I An Introduction
The field of law that is the subject of this book, foreign relations law, is referred to in South Africa simply as constitutional law or, the intersection of constitutional law and international law. It does not concern the rules of international law as such but may well concern processes that may lead to the making of international law, whether practice for the purposes of customary international law and, more often, treaty-making conduct. Contestations over who participates in international activities on behalf of the state, and under what circumstances international engagements on behalf of the state may be pursued (or abandoned) fall within this area.
Three recent cases in South Africa illustrate some of the contestations that may play themselves out over the limits of the right to engage in foreign relations. The judgments in question are the Democratic Alliance v. Minister of International Relations and Cooperation concerning the decision of the government to withdraw from the Rome Statute (hereinafter the Withdrawal judgment),Footnote 1 Law Society of South Africa v. President of South Africa (hereinafter the SADC Tribunal judgment),Footnote 2 and Democratic Alliance v. Minister of International Relations and Cooperation concerning the decision of the government to confer or recognise spousal immunities of Grace Mugabe, the spouse of former late President of Zimbabwe (hereinafter the Grace Mugabe decision).Footnote 3 While all three judgments addressed international law questions, these international law questions were not the central legal questions to the disputes. Rather, the central questions in all three cases concerned the distribution of competence between branches of government in relation to the conduct of foreign relations – constitutional lawyers may refer to the doctrine of the ‘separation of powers’. These judgments have a number of things in common. First, all three concern the powers of the executive in foreign relations, and the limits thereof. Second, all three judgments concern judicial review of decisions made by the executive during Zuma administration. Third, in the judgments, the courts came to the conclusion that the decisions by the executive had been unlawful. In the interest of full disclosure, I should declare that I had been involved in some way in all three matters before the courts – I will describe my personal involvement when discussing each case. Given space constraints, I will discuss the Constitutional Court judgment in the SADC Tribunal in detail and only briefly touch upon the other two, which were not delivered by the apex court.
The decisions, to varying degrees, reflect an interesting trend in which the courts have slowly but surely eroded the discretion of the executive in foreign relations to the point where it can hardly be termed discretion. Much of this erosion has developed, it seems, because of a mistrust of the Zuma administration, leading one commentator in a social media platform to quip that South Africa has a ‘constitution written for a President like Mandela and a constitutional jurisprudence made for a President like Jacob Zuma’.Footnote 4 This chapter will assess the decisions emanating from these cases principally from the perspective of the distribution of competence in the conduct of foreign relations. It proceeds from two premises which, decisions in question notwithstanding, have not been challenged as doctrine and remain, at least in rhetoric, the law in South Africa. First, the executive, even in the conduct of foreign relations, is constrained by the Constitution and the courts are not only permitted, but are duty-bound, to determine whether the executive has consistently with the Constitution. Second, while the courts are tasked with holding the executive accountable for its exercise of public power, the executive has a wide margin of discretion which ought not be interfered with lightly. In the next section of this chapter, the basis of these two premises is traced.
II Mandela’s Constitution: Executive Discretion in Foreign Relations
South African courts, in the Apartheid years – before the international law-friendly yearsFootnote 5 – applied British concepts such as ‘the act of state doctrine’ and the related ‘prerogatives’ in matters pertaining to the conduct of foreign relations by the executive, with the result that the executive’s conduct was beyond review. Under these traditional concepts, the executive had an almost unfettered discretion in the conduct of foreign relations,Footnote 6 and, in order ‘to avoid judicial intrusion into the domain of the political branches’, courts were required ‘to refrain from sitting in judgment on the acts’ covered by such doctrines.Footnote 7 These concepts however, do not fit neatly into South Africa’s constitutional model which, in addition to being an international law-friendly framework, has also been termed a deliberative constitution.Footnote 8 Under this constitutional framework all exercise of public power, including the executive’s conduct of foreign relations, must be subject to judicial scrutiny to ensure compliance with the Constitution.Footnote 9 This important constitutional principle raises the question of the appropriate standard for the review of the executive’s conduct in matters of foreign relations.
In my view, the question was appropriately answered in a well-reasoned and rigorous judgment by the Constitutional Court in Kaunda v. the President of the Republic of South Africa.Footnote 10 In Kaunda the court determined that though courts are entitled to review decisions of the executive in the exercise of its mandate in foreign relations, in doing so they should ‘give particular weight to the government’s special responsibility for and particular expertise in foreign affairs’ and therefore afford ‘wide discretion … in determining how to deal’ with such foreign relations matters.Footnote 11 According to the Constitutional Court, the courts could, for example, intervene if a decision was irrational.Footnote 12 Importantly, the court stressed that the fact that the courts could review a decision of the executive in the conduct of foreign relations did ‘not mean that courts would substitute their opinion for that of government’ or order a particular course of action in the conduct of foreign relations.Footnote 13
There is a second principle laid out in Kaunda which may be of some relevance for some of the analysis in this chapter. In rendering its decision, the court considered whether the Bill of Rights in the Constitution applies extraterritorially – this is referred to in the court’s decision as extraterritoriality in a constitutional context.Footnote 14 The court stated that the Constitution ‘provides a framework for the governance of South Africa’, is ‘territorially bound and has no application beyond our borders’.Footnote 15 Foreigners are entitled to the protection offered by the constitution while in South Africa but lose any such protection ‘when they move beyond the borders’.Footnote 16 The court emphasised that the ‘bearers of the rights [in the constitution] are people in South Africa’ and that ‘[n]othing suggests that it is to have general application, beyond our borders’.Footnote 17
Although Kaunda was decided during the presidency of Thabo Mbeki, it was built on jurisprudence developed under the Mandela administration.Footnote 18 This jurisprudence not only advanced as a matter of principle (rhetoric) the idea of discretion and the notion that the courts ought to not substitute their own opinion for that of government, but actually applied said principle. The only time, during the Mandela–Mbeki administrations, when the rhetoric appeared not to be followed was in the Von Abo cases – which incidentally has interesting backstory connection with Law Society of South Africa v. President.Footnote 19 The Von Abo cases are interesting series of cases in which one man, Von Abo, sued the government for failing to protect his farming and business interests in Zimbabwe. The North Gauteng High Court, though paying lip-service to the jurisprudence of Kaunda, found that the government was indeed duty-bound to intervene diplomatically to protect the commercial interests of Mr Von Abo in Zimbabwe.Footnote 20 In a subsequent judgment on the damages, the Pretoria High Court proceeded to hold the government accountable on the basis of, inter alia, the failure to enter into a bilateral investment agreement with Zimbabwe (Von Abo II).Footnote 21
Although the Pretoria High Court judgments in the Von Abo cases were eventually overturned by the Supreme Court of Appeal for not being consistent with the standard for the judicial review of acts of the executive in the conduct of foreign relations set by the Constitutional Court in, inter alia, Kaunda,Footnote 22 it is worth describing the salient themes of the Von Abo High Court judgments which, it seems, have been adopted in the new constitutional jurisprudence on the test for executive decisions in the conduct of foreign relations. The applicant in Von Abo had sought an order, inter alia, requiring the government to, within thirty days, ‘take all necessary steps to have the Applicant’s violation of his rights by the Government of Zimbabwe remedied’,Footnote 23 remedies that the court granted in whole. There had also been a prayer, which was eventually abandoned by the Applicant but which the Court still felt the need to address, namely to ‘force the respondent to join ICSID’ – a treaty regime for the settlement of investment dispute.Footnote 24 Both of these prayers seem to be far-reaching, policy matters concerning the conduct of foreign relations.
Although the Applicant had abandoned its prayer concerning ICSID, the Court nonetheless proceeds identify reasons why the government should join ICSID.Footnote 25 These are policy consideration that courts are ill-equipped to consider. For example, while noting that joining ICSID would be greatly beneficial to South Africans investing in foreign states,Footnote 26 it does not consider that joining ICSID opens South Africa to suit from investors from other states that might challenge basic foundational policies of the government such as Black Economic Empowerment. The court felt so strongly about this policy question of joining ICSID that, notwithstanding the abandonment of the prayer by the Applicant, it decided to keep it on the table:
The fact that the prayer for this specific relief was abandoned … does not mean, in my view, that the consistent failure on the part of the respondents to join ICSID and make a serious attempt to enter into a Bilateral Investment Treaty (‘BIT’) with Zimbabwe with the view to protecting its nationals investing in that country should not come under the spotlight … .Footnote 27
With respect to the broader question of intervening in executive decisions in the conduct of foreign relations, without assessing the appropriate standards in the particular case, the Court simply states that, on the basis of the ‘guidelines’ provided by the Constitutional Court in Kaunda, ‘it appears that there need not be an actual refusal on the part of the Government to grant diplomatic protection before a court will intervene … ’.Footnote 28 In assessing the judgment of the Pretoria High Court in Von Abo, I have previously made the following general critique:
The judgment quotes large extracts from the Kaunda majority [judgment], dissenting and concurring [opinions], mixes them together in a potpourri approach and then declares an outcome. The congruence between this outcome and Kaunda is assumed and therefore never properly examined. The differences between the majority, minority and concurring [opinions] are never explored.Footnote 29
The essence of Von Abo, contrary to the majority in Kaunda, is that the Government has a duty to provide diplomatic protection. Not only that, the court in Von Abo orders very specific ways to achieve this objective, including seeking a bilateral investment treaty or joining ICSID, in a way that makes nonsense of the Kaunda judgment’s call for wide discretion because of the nature of the playing arena, namely foreign relations. As noted, this judgment was eventually overturned by the Supreme Court of Appeal for its failure to respect the wide margin of discretion required by Kaunda.Footnote 30 This respect for the discretion of the executive in foreign relations has not meant that the courts have simply found in favour of the executive. In instances where the executive has clearly violated the constitution, the courts have not been shy to appropriately censure the executive.Footnote 31
III Zuma’s Constitutional Jurisprudence: Discretion? What Discretion?
A The SADC Tribunal Decision
I begin with the SADC Tribunal judgment, first because it was delivered by the Constitutional Court and second because of the three decisions, it is the most problematic and the one whose reasoning most offends the Kaunda doctrine of a very wide margin of discretion in foreign relations. The SADC Tribunal judgment concerned the decision of the Southern African Development Community (SADC) heads of state and government to remove the right of access to the SADC Tribunal for individuals and other non-state entities. The Constitutional Court was approached by the Law Society of South Africa and others seeking an order to find that the president of South Africa, by signing the protocol establishing a new tribunal without such access had violated the constitution. In a hard-to-follow judgment penned by the chief justice, Mogoeng Mogoeng, the court found that the president’s participation in the ‘decision-making process and his own decision to suspend the operations’ of the tribunal to be unconstitutional, unlawful and irrational.Footnote 32 The judgment also found that president’s signing of the 2014 ProtocolFootnote 33 was unconstitutional, unlawful and irrational and the court, as a result, directed the president to withdraw his signature.Footnote 34 My criticism of the judgment relates not only to the outcome, but to the reasoning, and to this point it may be added that a judgment built around the concurring opinion of justices Cameron and Froneman would be less objectionable, but ultimately also problematic.Footnote 35
There is much that is open to critique – and little saving grace – in the SADC Tribunal judgment, both in terms of the order and the reasoning. But before delving into the analysis of the judgment, a related case concerning a South African diamond mining company, Swissbourgh, whose mineral rights in Lesotho had allegedly been expropriated to make way for the Lesotho Highlands Water Project, is worth referring to. The owner of the company, Mr Josias van Zyl, a South African national, first approached the South African courts (in the pre-Zuma years) seeking diplomatic protection, but was unsuccessful.Footnote 36 The cases are related to the SADC Tribunal judgment because, subsequent to the impugned decision of the SADC Summit concerning the tribunal, Swissbourgh filed an investment claim with the Permanent Court of Arbitration against the government of Lesotho claiming that its participation in the decision-making process that led to the taking away of the right of individual access to the SADC Tribunal – referred to in all the relevant papers of those papers as the ‘shuttering of the Tribunal’ – was a violation of its rights under the SADC Treaty regime, including the investment protocol. It will be noted that the claims of Swissbourgh are similar to those raised by South African Law Society before the South African courts. In the Swissbourgh matter, I served as expert witness for the government of Lesotho, focusing on the rules of state responsibility under international law and the decision-making processes in SADC, providing both a written report and being cross-examined by counsel for Swissbourgh.Footnote 37 In a majority judgment of two to one, the arbitral tribunal determined that Lesotho’s participation in the decision-making process to shutter the tribunal did constitute a violation of international law and that Lesotho could be held liable for the damagesFootnote 38 – incidentally, the one dissenting opinion came from a former South African judge of appeal, judge Petrus Millar Nienaber.Footnote 39 Because the arbitration was held under the PCA rules, the courts of Singapore had jurisdiction to review the arbitration award to determine whether the arbitral tribunal had jurisdiction. Lesotho had argued, inter alia, that the arbitral tribunal had not had jurisdiction precisely because its participation in the decision-making process did not establish international responsibility. After an earlier high court judgment affirmed Lesotho’s claim, the highest court of Singapore, the Court of Appeal, finally overturned the arbitral award on the basis, inter alia, that the participation of Lesotho in the SADC decisions did not breach the relevant of international law as had been argued by Swissbourgh.Footnote 40
Consistent with the Kaunda jurisprudence, the SADC Tribunal judgment begins by acknowledging that while public power must always be exercised within constitutional bounds, the president ought not to be ‘unnecessarily constrained in the exercise of constitutional power’.Footnote 41 Yet, in what follows, the court departs from the Kaunda line of reasoning in at least two material ways. First, the court’s reasoning seems to imply that the executive, when acting in foreign relations, should do so in a manner that protects fundamental rights extraterritorially. Second, the court’s judgment, both in terms of its reasoning and in terms of dispositif leaves very little discretion for the executive.
