they can simultaneously invoke the symmetrically formulated articles from the Constitution and the Convention.

Due to this, it appears perfectly obvious that the European Convention on Human Rights has exerted a profound impact on the substantial nature of the catalogue of fundamental rights and freedoms of man and citizen in the Constitution of the RM. However, the act of signing did not immediately have operative legal force, but it confirmed the good will of the Republic of Macedonia to be part of the Council of Europe, and to verify its obligation to harmonize the national legislation with the standards and postulates of the Convention in a reasonable period of time.

In the course of their work which lasted eight months, by applying the analytical approach and the comparative method from the perspective of the Convention and the case law of the European Court of Human Rights, the working group highlighted the necessary amendments to the Macedonian legislation.

This study confirms the enormous implications of the Convention for the constitutional order of the RM in general and for the mechanisms for the protection of human rights and freedoms in particular Greer, 2006, pp. From that date the Convention became an organic component of the domestic legal order of the RM with the possibility of its direct application by the courts as an internal formal source of law.

Even though the Constitution of the RM in Article 98, paragraph 2 clearly stipulates that: As a matter of fact, Macedonian judges have not broken the myth of issuing their decisions only on the basis of statutes, without invoking the provisions of international conventions as well.

There is no doubt that in the practice of the The effects of incorporation of international law into the dynamics of organized anarchy courts there is still considerable hesitation to refer their internal operations to international legal acts.

As a consequence, unless the provisions of international treaties are invoked in the practice of the courts, they will remain only theoretical fictions without any meaning and value in the real life. This means that the status that international human rights law enjoys in a specific country does not depend only on the content of its constitutional norms but also on the commitment of the judiciary to implement them in practice.

  1. Hence, inside the framework of the constitutional order of the Republic of Macedonia the legal force of international treaties is sub-constitutional and supra-statutory. As a matter of fact, Macedonian judges have not broken the myth of issuing their decisions only on the basis of statutes, without invoking the provisions of international conventions as well.
  2. References Anastasi, Aurela 2007. Furthermore, the courts of the RM are entitled in specific cases to enforce the final and effective decisions of the European Court for Human Rights, the International Crime Tribunal or of any other court whose competence has been recognized by the Republic of Macedonia, provided that the respective decisions can be directly applied.
  3. The original copies of international treaties are registered and deposited in the Ministry of Foreign Affairs of the Republic of Macedonia. The European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in 1950 by the Council of Europe and the decisions of the European Court of Human Rights are considered as internal sources of the constitutional law of the Republic of Macedonia, and as such they serve as mechanisms for the settlement of disputes between the Republic of Macedonia as state and its citizens, in cases when their rights and freedoms have been violated by final and enforceable decisions of the courts of the Republic of Macedonia.

This is best verified from Latin legal maxim: Applicatio est vitae regulae iuris The application is the life of a rule. Moreover, the famous French philosopher Montesquieu affirms the applicative aspect of law in his impressive and meaningful saying: The third step that the Republic of Macedonia took was the deposition of the instruments of the ratification to the Secretary General of the Council of Europe on 10 April 1997.

Conclusion In the hierarchical structure of the constitutional order of the Republic of Macedonia, international treaties take a specific position; they are above statutory acts, but below constitutional acts. In case of a collision between a statute and a ratified international treaty, the provisions of the international treaty have primacy over the domestic law and international treaties invalidate internal laws if they do not comply with the respective international treaties.

A disadvantage of the Macedonian Constitution is that it invokes only ratified international treaties, but not international treaties that are not subject to ratification from the Assembly or international custom.

  1. A disadvantage of the Macedonian Constitution is that it invokes only ratified international treaties, but not international treaties that are not subject to ratification from the Assembly or international custom. They exist in parallel and none has supremacy.
  2. Principles of Public International Law.
  3. Constitutional justice is an important mean to guarantee hierarchy of legal sources and the supremacy of constitution over all other legal acts Kelsen, 1949, pp.

Another disadvantage of the Constitution of RM is that it does not expressly provide any competence to the Constitutional Court of the RM to review the constitutionality of laws that ratify international treaties. European Convention on Human Rights has an intermediary legal position between the Constitution and statutes, i.

On the other hand, from a material perspective, it has an equivalent legal status with the Constitution, because the fundamental human rights stipulated by the Constitution of the RM are received from the provisions of the European Convention on Human Rights, i. References Anastasi, Aurela 2007. Modern Treaty Law and Practice. Principles of Public International Law. De Schutter, Oliver 2010.

International Human Rights Law. The European Convention on Human Rights: Achievements, Problems and Prospects.

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General Theory of Law and State. The Concept of Treaty in International Law. American Journal of International Law, Vol. Nevertheless, in the contemporary circumstances, as a reflection of dynamic processes of European, North Atlantic and global integration, the monist circles are dominated by the tendency of overestimation of the role of international law, claiming that its nonobservance could open the road to anarchy and lead to the clash of hundreds systems of internal law of different states.

The dualist conception consists on a different observation of the relationship between international and domestic law. They are considered two completely separated domains. Domestic and international law are created on the basis of the coexistence of these two separate legal orders and they differ from each other regarding their legal sources, relations they regulate and their subjects. In this context, legal sources of domestic law include general legal acts, such as: In addition, the domestic law regulates the legal relations mainly in the internal plan, with natural and juristic personas as its main subjects, whereas international law mainly regulates legal relations in international plan, with states and international organizations as its main subjects.

The dualist doctrine excludes all risks of the conflict between domestic and international legal norms and maintains that there is no need to affirm the supremacy of international law over the domestic law and vice versa. They exist in parallel and none has supremacy. This includes a body of legal principles and rules that are part of international treaties conventions, covenantswhich create obligations on states, to respect, protect and guarantee rights and freedoms of man and citizen in their territories in conformity with universal legal values.

These international documents set the fundamentals of the functioning of global politics, as well as the standards of conduct of state authorities and their political legitimacy. Their nonperformance or fraudulent conduct is an international delict, and the legal transactions that are in breach of peremptory norms legally are null and void.