The extraterritorial rationale of the court’s judgment is evident early on when it states that the ‘only avenue open to those [in Zimbabwe] aggrieved by having been deprived of their land in that constitutionally sanctioned manner was the Tribunal’.Footnote 42 The court then states that the ‘President, together with leaders of other SADC [states], decided to eviscerate the possibility of the states ever being held to account for perceived human rights violations, non-adherence to the rule of law or undemocratic practices’.Footnote 43 For this reason the court states, that South Africa, through the actions of its president, ‘were party to denying citizens of South Africa and other SADC countries access to justice at a regional level’.Footnote 44 Yet, leaving aside that this statement is made before any analysis of the issues takes place, this seems to go against Kaunda’s admonition that the ‘bearers of the rights [in the Constitution] are people in South Africa’ and that ‘[n]othing suggests that it is to have general application, beyond our borders’.Footnote 45 The impugned decisions are decisions taken at an international forum, in a foreign country, with no apparent impact in South Africa at all. The extraterritorial nature of the conduct is buttressed by the assertion that the unconstitutionality flows from an alleged breach of a rule under international law.
The judgment, furthermore, leaves very little discretion, if any, for the executive in the conduct of foreign relations. The judgment’s conclusions that the impugned decisions are unlawful, irrational and unconstitutional are based on a single pillar, namely that they are in breach of South Africa’s international law obligations. Given the far reaching nature of the decision – constraining the executive’s role in international forums and even declaring the signature of a treaty to be unlawful – one would have expected a detailed and rigorous assessment of the claim that the impugned decisions were in breach of international law.Footnote 46 Yet there is no assessment of this claim at all.
There appears to be two possible bases, none of which are really tested, for the court’s assertion that the treaty has been breached. The first is what the court refers to as ‘the entrenchment of a human rights culture, a democratic order and adherence to the rule of law’ and the obligation on the SADC summit not to disturb these values.Footnote 47 The content of this ‘obligation’ is never described nor is it ever explained how the decision to adopt the 2014 Protocol breaches this obligation. In other words, does this ‘entrenchment-obligation’ require the existence of a tribunal in which individuals will have direct access? This certainly does not go without saying since the UN Charter itself has a human rights-entrenchment clause,Footnote 48 yet the UN does not have a tribunal with the right of access of all individuals of UN member states. The closest the court comes to any sort of description, let alone analysis, of this ‘obligation’ is a footnote reference to article 4 of the treaty and the preamble. Yet, article 4 of the treaty simply provides that the SADC and its member states shall act in accordance with a number of enumerated principles, including ‘human rights, democracy and the rule of law’.Footnote 49 None of these principles imply, let alone require, the existence of a tribunal, even less so one with the right of individual access.
To the extent that article 4(c) might be said to refer to a right of access to an effective judicial remedy under international law, this is a right that applies in national systems. There is no right, whether under the SADC TreatyFootnote 50 or general international law, to access to an international tribunal (I include regional courts under the rubric of international courts).Footnote 51 It is disconcerting that the court seems oblivious to, or perhaps simply chose to ignore, the fact that the African Commission of Human and Peoples Rights had recently addressed the question of whether the shuttering of the tribunal’s access to individuals amounted to a breach of the right of access to courts and effective judicial remedies in an application filed by Luke Munyandu Tembani who, incidentally was also second applicant in the Constitutional Court application.Footnote 52 In its well-reasoned decision, the African Commission concludes that the right of access to courts applied to national courts and not to international courts and, therefore, that the impugned decision of the SADC Summit was not contrary to the right of access to courts.Footnote 53
The second possible basis for the conclusion that the impugned decision was a breach of South Africa’s international law obligation is that the SADC summit did not follow the appropriate procedures under the relevant SADC treaties. According to the court, the adoption of the new 2014 Protocol was unlawful because ‘the Treaty has never been amended so as to repeal its provisions relating to individual access to the Tribunal, human rights, the rule of law and access to justice’.Footnote 54 In the view of the court, the jurisdiction of the Court could only be ‘lawfully tampered with in terms of the provisions of the [SADC] Treaty that regulate (sic) its amendment’.Footnote 55 The SADC Treaty, and indeed other SADC instruments including the 2001 ProtocolFootnote 56 establishing the tribunal, require a two-third majority for amendment and dissolution of any SADC institutions.Footnote 57 Yet the court, beyond stating that the SADC instruments required a two-thirds majority, does not test whether the procedures under the SADC instruments were complied with or not. The closest to any kind of assessment of whether the impugned decisions were made in accordance with a procedure that was consistent with the relevant instruments is the assertion by the Court that instead of the ‘three quarters majority’, the Summit ‘sought to amend the Treaty through a protocol, thus evading compliance with the Treaty’s more rigorous threshold of three-quarters of all of its Member States’.Footnote 58 It states, without explanation, that the decision of SADC ‘evidences a failure to adhere to the provisions or proper meaning of the Treaty’,Footnote 59 without applying the methodology for treaty interpretation under international law.
An assessment of the adherence to the procedure of the SADC summit would require, first, an interpretation of the relevant instruments and second, the description of the procedure followed. The court does neither of these. It is the case that the while instruments require a two-thirds majority, the impugned decision by SADC was adopted by consensus. Whether the consensus procedure falls foul of the two-thirds majority requirement is a matter to be determined through interpretation. This is particularly the case since SADC only ever adopts decisions by consensus, even where a two-thirds majority is required.Footnote 60 This consensus-decision-making-process arguably constitutes subsequent practice within the meaning of article 31(3)(b) of the Vienna Convention, which should be taken into account in determining whether the SADC decisions are consistent with the relevant instruments.Footnote 61 As the International Law Commission has noted, subsequent practice under article 31(3)(b) of the Vienna Convention ‘may serve to clarify the meaning of a treaty by narrowing, widening or otherwise determining the range of possible interpretations, including any scope for the exercise of discretion which the treaty accords to the parties’.Footnote 62 It is worth mentioning that the Constitutional Court itself, in Zimbabwe v. Fick, accepted without question the amendment to article 16 of the SADC Treaty (concerning the tribunal), even though that amendment was adopted by consensus and not by a recorded vote.Footnote 63 There is thus a settled practice, over an extended period of time, in which SADC member states have made decisions by consensus, even where the requisite treaty provides for a threshold of two-third majority. This would indicate that the impugned decisions were adopted consistently with the ‘authentic’Footnote 64 interpretation of parties to the SADC instruments which ought to have been taken into account in the assessment of whether those decisions were procedurally valid.
In addition to not considering the role of subsequent practice, the court also failed to consider that adopting a new treaty, even one inconsistent with a previous treaty is not unlawful under international law. As a general matter, rules of international law, including treaty rules, are jus dispositivum and can be derogated from or modified by subsequent rules of international law.Footnote 65 This includes treaty rules concerning access to courts and certainly includes rules of amendments. The only exception to this basic rule of international law is the operation of peremptory norms of general international law (jus cogens).Footnote 66 It is clear that the court does not believe that the right of individual access to the SADC Tribunal is a peremptory norm since it accepts that the provisions could have been amended through the ‘correct procedure’. Nor does the court assert that the amendment provisions themselves are of a peremptory character. This being the case, the normal rules of successive treaties laid out in the Vienna Convention would, even if in the absence of the application of article 31(3)(b), be relevant. Article 59 of the Vienna Convention provides for the termination of one treaty by entry into force of another if ‘it appears from the later treaty or is otherwise established’ that the parties to the previous treaty intend for it to be replaced.Footnote 67 This rule is not subject to the provisions of the previous treaty.Footnote 68 The 2014 Protocol is explicit that the 2000 Protocol ‘is replaced with effect from the date of entry into force of’ the 2014 Protocol.Footnote 69 Even though the 2014 Protocol is inconsistent with the 2000 Protocol, it is hard to imagine how the adoption of a subsequent treaty repealing an old treaty – a situation contemplated by the Vienna Convention – could be unlawful. At any rate, the problem with the Court is not only its conclusion but also its failure to engage with the methodology of international law by addressing this and other rules of interpretation.
It is hard to imagine what policy space, or discretion, is left for the executive, after the SADC Tribunal judgment. To borrow from the words of Kaunda the Constitutional Court does not ‘give particular weight to the government’s special responsibility for and particular expertise in foreign affairs’ and certainly does not afford it ‘wide discretion … in determining how to deal’. Moreover, this judgment, again contrary to the admonition of Kaunda, substitutes its own policy preferences for those of the government: the government, as a policy matter, accepted the position of other SADC members to have a tribunal without individual access, but the court preferred a tribunal with such access. The judgment provides a good illustration for why courts should avoid replacing their own policy-preferences for the government’s, particularly in the area of foreign relations. The judgment treats the executive’s participation in the decision of 2012 to dissolve the SADC Tribunal as a simple choice between supporting the shuttering or not. It shows a complete ignorance for the fact that states have other choices, including not blocking consensus of decisions they are not fully supportive of, or of being agnostic. The court does not even grapple with the decision-making processes to determine whether there was a vote, or if the decisions were adopted by consensus, if there was a vote whether South Africa supported the motion or abstained. Under the SADC Tribunal judgment, the decision of the South Africa to support, abstain from or not support, a resolution in any organ of an international organisation, including the UN General Assembly, the United Nations Security and the African Union, can be overturned by the courts if the decision does not accord with the policy preferences of the court.
B The Democratic Alliance cases
The SADC Tribunal judgment is notable not only because it is handed down by the apex court, but also because of how far-reaching it is. The judgment concerned the type of decision that one would expect a court to give the greatest of discretion to the executive – one that took place outside the borders of the country, concerned organs of an international organisation and had little impact on South African law or South African circumstances. Yet the erosion of the discretion of the executive by the courts is not isolated. Two cases brought by the Democratic Alliance and decided by the High Courts of Gauteng – the Grace Mugabe and Withdrawal decision – provide further examples of decisions by courts concerning the exercise of discretion by the executive in foreign affairs.
The Grace Mugabe judgment concerned the decision of the South African foreign minister to confer immunities on Grace Mugabe, at the time the spouse of Robert Mugabe (then head of state of Zimbabwe).Footnote 70 The decision emanated from the now infamous alleged assault by Grace Mugabe on a South African woman, Gabriella Engels, in Johannesburg. The assault took place during the SADC summit of 2017 but before the arrival of Robert Mugabe – although there is some dispute as to whether Grace Mugabe was in South Africa for the summit or for personal reasons, this question is in fact immaterial to the legal issues and the question of the discretion. The decision was made pursuant to section 7(2) of the Diplomatic Immunities and Privileges ActFootnote 71 which provides as follows:
The Minister may in any particular case if it is not expedient to enter into an agreement as contemplated in subsection (1) and if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette.
In the midst of a media storm surrounding the events, and in response to a note verbal from the Embassy of Zimbabwe, the minister conferred immunity on the First Lady in accordance with section 7(2) of the act. In a letter to the National Commission of Police, the Director-General of the Department of International Relations and Cooperation stated that the discretion accorded to the minister under the section was not absolute and required ‘the Minister to consider all the facts and circumstances’ and further noted that any decision she takes ‘must be reasoned’.Footnote 72 The letter provides a detailed account of the facts and circumstances taken into account by the Minister, but these can be summarised as follows:
(i) the rule of law and the need to ensure that the law protected South African citizens;
(ii) that Grace Mugabe was the First Lady of neighbouring and that prosecuting her would negatively affect relations between South Africa and Zimbabwe and may even affect relations between South Africa and other African states;
(iii) that South Africa was chair of SADC and the ongoing SADC Summit would be thrust the SADC Summit into chaos if the First Lady were arrest and prosecuted; and
(iv) that under customary international law spouses of heads of state were entitled to derivative immunity.
The court, however, declared that the decision of the minister was unconstitutional and set it aside it. First, it cast doubt on the assertion that spouses of heads of state are entitled to derivative immunity ratione personae. Although derivative immunity of the immediate family of a head of state, especially the spouse, is generally accepted,Footnote 73 the court dismisses the contention on the basis that ‘at least two other national courts’ have rejected this view.Footnote 74 Yet, both cases relied on by the court are not authority for the view that spouses of heads of state are not immune from the foreign criminal jurisdiction. First, the Belgian judgment in Mobutu v. SA Cotoni,Footnote 75 cited by the court did not concern immunity from criminal jurisdiction but rather immunity from civil jurisdiction. These two types of immunities are different and cannot just be conflated.Footnote 76 An illustration of the fact that, as a matter of international law, the rules pertaining immunity in civil proceedings ought not to be simply transposed to immunity in criminal proceedings, is the Jurisdictional Immunities of States case, where the International Court of Justice, while concluding that there are no jus cogens exceptions to immunity from civil jurisdiction, noted that the same was not necessarily true for immunity from foreign criminal jurisdiction.Footnote 77 This is not to say that rules relating to civil proceedings are not at relevant at all, since they have been used as a basis to define the head of state as including their spouses.Footnote 78 Second, the Belgian court in the Mobutu case did not exclude derivative immunity of the immediate family. Rather, that Court excluded the children of the president of Zaire from the scope of such derivative because they had reached and passed the age of majority and, as such, were not his immediate family. The same is true of the other authority relied on, namely W v. Prince of Liechtenstein, in which the Austrian Supreme Court denied derivative immunity.Footnote 79 As in the Mobutu case, W v. Prince of Liechtenstein concerned civil immunity and, more importantly, derivative immunity was excluded not because the Court did not recognise its existence but rather because sisters and brothers of the head of state were not regarded as part of the immediate family. If anything, these authorities would support derivative immunity but restrict its scope of application to the immediate family, which the spouse of a head of state would most certainly be. The relevant part of paragraph 24, in which these two cases are discussed, is in fact taken, verbatim from the preliminary report of the International law Commission Special Rapporteur on the topic of immunity (and sometimes without acknowledgement).Footnote 80 However, the judgment is misleading and quotes the report out of context. In the report, in the preceding paragraph, the special rapporteur confirms the view of the minister that this ‘jurisdictional immunity … also extends, in such circumstances, to the closest accompanying family members …’.Footnote 81 Having referred to the two cases utilised as the only two cases in which derivative immunity was denied,Footnote 82 the special rapporteur then places them in context by stating that ‘in the two cases … in which the courts declined to recognise the immunity of the’ the relevant family members ‘the rulings were based on the fact that the persons concerned were not among the immediate family of the Head of State and were not dependent on him’.Footnote 83 The court’s use of these authorities is thus, at best a misunderstanding, and at worst a misrepresentation of the authorities in question. The false impression is also created in the judgment that the Kolodkin report rejected spousal immunity while the report clearly believed spousal immunity to be part of customary international law.Footnote 84
The court’s judgment is based on another significant error. The court relies on section 6(a) of the Foreign States Immunities Act which, according to the court, excludes the immunity of Mr Mugabe in cases of ‘death or injury of any person’.Footnote 85 If, so the understanding of the court goes, Robert Mugabe did not enjoy immunity because section 6(a) excludes of the Foreign States Immunities Act excludes immunity in the case of ‘death or injury’, then Grace Mugabe could not, herself, have enjoyed immunity as it was derivative. This reflects a complete lack of understanding not only of international law but of the immunity legislation in South Africa. Immunity ratione personae from foreign criminal jurisdiction is not addressed at all in the Foreign States Immunities Act which addresses the immunity of the state itself from civil proceedings.Footnote 86 Immunity ratione personae from foreign criminal jurisdiction in South Africa is governed by the Diplomatic Immunities and Privileges ActFootnote 87 and, as recognised by the Supreme Court, it knows no exception both under international law.Footnote 88 According to the court, in the Al Bashir judgment, the only exception is the relation to International Criminal Court arrest and surrender proceedings.Footnote 89
On the basis of these two flawed bases, the court decides to overturn a decision of the executive based on a discretion expressly granted by legislation. It does not even assess whether the discretion was exercised correctly. The discretion accorded to the executive in the conduct of foreign relations in Kaunda and confirmed by the Diplomatic Immunities and Privileges Act is ignored in favour of the policy preference of the judiciary. Let me pause to say, it is correct that at the time judgment Grace Mugabe did not, under customary international law, enjoy the derivative immunity referred to in the decision of the minister, because that immunity applies only to the spouse of a sitting head of state and when in the presence of the head of the state. The question is not whether Grace Mugabe had immunity or not, the question is whether the minister had the right, acting under the Diplomatic Immunities and Privileges Act and in the exercise of the executive competence in foreign relations, to confer such immunities.
The second Democratic Alliance case, the Withdrawal judgment, concerned the decision of the South African government to withdraw from the Rome Statute of the International Criminal Court without parliamentary approval. The reasoning in the Withdrawal judgment is not as objectionable as the SADC Tribunal and Grace Mugabe judgment. Indeed, though I don’t fully agree with the decision, I believe it is a reasonable judgment and, at least on the surface, perhaps even more rational than what I believe is the objectively correct interpretation of the law.Footnote 90 As the court stated, the Withdrawal judgment concerned ‘the separation of powers between the national executive and parliament in international relations and treaty-making’.Footnote 91 In this case, the High Court determined that South Africa could withdraw from a treaty entered into after the approval of parliament, only after parliament itself had approved the withdrawal. According to the court, ‘there is no question that the power to conduct international relations and to conclude treaties has been constitutionally conferred upon the executive’.Footnote 92 This power, however, is not unfettered and requires ‘the national power to engage parliament’.Footnote 93 In this context, it accepts that ‘the formulation of a policy to withdraw from the Rome Statute therefore no doubt falls within the national executive’s province’.Footnote 94 However, in the view of the court, the ‘approval of an international agreement’ by parliament ‘creates a social contract between the people of South Africa’ and the national executive, requiring parliamentary approval before the executive seeks to withdraw from an agreement so approved.Footnote 95
Although I do not share in this interpretation, I am not inclined to be too critical of this decision, nor would I ascribe it necessarily solely to the emergence of the ‘Zuma jurisprudence’. This is because the reasoning seems logical and is not based on any obviously flawed logic. There is, however, an alternative construction of section 231(2) of the ConstitutionFootnote 96 which would grant greater autonomy to the executive in the conduct of foreign relations – for the record, this alternative interpretation was never presented by counsel for the government whose argument were rather convoluted.Footnote 97 My own reading of section 231(2) is that it requires parliament to approve international agreements before the executive can ratify such agreements. Yet, the approval by parliament is nothing more than that – an approval or, to put it more colloquially, permission to ratify. The approval itself does not bind the republic to the obligation contained in the treaty nor does it bind the executive into ratifying the relevant treaty. The approval is intended to confirm that the treaty is consistent with South Africa’s legal framework and that the executive may, if it wished, proceed with the ratification process.Footnote 98 If approval is nothing more than permission to become party, then whether South Africa becomes a party to the said treaty or not, or becomes party and then decides to withdraw, does not undermine the parliamentary approval. To put it simply, parliamentary approval establishes a right to join the treaty not an obligation to become (or remain) a party. This, however, is only one possible approach to section 231(2) – one which would give the executive greater discretion to make policy choices in foreign relations – and the Court chose another, equally reasonable approach.
IV Conclusion
Under the South African constitutional framework, all exercise of public power is subject to judicial review to ensure consistency with the constitution. This includes the executive’s conduct of foreign relations. Yet the Constitutional Court has, in several judgments, recognised that the nature of foreign relations requires significantly more discretion for the executive than the exercise of public power in other contexts. The test established by the Court to determine whether that conduct in foreign relations is consistent with the Constitution is rationality. Under this general test, the executive should be given a wide margin of discretion and the courts should interfere with policy choices made by the executive only in exceptional cases. Moreover, the courts should avoid substituting their own policy preferences for those of the executive. With the exception of one case of the High Court, which was eventually overturned by the Supreme Court of Appeal,Footnote 99 in the pre-Zuma era, the courts did not unnecessarily intervene unless there was a clear and unjustified breach of the constitution.Footnote 100
In the Zuma era, while the courts have continued to pay lip-service the constitutional doctrine of deference, they have shrunk the discretion accorded to the executive to the extent that it is nothing but an empty shell. Under this new judicial oversight framework, it is the courts, based on the policy preferences of the judges, who determine what treaties South Africa may or may not enter into, whether to call for a vote or accept consensus in international forums, how and whether to vote where a vote is called for in such forums and whether to accord or not to accord immunities. While, given the Zuma administration’s corruption-riddled tenure, very often the courts’ policy preferences are understandable, it is a dangerous path when courts begin to assume the role of policy-maker, no matter how laudable the policy may be – after all, the road to hell is paved with good intentions.
It is still too early to tell whether the Zuma-era approach will continue in the Ramaphosa era, particularly since not a single foreign relations-related decision of the Ramaphosa administration is yet to be challenged. However, because the courts have, while constraining the discretion of the executive, maintained, at least as rhetoric, the Kaunda balance, underdoing the Zuma-era jurisprudence should not be too difficult.
A core challenge for foreign relations law – as with all public law – is how to constrain decision-makers and yet enable them to be effective. Power and flexibility are necessary to successful governance, but they are also the keys to despotism. The challenge of this conundrum underlies much of political theory and constitutional law.
In the United States, the original solution was an innovative distribution of powers between various branches of government. The Framers of the US Constitution gave certain powers to Congress, as set forth in the Constitution’s Article I, and certain powers to the President, as set forth in its Article II.Footnote 1 A third branch – the courts – could resolve constitutional disputes between these branches in appropriate cases. By disaggregating government into separate strands, the Framers believed that these ‘constituent parts may, by their mutual relations, be the means of keeping each other in their proper places’.Footnote 2
Over time, however, this distribution of powers has changed with respect to foreign affairs. The core story, often told, is of the rise of presidential power.Footnote 3 The original constitutional design sought to require congressional approval for non-defensive uses of force, Senate approval for important international agreements, congressional control over international commerce, and arguably a general principle of congressional control with respect to foreign affairs. Yet in today’s world, the President has considerable authority to initiate non-defensive uses of force, make international agreements without Senate approval, act in relation to foreign commerce without the assent of the current Congress, and more generally assert the ‘lion’s share’ of control over foreign affairs.Footnote 4
As the scope of the President’s power has grown, however, it has also become subject to more process-based requirements. Transparency and regularity are now often expected and not infrequently mandated with respect to uses of executive power related to foreign affairs. These requirements do not stem from the US Constitution but rather from a web of diffuse sources, including US congressional law, US executive branch practice, and various aspects of international law. This new set of constraints serves to some degree as a substitute for the original constitutional constraints.
This book chapter describes these twin developments in relation to presidential foreign affairs power – the erosion of scope-based checks and the rise of process-based checks. It argues that international law has played a role in both developments. In closing, it considers the extent to the changes described here may have relevance for the practice of other nations.
Throughout the chapter, the terms ‘scope-based’ and ‘process-based’ are used in a distinct and perhaps idiosyncratic way. They are used not in relation to the entire power of the federal government, but rather more narrowly in relation to the power of the President and the executive branch that works under him or her. The term ‘scope-based’ (and related terms) refer to what the President has the legal authority to do as a matter of domestic law amid congressional silence. The term ‘process-based’ (and related terms) refer to how this legal authority is to be exercised. By way of example, the question of whether the President has the domestic legal authority to bomb Syrian government facilities in response to Syria’s use of chemical weapons against its own citizens is treated here as an issue of scope. By contrast, the question of whether, with respect to such a use of force, the President has satisfied any legal requirements relating to notice, consultation, reporting, and reasoned decision-making is treated as an issue of process. Distinctions between scope and process are always complicated at the margins, but the two concepts nonetheless serve as useful frames for thinking about the scope of executive power.Footnote 5
I The Erosion of Scope-Based Constitutional Checks on the President’s Foreign Relations Powers
Perhaps inevitably, consideration of US foreign relations law starts with the US Constitution. Its Framers sought to provide the US government with a full panoply of foreign affairs powers, but they spread control over these powers between Congress and the President. In the years since, however, the scope of presidential power has increased. The President now considers himself or herself able as matter of scope to undertake a vast swath of decision-making related to US foreign affairs without the affirmative approval of Congress.
By way of illustration, consider the following four foreign affairs powers:
‐ Uses of Force. The text of the Constitution allocates to Congress numerous powers related to war, including the power to declare war, while making the President commander-in-chief.Footnote 6 Over time, however, the President has come to assert more and more concurrent power with respect to the initiation of uses of force.Footnote 7 The US executive branch still recognizes that a full-scale war likely requires congressional authorization, but many substantial uses of force in the twentieth and twenty-first centuries have been initiated without congressional authorization.Footnote 8
‐ International Agreements. The text of the Constitution provides that the President shall have power to make treaties with the advice and consent of two-thirds of the Senate.Footnote 9 While some agreements do still go through this process, in practice Presidents have also come to make international agreements, including very important ones, through several other alternative processes. Some of these agreements are made with clear congressional authorization, but others are made by the executive branch acting either alone or in reliance on a vague statutory provision.Footnote 10 These agreements may not have the power to alter US domestic law, but they can serve as binding international commitments on the part of the United States.
‐ Commerce. The text of the Constitution provides Congress with the authority to regulate foreign commerce.Footnote 11 Unlike with respect to uses of force and international agreements, the President typically does not assert independent constitutional authority over foreign commerce. Nonetheless, the President has very substantial control in practice over the regulation of foreign commerce, as existing congressional statutes delegate considerable authority in this domain to the President. The imposition of the various tariffs by the Trump administration are recent examples.Footnote 12
‐ Overall Control over Foreign Affairs. The text of the Constitution does not set forth a general foreign affairs power. It is at best debatable whether the text of the Constitution should be read as granting such a power to the President, and indeed there is considerable evidence from the timing of the Framing suggesting that if such a power exists, it should lie with Congress.Footnote 13 Nonetheless, such a power is often asserted by the executive branch to lie with the President.Footnote 14
The rise of the President’s foreign affairs powers undoubtedly has multiple causes. In a famous concurring opinion written during the 1950s, Supreme Court Justice Robert Jackson pointed to the political prestige of the President, the rise of the party system, and the perceived need to address urgent situations over time as likely causes for ‘the gap that exists between the President’s paper powers and his real powers’.Footnote 15
The structure of the international legal system may itself have contributed to the rise in the President’s foreign affairs powers vis-à-vis Congress.Footnote 16 At various points in time Presidents or their lwyers have pointed to international law in justifying claims of presidential power. With respect to war powers, for example, executive branch actors drew on nineteenth-century international legal conceptions of sovereignty in defending a unilateral presidential authority to use force in the protection of citizens abroad.Footnote 17 Also in the nineteenth and later in the twentieth century, Presidents and their lawyers pointed to international law in arguing for a narrow construction of what amounts to a ‘war’ requiring congressional approval.Footnote 18 With respect to international agreements, executive branch decision-makers also sometimes drew on international legal principles in defending the domestic constitutional right of the President to enter into these agreements without the advice and consent of the Senate.Footnote 19
That the President’s scope-based foreign affairs powers have grown vis-à-vis Congress does not mean that these powers are without scope-based limits. There remain some situations in which the President needs congressional approval in the domain of foreign affairs, although the contours of these situations are often ill-defined. And while preexisting congressional law often serves to authorize presidential action with respect to foreign affairs – as in the example of tariffs – there are also some statutes that place limits on the President’s foreign affairs powers.Footnote 20 Additionally – and importantly – there are limits on presidential power separate and apart from those grounded in the separation of powers. The President is also subject to limits stemming from international law and from constitutional protections for individual rights.Footnote 21 For all these limits, however, the scope of presidential power remains vast with respect to foreign affairs.
II The Rise of Process-Based Checks on Presidential Power
There is a corollary to the rise of the President’s scope-based powers. This is the development of more process-based rules with respect to how the President should exercise foreign affairs powers. These rules are not grounded in US constitutional law, but rather come from congressional statutes, executive branch regulations, and broader principles of public law manifested through the practice of the US administrative state. Significantly, some of these process-based limits also stem from international law or more generally from the way in which the US executive branch interfaces with the international legal system. Although the limits imposed by these process-based checks are different in nature from scope-based checks, they nonetheless have a constraining effect on presidential power.
A Process-Based Checks Grounded in US Domestic Law and Practice
The Framers of the US Constitution were not solely interested in deciding who had the power to do what. They also had an interest in how power was exercised. They were conscious of the values of transparency and orderly process, though recognizing that aspects of some foreign affairs might benefit from secrecy. This consciousness, however, did not manifest itself in the form of procedural rules set out for the executive branch about how to conduct its business, including its foreign policy. What few procedural rules there were instead were aimed at Congress, including a clause encouraging Congress to establish Rules of Proceedings and another clause requiring it to publish Journals of Proceedings.Footnote 22 The issue of process rules for the executive branch was not one which they addressed in the text of the Constitution, other than some thin provisions about consultation with ministers and with Congress that left considerable room for presidential discretion.Footnote 23
The absence of process-based requirements on the executive branch in the text of the US Constitution does not mean that such requirements are absent from US foreign relations law. Rather, these process-based requirements exist, but they are deemed to be nonconstitutional in nature.
Congress is one important source of process-based limits on the President’s foreign affairs powers. The War Powers Resolution passed by Congress in the 1970s requires the President to meet certain consultation and reporting requirements with respect to the initiation of hostilities.Footnote 24 The Case-Zablocki Act similarly sets out various process-based requirements for the executive branch to follow with respect to international agreements that are not made through the process set out in the Constitution’s Treaty Clause, including a reporting requirement.Footnote 25 Both of these statutes were passed against a backdrop of congressional recognition that the President’s foreign affairs powers had grown in scope since the time of the Framing. They therefore reflect, at least in part, a deliberate choice to make process-based limits available as a partial substitute for now eroded limits on scope. Similarly, in the trade context, trade statutes delegating power tend to fold in some process requirements.Footnote 26 In these statutes, Congress is both providing the executive branch with increased scope to exercise power and setting out requirements with respect to how it is to be exercised. Finally, separate and apart from statutes, the ‘soft’ oversight powers that congressional committees have in terms of opening investigations and holding hearings can serve as process-related incentives for thoughtful executive branch decision-making.Footnote 27
A second important source of process-based requirements is the executive branch itself. The President is the head of an enormous bureaucracy (or perhaps more aptly of many enormous bureaucracies). In the foreign affairs decision-making space, as with domestic affairs, the executive branch has developed numerous internal rules and procedures for how its affairs are to be conducted. Some such processes are set forth in executive orders issued by the President, which typically last across administrations in the absence of repeal.Footnote 28 Others lie within specific agencies. With respect to international agreements, for example, the State Department has long-standing regulations addressing the process by which these are to be made.Footnote 29
The importance of regular process can potentially be amplified by the expectations of US domestic courts. As mentioned earlier, US courts have developed a variety of doctrines related to jurisdiction and justiciability that can prevent them from reaching the merits of cases, and these doctrines can have particular power in cases related to foreign affairs. Where courts do have jurisdiction, however, they may be open to claims of procedural irregularity or pretextual decision-making. The fast-and-loose approach to procedure that characterized so much of the Trump administration was plainly a source of concern to many judges, even though one of its most dubious decisions was upheld by a closely divided Supreme Court.Footnote 30
B Process-Based Checks Grounded in the Interface with International Law
The international legal system itself provides some process-based checks as well. So much of foreign relations law is about engagement through international organizations. With engagement through these systems comes acceptance of their process-based requirements. This is another way through which certain procedural norms, including transparency, can be brought to bear on the US executive branch.
One set of such process-based checks is tied to participation in the ordinary business of an international organization. While plenty of diplomacy is carried out in back rooms, various international legal regimes incorporate forms of transparency into their operating procedures. To give a simple example, the US executive branch cannot unilaterally keep all observers out of a major UN conference.Footnote 31 More generally, to the extent that international legal regimes are premised around open dialogue, the executive branch must engage in such dialogue in order to act effectively through the regimes.Footnote 32 Just as US executive branch actors are aware of the prospect of congressional oversight, so too are they aware of the prospect of international criticism. If the President chooses to invade Grenada, for example, his representatives must be prepared to defend this choice to the Security Council – and to cast a public veto of a resolution condemning this action.Footnote 33 Although the executive branch representatives are nominally defending the decisions of the United States, in practice the decisions they are defending are often ones made specifically by the President as opposed to ones that are also explicitly authorized by Congress.
A further set of process-based checks could potentially stem from the way in which international legal regimes use reporting and review mechanisms as enforcement devices. Partly because of the difficulty in getting states to agree to other remedies, treaty regimes rely heavily on reporting requirements. This is true with regard to many substantive areas of international law and especially in the human rights context.Footnote 34 The reporting process can both shine a light on state behavior and serve as a focal point for international and domestic pressure aimed at particular state polices.Footnote 35 Because of the relative insularity of the United States and the various other ways in which information related to the United States is transparent, it is unclear how much additional transparency these reporting requirements bring to US practice. But at least in theory, they are another way in which the executive branch must publicly account for its choices – and more generally for US behavior.
C Presidential Power in an Age of Process-Based Checks
As Congress’s scope-based checks on presidential power have dwindled, process-based checks have grown. It is difficult to measure the practical effect of this trade-off. Process-based checks are not as formally robust as scope-based checks. They do not serve as an absolute bar to action, but rather go to how the decision to undertake this action should be reached and to what extent the action and the related decision-making process should be done in a way that is transparent and therefore subject to evaluation and criticism. Are these lighter process-based checks more or less normatively desirable than robust scope-based checks? The answer may depend upon the particular context. It is possible, for example, to be supportive of the current system with respect to the making of international agreements yet more skeptical about it with respect to uses of force.
The presidency of Donald Trump tested the power of process-based checks. Executive branch lawyers in the Trump administration took robust positions on the scope of presidential powers. This was true both with respect to the President’s constitutional powers and with respect to how broadly to read preexisting delegations in congressional statutes. At the same time, the Trump administration showed little respect for orderly internal process within the executive branch.Footnote 36 Yet the Trump administration remained subject to process constraints in other ways, including from Congress. With respect to the use of force, for example, Congress lacked the votes necessary to override a presidential veto and impose scope-based checks on presidential power.Footnote 37 But in 2018 and 2019 Congress legislated to incorporate stronger reporting requirements with respect to the legal and policy justifications offered by the executive branch for uses of force.Footnote 38 It remains to be seen what long-term effects, if any, such process-based requirements have on the outcomes of presidential decisions with respect to foreign relations.
III Scope, Process, and Comparative Practice
US foreign relations law offers a unique set of bridges and boundaries. With its presidential system of government, eighteenth-century constitutional text, and distinctive role on the international stage, the United States has developed a set of foreign relations law practices that are all its own and that are often impenetrable. For the lay person, the well-educated lawyer, the foreign practitioner – maybe everyone but the expert in the specific field, US foreign relations law is excruciatingly hard to understand. Indeed, one of the ironies of the shift from scope-based limits to process-based limits described above is that it is untransparent to most observers.
Other countries undoubtedly strike different balances between scope-based checks and process-based checks on the power of the executive. In the United Kingdom, for example, there has been a recent rise in scope-based checks on executive power, including the developing constitutional convention requiring parliamentary authorization for certain uses of force and the UK Supreme Court’s decision that parliamentary approval would be required for the treaty withdrawal underlying Brexit.Footnote 39 In Germany, the Basic Law was amended in the 1990s such that the new Article 23 set forth both scope-based and process-based limits on executive branch decision-making with respect to German participation with the European Union.Footnote 40 These developments place constitutional limits on executive power in foreign affairs, unlike the US pattern of long-standing erosion of such limits.
Although the US trajectory of limits on executive power in foreign relations law may be distinctive to the United States, the impact of this trajectory has broader implications. The transition between the Obama administration and the Trump administration demonstrated the instability that can come from the combination of strong presidential foreign affairs powers and a polarized US electoral process. In the future, it is possible that the US Supreme Court will restore more scope-based checks on the President’s foreign affairs powers or that Congress will reclaim some powers with respect to trade and other economic sanctions that it has delegated to the President. But unless and until that happens, continuity in US foreign relations practice will depend heavily on process-based constraints.
I Introduction
The legal issues of foreign relations fall within the area between international law and the national law of particular states.Footnote 1 These problems may therefore be analyzed from both or either of these points of view. The following considerations will be conducted from the perspective of Polish law. In this legal system, foreign relations law is not treated as a separate branch but as part of constitutional law. Along the axis: exceptionalism – normalization,Footnote 2 Polish law is situated on the side of the latter.
The political and socioeconomic transformations of the state began in the late 1980s and early 1990s. The foundations of liberal democracy and market economy were laid then. As early as in 1989, the first changes to the then binding Communist constitution were introduced and developed in the following years. The current Constitution dates from 1997.Footnote 3 It should be added that Poland joined the European Union in 2004.Footnote 4
An examination of the rules concerning foreign relations in a state that regained its sovereignty relatively recently, after the liberation from Soviet domination, deserves attention. Poland was previously unable to pursue an independent foreign policy. The following considerations will focus on how foreign relations are regulated in the provisions of the Polish Constitution and constitutional practice and analyze both executive powers and activities of the Parliament in the field of foreign relations. This matter will be presented in the broader context of the features of the state’s political system which have been shaped and have been evolving since 1989.
II The Polish Constitution, International Law and Separation of Powers
There is an important provision in the Constitution which determines the place of international law in the national legal order.Footnote 5 Pursuant to article 9, ‘[t]he Republic of Poland shall respect international law binding upon it’. In addition, the Constitution regulates the functions, tasks and competences of state authorities in the field of foreign relations. It is worth noting that the aforementioned issues were not regulated in the Constitution during the communist times.
Foreign relations form a separate area of state activity. Their specificity lies in their being directed outside of the country and towards foreign partners. Despite these specificities, foreign relations should be treated as a part of the general policy of the state together with its internal policy or, rather, with many policies in particular areas of the state’s activity.Footnote 6 Consistency of all policies and rules and compliance with constitutional values is therefore required.Footnote 7
The starting point for further analysis is one of the main principles of the Polish constitutional and legal system: the separation of powers. It is expressed in article 10 of the Constitution of 1997:
(1) The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
(2) Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.
The principle of separation of powers was restored in Poland in the early 1990s. Previously, the principle of ‘unity of state power’ had applied for several decades. The highest authority of state power was formally the Sejm (Parliament), although in reality the state was governed by the communist party.
An analysis of the current legal arrangements in the field of foreign relations shows that the tasks and competences in this area are granted to authorities belonging to different branches although their participation is unequal. The roles that have been provided for the various state authorities in this area are, on the one hand, a manifestation and, on the other, a result of the constitutional system which has been adopted.
III Executive Powers in the Field of Foreign Relations
The executive power is of the utmost importance in this area and will receive a great deal of further attention. This is not surprising; on the contrary, it is a typical situation in many states with a long tradition.Footnote 8
A characteristic of the executive branch in Poland is its duality expressed in article 10(2) of the Constitution. Functions, tasks and competences are vested separately in the President and the Council of Ministers (the Government). The duality was introduced by the first constitutional amendments after the collapse of the communist system in 1989. The constituent authorities of the executive are separated from each other and each have their own legitimacy.
Article 127(1) and (2) provide
(1) The President of the Republic shall be elected by the Nation, in universal, equal and direct elections, conducted by secret ballot.
(2) The President of the Republic shall be elected for a 5-year term of office and may be re-elected only for one more term.
The President therefore derives his democratic legitimacy directly from the will of the sovereign nation.
In turn, the Council of Ministers (the Government) benefits from the support of the parliamentary majority in the Sejm – the first chamber of the Polish Parliament. The Government’s legitimacy therefore derives from the principles of representative democracy (articles 4(2), 154 and 155).
The issues of foreign relations law in Poland concern largely the distribution of tasks and competences between these two segments of the executive power. The tasks and competences of both segments in the area in question have undergone a characteristic evolution after the change of the political system in 1989.
A The Temporary ‘Small Constitution’ of 1992 and Separation of Powers between the President and the Council of Ministers
In 1992, a law of constitutional rank, commonly referred to as the ‘Small Constitution’, was passed, which was intended to be temporary.Footnote 9 The need to issue it came about when it turned out that it would take more time to pass a new, ‘full’ Constitution, because of the controversy surrounding its future content.Footnote 10
It is important to note that the tasks and competences in the field of foreign relations were not clearly separated in the Small Constitution between the two executive segments, that is, the President and the Council of Ministers. They were assigned to both of these authorities.Footnote 11
The Small Constitution stated in article 28 that:
(1) The President of the Republic of Poland shall be the supreme representative of the Polish State in internal and international relations.
(2) The President shall ensure observance of the Constitution, safeguard the sovereignty and security of the State, the inviolability and integrity of its territory as well as upholding international treaties.
In addition, article 32(1) provided that ‘The President shall exercise general control in the field of foreign relations.’
In turn, as regards the second segment of the executive, the Small Constitution provided in article 51(1) that ‘[t]he Council of Ministers shall conduct the internal and the foreign policy of the Republic of Poland’. Furthermore, article 52(2) point 7 stated that ‘[t]he Council of Ministers shall maintain the relations and shall conclude treaties with governments of other states and with international organisations’.
It followed from the cited provisions that the separation of tasks and competences between the President and the Government was difficult.Footnote 12 It was impossible to easily separate the ‘exercising of the general control in the field of foreign relations’ which was the competence of the President, from ‘conducting the internal affairs and the foreign policy of the Republic of Poland’ which, in turn, was the responsibility of the Council of Ministers. The reasons for the imperfections of these provisions were largely due to the complex political situation. Many small parties were represented in the Parliament in the early 1990s, which made it difficult to achieve a stable majority for a clear concept of executive power. As a result, compromise solutions were adopted, which were not very consistent though.Footnote 13 The state of the then constitutional provisions posed a risk of establishing two separate foreign policies, specifically when the President and the Government came from different political parties.Footnote 14 The legal concepts contained in the Small Constitution could create conflicts and tensions, especially as the President sought to expand his competences at the expense of those of the Government.Footnote 15 It also had to do with the strong personality of President Lech Wałęsa. For example, the President caused the development of the practice of his consenting to the appointment of the Foreign Minister and the National Defence Minister by the Sejm. It happened, although according to its article 61, the Small Constitution provided for the President expressing only a legally nonbinding opinion. It should be concluded, however, that despite the aforementioned problems and controversies, the unity of Polish foreign policy was not threatened.Footnote 16
B The Constitution of 1997 and ‘Rationally Modified Parliamentarianism’
1 Predominance of the Council of Ministers in Foreign Affairs
The legal structures of the presently binding Constitution of 1997 are partly a reaction to the above mentioned provisions of the Small Constitution and doubts as to their application.Footnote 17
The intention of the founders of the Constitution was to eliminate the overlap of tasks and competences between the Government and the President and avoid the danger of potential conflicts. Therefore, the Constitution made a stricter separation of the role of the two segments of executive power. This pertained not only to the area of foreign relations even though it became most conspicuous there.Footnote 18
During several years of work on subsequent draft constitutions, various political models and relations between the authorities were considered, referring to both the experiences of previous years of political transformation and models taken from other states. The proposals included both the presidential system with a dominant role of the President, and the parliamentary and cabinet system with a strong government and a ceremonial role of the President. Various intermediate solutions were also proposed.Footnote 19
As a result, a concept was adopted which is not the realization of any of the above models in their pure form. The constructions expressed in the Constitution are referred to as the adoption of the model of ‘rationally modified parliamentarianism’,Footnote 20 even though it is not a commonly used expression. It is characterized by a strong position of the Council of Ministers and of the Prime Minister, supported by the parliamentary majority. The President does not play a decisive role in this model. However, his functions and tasks are not purely representative and decorative. They are more important, although limited.Footnote 21 It can only be added, as a side note, that the aforementioned expression departs from the term parlementarisme rationalisé known in the French constitutional law literature.Footnote 22 A comparison of the two segments of the executive power leads to the conclusion that the Constitution gave priority to the Council of Ministers (the Government). In particular, the Council of Ministers, headed by the Prime Minister, was entrusted with conducting foreign policy.Footnote 23
The limitation of the President’s competences in the field of foreign relations resulted from the already mentioned intention to eliminate the phenomenon of overlapping tasks and competing powers by both segments of the executive. It should be noted that the inconsistencies that occurred before the entry into force of the Constitution could theoretically be removed by granting a dominant position to either the Council of Ministers (government) or the President. The decision of the authors of the Constitution to adopt the first of these solutions can be partly explained by the intention to weaken the influence of President Lech Wałęsa, who, for all that, had lost the presidential election even before the Constitution was passed.
The provisions of the Constitution illustrate the assessment presented above.Footnote 24 In accordance with its article 146(1), ‘[t]he Council of Ministers shall conduct the internal affairs and foreign policy of the Republic of Poland’. Furthermore, the Council of Ministers ‘exercise[s] general control in the field of relations with other States and international organizations’ (article 146 paragraph 4 item 9) and ‘conclude international agreements requiring ratification as well as accept and renounce other international agreements’ (article 146 paragraph 4 item 10). The provisions set out above were supplemented by a general clause in article 146(2), according to which ‘[t]he Council of Ministers shall conduct the affairs of the State not reserved to other State authorities or local government’. This implies a presumption of competence for the benefit of the Council of Ministers, amongst others, in matters of foreign relations, unless another provision explicitly confers competence on another state authority. The position of the Prime Minister who is the head of the Council of Ministers is also strong.Footnote 25
It follows from the abovementioned provisions that the Constitution granted to the Council of Ministers certain tasks and competences which had previously been vested in the President under the Small Constitution. This reduced the risk of conflicts which, however, could not be entirely avoided, as it would yet transpire.Footnote 26
2 The Constitutional Role of the President of the Republic in Foreign Affairs
The President’s role in the field of foreign relations based on the Constitution of 1997 is not unequivocal.Footnote 27 Generally speaking, his role has weakened in comparison with the previous legal status. The earlier formula that the President exercises general control in the field of international relations was not maintained because this task was assigned in the Constitution to the Government.
In order to present the role of the President in the light of the Constitution, it is necessary to distinguish his functions and tasks from his powers (competences). This distinction extends to the whole activity of the President, including the field of foreign relations.
The President’s most important functions defining his position in the constitutional setup of the state are set out in article 126(1) of the Constitution:
The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority.
In turn, the President’s main tasks are defined in article 126(2):
The President of the Republic shall ensure observance of the Constitution, safeguard the sovereignty and security of the State as well as the inviolability and integrity of its territory.
Commentators stress that article 126 of the Constitution indicates the symbolic role of the President as the authority embodying the state and the majesty of the Republic of Poland also in external relations.Footnote 28 The President performs this role, on a continuous basis, in various forms at home and abroad, often in a solemn manner. The above-mentioned provisions indicate the general position of the President as a defender of the most fundamental values of the state.
However, the provisions cited above alone are not a sufficient source of the powers for the President to adopt legal acts or undertake other activities having legal effects.
With regard to the President’s powers, the Constitution has adopted the concept expressed in article 126(3):
The President shall exercise his tasks within the scope of and in accordance with the principles specified in the Constitution and statutes.
This means that for the President’s actions to have legal effects there must be legal basis contained in specific provisions of the Constitution apart from article 126 or in the legislative acts of Parliament.Footnote 29 There is therefore no presumption that the President has the competence for the performance of its tasks, since such presumption is provided for the Council of Ministers (article 146(2)). The actions of the President which have legal effects are referred to in the Constitution as ‘official acts’ (article 141(1)).
An analysis of the Constitution shows that the provisions that define the President’s competence to undertake actions that have legal effects in the field of foreign relations are not numerous. Such is the nature of article 133(1):Footnote 30
The President of the Republic, as representative of the State in foreign affairs, shall:
1)ratify and renounce international agreements, and shall notify the Sejm and the Senate thereof;
2)appoint and recall the plenipotentiary representatives of the Republic of Poland to other states and to international organizations;
3)receive the Letters of Credence and recall diplomatic representatives of other states and international organizations.
These are competences traditionally held by the Head of State. It is noteworthy that ratification of some international agreements is of paramount importance, although the actual conclusion of agreements is a competence of the Council of Ministers (article 146(4) point 10). In turn, the President’s power to appoint ambassadors gives him the possibility to influence the staff policy in the foreign service.
The requirement for the President to have a specific legal basis for the exercise of his powers includes acts which produce legal effects (official acts). However, there are no restrictions for the President to undertake various types of activities that do not produce legal effects, but generate political consequences, domestically and abroad. From the legal point of view, they are treated as nonbinding actions.Footnote 31 They consist in making visits abroad, receiving representatives of other states, making speeches, declarations, etc. Sometimes the mere presence of the President in a particular place and time demonstrates the great importance Poland attaches to a given event. Such activity of the President serves the purpose of carrying out the functions and tasks contained in article 126(1) and (2) of the Constitution.
With regard to actions which have legal effects, that is to say, official acts, an important distinction should be made between the ways in which the President exercises his powers.Footnote 32
Some competences are carried out independently and do not require the approval of other state authorities. They are referred to in the legal literature as the President’s prerogatives. A closed catalogue of prerogatives is contained in article 144(3) of the Constitution. In the field of broadly defined foreign relations it is only the ordering of the promulgation of an international agreement in the Journal of Laws (Dziennik Ustaw) of the Republic of Poland that is in the nature of a prerogative (article 144(3), (7)).
In principle, however, official acts of the President require for their validity the signature of the Prime Minister (article 144(2)).
All of the aforementioned powers of the President set out in article 133(2) of the Constitution are exercised following this procedure. Making the issuance of the acts listed therein dependent on the countersignature of the Prime Minister additionally limits the role of the President in the field of foreign relations. It is the Prime Minister who bears political responsibility before the Sejm.Footnote 33
It should be noted that the dominant role of the Council of Ministers in the exercise of the executive power compared to that of the President, not only in the area of foreign relations, leads to the identification of a significant inconsistency.Footnote 34 As already mentioned, the President is elected by citizens in direct and universal vote. This model of election determines his strong democratic legitimacy, which, as a natural consequence, should give him broad powers. In the light of the Polish Constitution, however, despite the recognition of the President as the supreme representative of the Republic of Poland, his powers to carry out actions that produce legal effects are limited.Footnote 35 In such a state of affairs, Presidents have attempted to strengthen their position and reduce the discrepancies between the broad democratic mandate of the President and his political role on the one hand and the real influence in the field of internal policy and foreign relations on the other.Footnote 36 This happened especially in cohabitation situations when the President and the Prime Minister came from other political formations and that caused tensions.Footnote 37 The most conspicuous example of a conflict caused by the President’s belief that his powers are excessively limited was the dispute over the representation of Poland in the European Council.
3 Overlapping Competences and Duty to Cooperate
Despite the delineations made in the Constitution, some tasks in the field of foreign relations belong to both segments of the executive power.Footnote 38 The tensions this may cause between them could potentially be mitigated by the introduction of an obligation for the President to cooperate with the Government.Footnote 39 It is already the preamble that characterizes the Constitution of the Republic of Poland as ‘the fundamental law for the State, based on … cooperation between the public powers’.
The obligation in question has been made concrete in the context under consideration here in article 133(3) of the Constitution: ‘The President of the Republic shall cooperate with the Prime Minister and the appropriate minister in respect of foreign policy.’
This provision is to be understood as an obligation of the President to cooperate with the Prime Minister and the Minister of Foreign Affairs in various forms. The obligation to cooperate is assumingly not unilateral, but lies with the Prime Minister and the Minister of Foreign Affairs, too. The provisions of the Constitution do not clarify what the cooperation is about: whether it is about mutual information, coordination of activities or whether it is required to bring about a consensus of positions. Cooperation may include agreeing on foreign policy directions as well as coordinating actions on the international arena. It should be conducted in good faith with a view to avoiding conflicts.Footnote 40
C Constitutional Conflict over the Representation of Poland in the European Union
The Constitution was passed seven years before Poland acceded to the European Union. Therefore the Constitution does not contain any provisions relating to the EU and Poland’s membership therein. However, there are provisions in the Constitution that enabled Poland to become a member of the Union.Footnote 41 Article 90 of the Constitution contains ‘European clause’ which served as the political and legal basis for the accession to the Union. In turn, article 91 defined the position in the legal system in force in Poland of international agreements, including EU Treaties and the law established by international organizations, that is, also EU secondary law.
In 2009, the Constitutional Tribunal ruled on the conflict concerning who is to represent Poland in the European Council.Footnote 42 The President was of the opinion that it was his responsibility. The Prime Minister, on the other hand, who came from another political party, considered this to be a competence vested in the Government and did not agree to change the practice under which the Prime Minister sat on the European Council. The President was even denied access to a government plane to travel to Brussels. However, the President took part in the European Council meeting together with the Prime Minister. Thereafter, the Prime Minister applied to the Constitutional Tribunal to resolve the dispute over the competence to represent Poland in the Council. The Tribunal issued its first ever decision of this kind, based on article 189 of the Constitution.Footnote 43
In this ruling, the Tribunal settled the competence dispute by considering it in the wider context of the role of the state authorities in dealing with the EU institutions. It was important to establish whether the division of tasks and competences between state authorities in EU matters was the same as in the field of foreign relations. As the Constitution does not contain provisions on the separation of tasks and competences of both segments of the executive in relations with the EU, the Constitutional Tribunal decided to settle the competence dispute submitted to it on the basis of general constitutional provisions. The starting point was the conviction that relations with the European Union do not fall within the scope of either internal policy or external relations, but show, at the same time, the characteristics of both areas.
An analysis of the Constitution led the Constitutional Tribunal to the conclusion that it is the Council of Ministers (the Government) that is generally competent in European affairs due to its position as an authority with general power in the field of both home affairs and foreign relations. The Prime Minister, who heads the Government, is authorized to represent Poland in the European Council and to express Poland’s position in this forum.
However, there can be no question of the Government’s exclusivity in European matters. The constitutional position of the President as the supreme representative of the Republic of Poland and his tasks specified in article 126(2) of the Constitution, is not without relevance either. The Constitutional Tribunal stated that in (rather exceptional) cases, when issues falling within the scope of the President’s tasks would be discussed by the European Council, he may decide to represent Poland in this EU institution. In such situations, however, the President would be obliged to present the position determined by the Council of Ministers.
The Tribunal stressed that the state cannot pursue two foreign or European policies and the division of competences while ensuring the consistency of operation by all state authorities is essential.Footnote 44 An important place in the judgment under discussion is occupied by considerations concerning the obligation of the President to cooperate with the Prime Minister and the Minister of Foreign Affairs resulting from the already mentioned provisions of the preamble and article 133(3) of the Constitution.
The final conclusions of the Constitutional Tribunal’s ruling may be summarized as follows: in the first place the Tribunal put forward the principle of cooperation between the public powers, expressed in the Preamble and article133(3) of the Constitution of the Republic of Poland. The obligation to cooperate rests with the President of the Republic of Poland, the Council of Ministers and the Prime Minister (who presides over the Council of Ministers), while exercising their constitutional duties and powers. As a rule it is the Council of Ministers which determines the stance of the Republic of Poland to be presented at a given session of the European Council. The Prime Minister presents the agreed stance there (article 146(1), article 146(2) and article146(4), (9) of the Constitution). The President, as the supreme representative of the Republic, may, however, decide to participate in a particular session of the European Council, if he finds it useful for the exercise of his duties, specified in article 126(2) of the Constitution. The participation of the President in a given session of the European Council requires his cooperation with the Prime Minister and the competent minister in order to ensure uniformity of actions taken on behalf of the Republic of Poland in the relations with the European Union. Such a cooperation enables the President to refer to the stance of the Republic of Poland determined by the Council of Ministers. It also makes possible to specify the extent and manner of the intended participation of the President in a session of the European Council.
D The Role of the President of the Republic in Practice
1 The President As the Supreme Representative of the Republic of Poland
The constitutional arrangements outlined above according to which the President has a strictly defined and limited power to take actions with legal effect do not mean that successive Presidents are passive in the field of foreign relations. Indeed, Presidents are very active in this area.Footnote 45 This can be illustrated by the endeavors of Polish President Andrzej Duda in several months of 2019. During this time, the President made many foreign visits and met with his counterparts from other states. Sometimes the anniversaries of various important events were an opportunity to make such visits.Footnote 46 A separate category were multilateral conferences with Heads of State on a variety of political or social issues.Footnote 47 The President’s participation was aimed at emphasizing the significance and rank of these meetings and conferences for Polish interests.
The results of these visits were various documents signed by the Polish President and his partners from other countries. However, these were not international agreements and were not legally binding. They expressed the political will of the Republic of Poland and other participating countries.
2 The President As Commander-in-Chief of the Armed Forces of the Republic of Poland
Separate mention should be made of events in external relations with the participation of the Polish President where he acted not only as the supreme representative of the Republic of Poland (article 126(1)) guarding the sovereignty and security of the state (article 126(2)), but also as the Commander-in-Chief of the Armed Forces of the Republic of Poland (article 134(1)). An example of such activity is the participation of the Polish President in the meeting of the North Atlantic Council in London (3–4 December 2019) on the 70th anniversary of NATO and the signing of the London Declaration issued by the Heads of State and Government.Footnote 48 The Declaration reaffirmed, inter alia, the commitment to article 5 of the Washington Treaty. It should be noted in this context that the practice developed in the past of Poland being represented at NATO summit meetings by the President. The President is always accompanied by the Minister of National Defence, which reflects the requirements for cooperation provided for in the Constitution (article 133(3)).
Poland’s foreign policy is largely aimed at strengthening state security considering the sense of threat from Russia. The United States is considered to be the main guarantor of state security within NATO as well as beyond the framework of this Alliance. In the area of political and military cooperation with the United States, successive Polish Presidents have been very active. The result of many years’ efforts is the presence of 4,500 American soldiers on the Polish territory. The President’s activity was also maintained in 2019. It was manifested by two joint declarations of the Presidents of both countries. These were the Joint Declaration on Defense Cooperation Regarding US Force Posture in Poland (June 2019) and the Joint Declaration on Advancing Defense Cooperation (September 2019).
In the first of these declarations of June 12, 2019,Footnote 49 the United States announced an increase in its military presence in Poland in the near future by about 1,000 additional soldiers. This will was sustained in the second declaration. Poland, on the other hand, promised to provide and maintain the jointly agreed infrastructure for an initial package of additional projects at no cost to the United States. Poland is also planning to provide additional support to the US Armed Forces, going beyond the NATO standard of support by the host country. The declaration then listed the intended specific undertakings for increasing defense cooperation in Poland. The second declaration of September 23, 2019 is an extension and detail of the first one.Footnote 50 It lists the locations of particular US military units in Poland.
These declarations are important political documents for Poland, but do not have direct legal effects. This is evidenced by the emphasis in both declarations on the common will to strive for the conclusion of international agreements and arrangements necessary for the implementation of increased cooperation in the field of infrastructure and defense, including improvement of the functioning of the US armed forces in Poland. It follows therefrom that the declarations under discussion have a preparatory value in relation to future international agreements.
The above review shows that the President’s role in the field of foreign relations is not limited to his formal competence to undertake actions with legal effects. The political implications are no less important. It should be added that the current President of Poland is considered by many observers as a politician who is not independent, but subject to the influence of the ruling Law and Justice (PiS) party and its powerful Chairman Jarosław Kaczyński.
IV Activities of the Parliament in the Field of Foreign Relations
The dominance of the executive in the field of foreign relations is undeniable. However, this does not mean exclusivity in this area. Relevant is also the activity of the ParliamentFootnote 51 which in Poland consists of two chambers: the Sejm and the Senate. The role of the Parliament in the field of foreign relations deserves attention because of its democratic legitimacy stemming from direct elections.
1 Declaration of a State of War and Conclusion of Peace and Ratification of Treaties
The Sejm – the Parliament’s first chamber – has, in the light of the Constitution, a two-fold competence to take decisions in the field of foreign relations. First, under article 116(1), ‘the Sejm shall declare, in the name of the Republic of Poland, a state of war and the conclusion of peace’.Footnote 52 The Constitution details it in article 116(2):
The Sejm may adopt a resolution on a state of war only in the event of armed aggression against the territory of the Republic of Poland or when an obligation of common defence against aggression arises by virtue of international agreements. If the Sejm cannot assemble for a sitting, the President of the Republic may declare a state of war.
Second, the Parliament gives its consent in the form of a statute to the ratification of major international agreements.Footnote 53 In accordance with article 89(1)
ratification of an international agreement by the Republic of Poland as well as renunciation thereof, shall require prior consent granted by statute – if such agreement concerns:
1) peace, alliances, political or military treaties;
2) freedoms, rights or obligations of citizens, as specified in the Constitution;
3) the Republic of Poland’s membership in an international organization;
4) considerable financial responsibilities imposed on the State;
5) matters regulated by statute or those in respect of which the Constitution requires the form of a statute.
In addition, specific, more demanding rules for ratification with the participation of both chambers of the Parliament refer to the international agreement based on article 90(1) of the Constitution. Pursuant to this provision, ‘[t]he Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of State authorities in relation to certain matters’. This provision concerned the Accession Treaty of Poland joining the EU.
A statute, granting consent to the ratification of such an agreement shall be passed by the Sejm by a two-thirds majority vote in the presence of at least half of the statutory number of its Members, and by the Senate by a two-thirds majority vote in the presence of at least half of the statutory number of Senators. The consent to the ratification may also be granted in a nationwide referendum (article 90(2) and (3)).
2 Control over the Activities of the Council of Ministers in the Field of Foreign Relations and the Parliamentary Foreign Affairs Committee
From the parliamentary perspective, noteworthy is the competence to exercise control over the Government. In accordance with article 95(2) of the Constitution, the Sejm shall exercise control over the activities of the Council of Ministers within the scope specified by the provisions of the Constitution and statutes. Clearly, the scope of parliamentary control is broader than the field of foreign relations. The activities of the Parliamentary Foreign Affairs Committee are of great practical importance. The Committee discusses current issues of the Government’s foreign policy. In addition, the Committee initiates legislative work, expresses its opinion on the correctness of procedures for the ratification of international agreements and provides its opinions on candidates for positions related to the state’s foreign policy.Footnote 54 Periodically, the Sejm holds debates on the foreign policy which is presented by the Minister of Foreign Affairs. This provides an opportunity for the parliamentary opposition to take a stand. It should be stressed, however, that the President’s activity in the field of foreign relations remains beyond the Parliament’s control.Footnote 55
It can be concluded that, apart from the Parliament’s competence in the process of ratification of international agreements, the Parliament’s role in the field of foreign relations lies in providing opinions and inspiring the activities of the Council of Ministers. Control over the Government is general in its nature. The Parliament’s real influence on the executive in this area depends largely on the qualifications and determination of Members of the Sejm dealing with international affairs in a given term of office.
3 Parliamentary Activity in EU Affairs
Poland’s membership in the European Union has opened new fields of parliamentary activity. As already mentioned, EU affairs do not fall within the division of state activities into internal and external affairs and contain elements of both. The role of the Parliament in the European affairs is defined by EU and Polish law. The Lisbon Treaty has significantly strengthened the position of national parliaments. The various forms of participation of national parliaments in the Union’s political life and the related competences are formulated in the extensive article 12 TEU which should be mentioned in the first place.Footnote 56 In this context, reference should also be made to two protocols which have the legal power of treaties. They regulate the procedures for EU institutions to observe the principle of subsidiarity and assessment, in this respect, of draft EU legislation by the parliaments of the Member States.Footnote 57 The Polish Parliament is also involved in these procedures.
As far as Polish law is concerned, reference should be made to the Act of 2010 on the Cooperation of the Council of Ministers with the Sejm and Senate on Matters Related to the Membership of the Republic of Poland in the European Union.Footnote 58 Pursuant to the provisions of this Act, the Council of Ministers is obliged to cooperate with both chambers of the Parliament in a number of areas: making European Union law, bringing actions before the Court of Justice of the European Union by the Sejm and the Senate, creating Polish legislation implementing European Union law, giving opinions on candidates for certain posts in the European Union as well as in connection with representatives of the Council of Ministers holding the presidency of the Council. The cooperation according to the statute in question consists mainly in the provision by the Government of information, to a broad extent, to parliamentary committees competent for European affairs, consultations and opinions on the Government’s intended activities. The statute in question introduces procedures to ensure efficient cooperation.
V Conclusion
The above considerations have illustrated the existence of various factors determining the performance of tasks and competences in the field of foreign relations in a country which just over thirty years ago gained the possibility to act independently on the international and European arena. The arrangement of political forces reflected in the parliamentary composition during the drafting and adoption of the Constitution determined the choice of the structure of the state system, including the dualism of the executive power and, within it, the relationship between the Council of Ministers (the Government) and the President. In addition to the constitutional solutions, of great relevance are the changing external conditions as well as the personality traits of politicians performing the functions of president, prime minister, ministers or members of parliament. Thanks to these characteristics, even in the unchanged constitutional state, there may be differences in the real significance of particular authorities in such an important and sensitive area as foreign relations.
Worth noting at this point are the processes of transformation of the Polish state system towards authoritarianism noticeable after 2015.Footnote 59 These processes are taking place without any amendment to the Constitution, although with an interpretation of its provisions departing from what was commonly approved previously. Essentially, undemocratic changes are being made through new statutes and changes in the application of the old ones. Most observers assert that certain of these statutes are unconstitutional. This unconstitutionality, however, cannot be effectively examined considering the loss by the Constitutional Tribunal of its prestige and public trust. The independence of courts, including the Supreme Court, has been significantly weakened.
The aforementioned political transformations have an effect on Poland’s foreign relations. They result in impairing the state’s reputation in the international arena due to the undermining of the principles of democracy and the rule of law. The European Union responded to these developments.Footnote 60 Proceedings under article 7 TEU have been pending before the Council of the European Union since 2018.Footnote 61 These were initiated by the European Commission which believes that there is a clear risk of a serious breach by this Member State of the values referred to in article 2 TEU, and in particular the rule of law. The ECJ has issued several judgments ruling on the violation by Poland of the rule of law with regard to the judiciary.Footnote 62 Poland’s position in the European Union has weakened. Even if there is no formal Polexit, its increasing marginalization is to be expected.
The developments in Poland are also condemned by numerous international organizations. Poland is getting more and more isolated on the international arena.
The changes in the practice of Poland’s foreign relations in recent years are invisible in an analysis limited to constitutional considerations only. In the exercise of their constitutional tasks and competences, including in the field of foreign policy, both the President and the Government headed by the Prime Minister as well as the parliamentary majority, are subject to the will of the Chair of the ruling party (PiS).
I Introduction
The growing importance of foreign relations law raises the question of whether the traditional exclusion of parliaments from a country’s foreign affairs is wrong and utterly flawed. While there are practical benefits in seeing foreign relations as belonging only to the executive branch, this approach undermines the potential for national parliaments to engage in developing this area of law.Footnote 1 Hence, in this chapter I examine the role of parliaments in foreign relations law taking Bosnia and Herzegovina (BiH) as an example.
BiH is particularly interesting in this regard for several reasons. Firstly, BiH has a unique constitutional framework and special relationship with international law due to the Dayton Peace Agreement (DPA).Footnote 2 Even though this uniqueness is in a certain tension with the approach to discuss the general question of the role of parliaments in foreign relations law, the example of BiH is interesting because it can show that the impact of parliaments on foreign relations law depends on parliaments’ role in a state and effective use of their competencies. Secondly, BiH has an extremely complex and multilevel system of state organisation as a result of the same treaty. Finally, the complex internal structure combined with weak institutions and the absence of a dedicated law on foreign relationsFootnote 3 leads to a large number of actors (international and domestic) that can and has a major role in creating and implementing foreign policy.
In this chapter, I will first provide some general information on the constitutional design in BiH, on the institutions established by the Constitution, and the general separation of powers as arranged by the Constitution. I will further examine the foreign relations law of BiH and the respective competencies of the Parliamentary Assembly of BiH (PA) in the implementation of the foreign policy. I argue that foreign affairs should be analysed as a matter of the distribution of powers between the executive and legislative branch, and not the exclusion of the foreign affairs power from the legislature.Footnote 4 Finally, the chapter will turn to foreign relations law as a field of scholarship and research in this country. The chapter ends with conclusions and recommendations. This part of the chapter addresses some of the practical issues related to the smaller and larger role of the legislature in shaping foreign policy. It also addresses the future perspective of the role of parliaments in the issue under examination.
II A General Constitutional and Legal Framework in BiH
BiH is rather unique when it comes to (subsection A) its internal organisation and (subsection B) its relation to international law. This special position of BiH is owed to a violent international armed conflict that lasted on Bosnian territory from 1992 to 1995 and ended with the signing of the DPA with the Annex 4 serving as the Constitution for BiH.
A Internal Organisation of Bosnia and Herzegovina
One of the main questions raised during the negotiations of the DPA was a question of how to organise the internal structure of BiH. In an effort to end the war, the DPA was negotiated and signed by all three parties to the conflict, that is BiH, Croatia, and Serbia (along with the representatives from the European Union (EU), France, Germany, Italy, Russia, the United Kingdom and the United States). With so many parties to the agreement, the provisions therein represented a compromise of the parties’ respective interests. Consequently, the DPA achieved its main purpose of ending the war, but it left in place the ethnic division established by war. More specifically, the solutions provided by the DPA succeeded in preserving BiH as a sovereign state; however, it divided BiH into two parts: the Federation of BiH (decentralised and predominantly with Bosniac and Croat population) and Republika Srpska (relatively centralised and predominantly with Serb population). Furthermore, the Federation of BiH was divided into ten cantons with great powers and competencies. However, the complexity of the state organisation does not end there. In addition to these two Entities (and cantons in Federation of BiH), the town of Brčko became an independent district in 1999, being the only part of BiH not governed by the DPA.
As regards the institutions established by the Constitution and the issues of separation of powers as arranged by the Constitution, they are weak and reflect the ethnic divisions in BiH.Footnote 5 This is an expression of a balance of power and a drafting compromise between the warring DPA parties.Footnote 6 Against this background, all governmental functions and powers not expressly assigned to the institutions of BiH are within the jurisdiction of the Entities.Footnote 7 As a consequence, many important areas such as education or the police apparatus have been constitutionally placed under the jurisdiction of the Entities, which is not the case for the field of foreign policy, however.Footnote 8
The weak position of national institutions is further complicated by their ethnically defined structure.Footnote 9 In addition, each of the constituent peoplesFootnote 10 has a veto power over all essential decision-making, that is, is entitled to invoke the ‘vital interest’ that enables them to block every proposal they deem harmful to their respective peoples.Footnote 11 This may, and very often does, paralyse the national institutions. It is worrying also for foreign policy which is a responsibility of the tripartite Presidency.Footnote 12 Even though the Constitution of BiH declares that the Presidency shall endeavour to adopt all Presidency decisions by consensus, and the conducting of foreign policy is particularly emphasised in this regard,Footnote 13 this procedure may lead to stalemate of the Presidency and foreign policy. Namely, if no consensus is reached, two members of the Presidency may adopt a decision. However, the dissenting member may then declare a proposed decision to be destructive of a ‘vital interest’ of the Entity from the territory from which he/she was elected.Footnote 14 In that case, a separate proceeding for the resolution of a dispute will be initiated.Footnote 15 Accordingly, each of the constituent peoples may have a final say in the Presidency and foreign policy, which goes in line with my claim regarding a large number of actors that can have a major role in foreign policy in BiH.
Finally, in addition to these state-level institutions, both Entities, the Federation of BiH and Republika Srpska, have their own separation of powers-structures.Footnote 16 Furthermore, the Brčko District has its own division of powers.Footnote 17 Also, both Entities have their own Constitutions, while the Brčko District has the Statute of the Brčko District of BiH.Footnote 18
B BiH and International Law
The Constitution of BiH and the DPA have led to a special situation of BiH vis-à-vis international law. The fact that the Constitution is a part of an international treaty enables it to be interpreted as a treaty defined by the 1969 Vienna Convention on the Law of Treaties.Footnote 19 Furthermore, its content makes BiH uniquely open to international law. This is the result of the DPA makers trying to develop and to guarantee pluralism and non-discrimination of both the majority and minority in BiH with respect to the application and protection of the whole range of different legal instruments and human rights and freedoms. This is best demonstrated by:
‐ The direct applicability of the fundamental freedoms of the European Convention of Human Rights (ECHR) and its Protocols;Footnote 20
‐ The provision on the absolute supremacy of ECHR and its Protocols over all other law;Footnote 21
‐ The provision on an additional fifteen international conventions on human rights and protection of national minorities to be applied in BiH;Footnote 22
‐ The provision stating that the general principles of international law shall be an integral part of the law of BiH and the Entities;Footnote 23
‐ The provision that highlights that no amendment to the Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II, or alter this provision.Footnote 24
Furthermore, the DPA has established the Office of the High Representative (OHR)Footnote 25 as an ad hoc international institution responsible for overseeing implementation of civilian aspects of the DPA.Footnote 26 The OHR has the status of a diplomatic mission to BiH and its main task is to ensure that BiH evolves into a peaceful and viable democracy, as well as to serve as the final authority for interpretation of the DPA on the civilian implementation of the peace settlement.Footnote 27 The High Representative has the power to impose decisions in cases where BiH authorities are unable to agree or where important issues are being considered or require resolution. Consequently, in the past, the High Representative has removed elected officials from office, imposed numerous laws and bylaws, and banned individuals from running for office, among other measures.Footnote 28
Its work has been challenged in front of different courts. The main takeaway from these efforts has been that the foundation for the OHR’s legislative acts lies in international lawFootnote 29 and, therefore, it cannot be challenged by courts (whether it is the Supreme Court of the Federation of BiH or Republika Srpska, the State Court of BiH, the Constitutional Court of BiH or even the ECtHR).Footnote 30 However, it is worth noting that after its adoption, relevant legislation becomes part of domestic law and is consequently reviewable by the Constitutional Court.Footnote 31 More specifically, although the OHR is acting on the basis of international law, legislation that it adopts replaces acts of the PA and becomes part of domestic law (and, in accordance with the Constitution, all acts, regardless of who adopts them, are reviewable by the Constitutional Court). Therefore, the Constitutional Court can review the constitutionality of the content of legislation enacted by the OHR, but not whether there was enough justification for the OHR to enact the legislation in the first place.
It is thus not surprising that the work of the OHR has been, and still is, highly criticised.Footnote 32 The main criticism is that the OHR has de facto, unlimited legal powers that are contrary to the essential democratic principles it promotes. On the other hand, there are also legitimate arguments that, due to the ethnic composition of BiH institutions and institutions on the substate level, the intervention of the OHR is welcome and often necessary.
In my view, even though the objections to the OHR are justified, its work (as well as the work of other international actors in BiH) is indeed still necessary. However, three points of concern stand out: first, its role should be more transparent and better explained to the citizens. Second, it should use its powers more effectively in critical situations for which it is made (which has been not the case since the former and most active High Representative Paddy Ashdown has left office). Finally, it should work towards enabling domestic actors to work fully independently.
Not only BiH, but also the Brčko District has a ‘special supervisor’. However, in 2012 the High Representative announced that the Brčko Supervisor would suspend his functions while retaining all his authority, as he believed that the District’s institutions now have the capacity to address their challenges on their own. Thus, while the Special Representative position continued to exist, the full responsibility for the District’s affairs were devolved to local administration.
Finally, the Constitution has articles that deal with the Entities’ relations with international law. Namely, the relations between them and foreign states are regulated in Article III(2)(a) and (d) of the Constitution. Pursuant to these provisions, Entities may establish ‘special parallel relationships’ with neighbouring states if these relationships are consistent with the sovereignty and territorial integrity of BiH. Each Entity may also enter into agreements with states and international organisations with the consent of the PA. However, the PA may provide by law that certain types of agreements do not require such consent.Footnote 33
C Shortcomings of the Current System
Although very open to international law and explicitly securing the enjoyment of the rights and freedoms to all persons in BiH without discrimination on any grounds, the BiH Constitution should and has been subject to a large amount of criticism. The main reason is its discriminatory nature, since it discriminates the very persons it should protect. The citizens not belonging to the mentioned ‘constituent peoples’ are being discriminated against, since they are ineligible to stand for election for certain prominent positions in BiH. However, it is not just them: Bosniacs, Croats, and Serbs are also discriminated against based on the territory in which they live (e.g. a Serb member of the Presidency may only be directly elected from the territory of Republika Srpska, thus discriminating all Serbs in the Federation by disabling them to choose ‘their’ representative in the Presidency).
This has led to several lawsuits against BiH before the ECtHR.Footnote 34 The most famous and widely discussed case among them is the Case of Sejdić and Finci.Footnote 35 However, even after more than ten years since the delivery of this judgment, the necessary reforms in BiH have not been adopted.Footnote 36 This has led to the characterisation of the situation in BiH by the Committee of Ministers of the Council of Europe as a manifest breach of the country’s obligations under the ECHR, as well as of its undertakings as a member state of the Council of Europe.Footnote 37 Thus, even though the BiH Constitution is continuously described as uniquely open to international law, the truth is that not all of its provisions are in line with international law. The scars of the war in the 1990s remain deeply enshrined in how BiH functions in general and the DPA continues to be the basis for the present political divisions of BiH.
The ‘world’s most complicated system of government’Footnote 38 has consequences for the foreign policy as well. The prominent role of the constituent peoples in the national institutional system combined with the substantial involvement of the international community leads to foreign policy being governed by a number of different and sometimes opposing actors. The domestic ethnically divided institutions (controlled by the same political parties for thirty years) disable genuine political change, making it impossible to reach decisions against the will of the ruling elites. On the other hand, the power of the international community represented through the OHR not only makes BiH foreign relations law dependent on international law but it also allows the previously mentioned domestic political actors to evade the political responsibility for their (in)actions. This reality does not lead to strengthened capacities of BiH institutions in exercising foreign affairs, nor does it lead to creation and implementation of common external goals. It only undermines institutional actions in the domain of foreign affairs and leads to political stalemate and institutional ineffectiveness.
Interestingly, the dependency of BiH foreign relations law on international law seems to be somewhat similar to the states in the ‘Global South’, as explained by Michael Riegner in his chapter. Notwithstanding the fact that BiH does not belong to the Global South, its foreign relations law, just like foreign relations law of the states in the ‘Global South’, does not shape the outside world as much as the outside world shapes their internal sphere. And although BiH’s constitutional structure adds a new layer of complexity to the study of foreign relations law, there is a similarity in terms of the openness to and acceptance of international law, which is expressed in their respective constitutions. By allowing a special status of international law within their domestic legal systems, these states try to derive the formal validity of their constitutions from international law, to modernise their image and to build up their reputation within the international community. Hence, the transnational and hybrid categories of their foreign relations law transcend the binary opposition between national and international, political and economic, while the normative functions of their foreign relations law include enhancing economic self-determination, socio-economic development and equality.Footnote 39 All these states also share a similar goal: to take a more prominent role in the international community, which makes their foreign policy issues more relevant over time.
III Bosnia and Herzegovina’s Foreign Relations Law
The foreign policy of BiH is implemented through the Presidency of BiH,Footnote 40 the Ministry of Foreign Affairs of BiH,Footnote 41 and the resident and non-resident diplomatic and consular missions of BiH.Footnote 42 There is no dedicated law on foreign relations in BiH yet.Footnote 43 Moreover, until March 2018, the only document specifically regulating foreign relations law in BiH were the three-pages-long General Guidelines on and Priorities of Conducting the Foreign Policy of BiH.Footnote 44 However, there are many other laws (including the Constitution) that deal implicitly with foreign relations.Footnote 45
‘The General Guidelines on and Priorities of Conducting the Foreign Policy of Bosnia and Herzegovina’ established the following as the priorities of BiH’s foreign policy:
‐ Preservation and protection of the independence, sovereignty, and territorial integrity of BiH within its internationally recognised borders;
‐ Full and consistent implementation of the DPA;
‐ BiH inclusion into European integration processes;
‐ Participation of BiH in multilateral activities; and
‐ Promotion of BiH as a partner in international economic relations.Footnote 46
However, in March 2018, the Presidency of BiH decided to revise these guidelines and it adopted ‘The Foreign Policy Strategy of Bosnia and Herzegovina 2018–2023’ (hereinafter Strategy) establishing a wider framework on the activities of the relevant institutions of BiH in the realm of foreign relations law.Footnote 47 The Strategy was adopted in accordance with the constitutional competencies of the Presidency,Footnote 48 and the institutions of BiH are obliged to implement it.
Given that the global situation has changed since 2003 (the growing problem of terrorism and radicalism, the refugee crisis, challenges that the EU faces, etc.), the Strategy proposes several novel approaches to address these global challenges. However, it does not bring anything that has not been previously confirmed as foreign policy goal by the competent legislative and executive bodies of BiH.
Hence, this document states as its goal the establishment of a wider framework and guidelines on the activities of the relevant institutions of BiH in the realm of foreign policy.Footnote 49 It also emphasises the necessity for the Ministry of Foreign Affairs of BiH to prepare every two years a draft action plan with detailed objectives and priorities on the implementations of the Strategy.Footnote 50 In addition, it reiterates the obligation of the same Ministry in monitoring the implementation of the Strategy, as well as the Ministry’s duty to annually inform the Presidency of BiH on the efficiency of its implementation and suggests measures on redefining of the Strategy.Footnote 51
As regards the principles of the foreign policy of BiH, the Strategy emphasises openness, equality, reciprocity, peaceful cooperation, and non-interference in internal affairs of other countries, as well as the protection and promotion of the BiH’s own basic constitutional principles, such as constitutionality, sovereignty, territorial integrity and the rule of law.Footnote 52 Also, the respect for and protection of human rights and fundamental freedoms and the fight against all forms of violent extremism are stated as priority principles.Footnote 53 In addition and due to the uniquely complex political structure of BiH, the Strategy underlines the importance of the principle of consensus in every public appearance of foreign policy actors in the country.Footnote 54 Finally, efficiency, transparency, responsibility for the results achieved, together with the universally endorsed principles of international law and the general principles of diplomatic practice are among the principles of the implementation of BiH’s foreign policy.Footnote 55
The central part of the Strategy refers to the pillars of BiH’s foreign policy. Those pillars are the strategic directions and dynamic guidelines of the foreign policy of BiH within which the objectives of the Strategy shall be pursued. These pillars are, first ‘security and stability’, second ‘economic prosperity’, third the ‘protection of the interest of BiH’s nationals abroad and international legal cooperation’ and fourth and finally the ‘promotion of BiH in the world’.Footnote 56
These pillars are intertwined and depend on one another. Thus, economic prosperity cannot be achieved without the security and stability of BiH, while the promotion of BiH in the world is not possible without the protection of BiH’s interests and cooperation of BiH in international institutions.Footnote 57
In addition, the importance of BiH’s integration in EU and NATO, as well as dedication to values of the UN are highlighted.Footnote 58 Indeed, it can be said that from 1997 onwards,Footnote 59 all foreign relations policies of this country have been focused on BiH’s membership in the EU, and anything done by the relevant actors in BiH is expected to be done with the EU integration as a primary goal in mind.Footnote 60
There are both legal and political considerations associated with the compliance of Bosnian institutions and political actors with EU foreign policy declarations. Each country aspiring to become an EU member has committed itself to gradually align its policies and practices with the EU’s foreign policy activities, which is demonstrated through the adoption of foreign policy declarations and the eventual implementation of the measures that may result from them. Therefore, the majority of agreements signed jointly between BiH and EU, as well as BiH acts passed after its decision on the accession to the EU, highlight the duty of an increasing convergence of positions of BiH with the EU.Footnote 61 In addition, this is important as it shows that BiH is trustworthy and can act in accordance with the obligations arising from concluded and accepted agreements as well as from any other obligation stemming from the European integration process.
However, the practice of the BiH institutions shows something different. Political actors in BiH work on the above-mentioned priorities and principles in only a declaratory fashion (and sometimes not even that). This has been emphasised by the European Commission, too.Footnote 62 For example, the Strategy highlights the membership in NATO as one of the BiH’s priorities. However, the current chairman of the Presidency of BiH Milorad Dodik almost daily declares that BiH membership in NATO is unacceptable.Footnote 63
The second problem is that the three-member Presidency of BiH (as well as other BiH’s institutions) do not share the same views on a number of domestic and international issues. This is a major obstacle for every decision that must be made in BiH. For example, BiH has not yet recognised Kosovo as an independent state due to the lack of unanimity within the Presidency of BiH. Namely, Serb members of the Presidency throughout the years have always opposed this recognition as their policies are usually in line with Serbia.Footnote 64 The Ministry of Foreign Affairs is united with them on this issue as well.Footnote 65 Their stance is determined by the stance of Republika Srpska, which is strongly opposed to the recognition of Kosovo.Footnote 66 BiH is therefore currently the only country in the region other than Serbia that has not recognised Kosovo. This complicates not only the movement of people (‘it is easier to get to London than to Priština’) but also economic cooperation (e.g., in response, Kosovo at one point introduced 100 per cent Tariff on the import of goods from BiH).
The situation in BiH foreign affairs is nevertheless not all bad. From its independence onwards, BiH has presided over the UN Security Council and the Council of Europe, has been preparing applications for admission to memberships in NATO and EU, has contributed to international crisis management, peacekeeping and peace building missions worldwide, and has been solving its disputes with other states before international courts.Footnote 67 BiH has demonstrated that, even though it has been grappling with its own uniquely complex system of government, it has somehow succeeded in implementing some of its foreign policy goals. However, it is without question that BiH lacks an effective institutional apparatus and a clear strategy on foreign relations.Footnote 68
IV The Role of the Parliamentary Assembly of Bosnia and Herzegovina in Bosnian Foreign Relations Law
The role of the PA in the foreign policy of BiH is not much emphasised in the Constitution or any of the BiH laws. Pursuant to the Constitution, foreign policy is a responsibility of the institutions of BiH,Footnote 69 more specifically of the Presidency. Thus, the Presidency is responsible for conducting the foreign policy of BiH, for appointing ambassadors and other international representatives of BiH, for representing this country in international and European organisations and institutions and for seeking membership in such organisations and institutions of which BiH is not a member.Footnote 70 Furthermore, the Presidency is also responsible for negotiating, denouncing and ratifying treaties of BiH.Footnote 71 Finally, its competencies include coordination of the country with international and nongovernmental organisations in BiH.Footnote 72
The Law on Ministries and Other Bodies of Administration of BiH details these issues further. It regulates that the Ministry of Foreign Affairs is responsible for the implementation of the foreign policy of BiH and development of BiH’s international relations.Footnote 73 However, it sets out that this should be done in accordance with the positions and directions of the Presidency of BiH. What is more, the same Ministry is responsible for proposing the adoption of positions concerning the issues of interest for foreign policy activities and the international position of BiH, as well as for representing BiH in foreign relations, and carrying out the professional tasks in relation thereto.Footnote 74 Pursuant to the regulations set out in the same Law, the Ministry of Foreign Affairs is responsible for proposing to the Presidency of BiH the establishment and termination of diplomatic or consular relations with other states, the cooperation with international organisations, as well as the preparation and organisation of international meetings and agreements.Footnote 75 Moreover, its competencies also include preparing documents, analyses, information, and other materials serving the needs of the bodies competent for the foreign policy implementation.Footnote 76
Nevertheless, for the reasons listed below, the role of the PA in the foreign policy of BiH is not insignificant.
Firstly, it has been highlighted that the Presidency is responsible for negotiating, denouncing, and ratifying treaties of BiH. However, it cannot do so without the consent of the PA.Footnote 77 This is confirmed by the Law on the Procedure of Concluding and the Execution of International Treaties.Footnote 78 Hence, even though the Law stipulates that international treaties on behalf of BiH are concluded by the Presidency of BiH,Footnote 79 the Presidency must, for the purpose of obtaining the prior approval for ratification, submit the concluded international treaty to the PA. The Presidency should also submit a detailed explanation of the need and conditions for concluding a considered treaty.Footnote 80 Thus, the PA decides to give (or not) prior consent for the ratification of an international treaty, while the Presidency, upon obtaining that consent, decides on the ratification of an international treaty. Additionally, the Council of Ministers is responsible for implementing international treaties, and shall notify the Presidency and the PA about said implementation at least once a year.Footnote 81
Secondly, even though the Presidency shall decide on the cancellation or withdrawal from an international treaty (either on its own initiative or at the proposal of the Council of Ministers), it cannot do so without the prior approval of the PA.Footnote 82
Thirdly, it has been emphasised that the Ministry of Foreign Affairs is responsible for proposing the adoption of positions concerning the issues of interest for foreign policy activities and the international position of BiH, as well as for representing BiH in its foreign relations, and carrying out the professional tasks in relation thereto. However, it should report on these activities to, among others, the PA.Footnote 83
The controlling role of the House of Representatives of the PA is also reflected in its authority to confirm the appointment of the Council of Ministers of BiH, to oversee and control its work, and to vote no confidence when deemed necessary.Footnote 84
Furthermore, the House of Representatives has several Permanent Committees, including, among others, the Committee on Foreign Affairs.Footnote 85 Its jurisdiction is to monitor the conduct of foreign policy and to consider all issues in the field of international relations and foreign affairs.Footnote 86 This includes a role in adopting legislation in the field of foreign affairs.Footnote 87 This also includes engaging with the cooperation of BiH with international organisations and the international community, as well as inter-parliamentary cooperation with the respective parliamentary committees of other countries. In addition, the Committee considers granting and revoking consent to the ratification of international treaties, agreements and conventions.Footnote 88 The role of the Committee can also be important when it comes to the cancellation or withdrawal from an international treaty.Footnote 89 Therefore, perhaps the biggest influence of the PA on BiH’s foreign policy may be made through the work of this Committee. Nevertheless, this influence will depend on its very members. In fact, some of its Chairs have done everything in their power to minimise the role of the Committee.Footnote 90 As a result, the internal division and complexity of BiH have its impact on the work of this Committee as well.Footnote 91 It seems as this Committee in BiH exists only formally. For example, the 2017 annual report of the Committee states that the Committee has held twelve sessions and adopted four conclusions. The average attendance of its members to its sessions was 70 per cent, and the sessions lasted on average 39.5 minutes. Therefore, the members of the Committee spent only eight hours in a whole year working on their tasks. Moreover, in the same year, this Committee had a meeting only with the Committee on Foreign Affairs of the Parliament of Italy. If compared to the previous reports, it seems also that the work of the Committee is decreasing and becoming less influential.Footnote 92 Even though the Committee’s dependence on the work of other state organs is one of the reasons of its lack of efficiency, one of the main reasons is certainly the reluctance of its members to use the competencies given to them in the realm of foreign relations. Therefore, the Committee on Foreign Affairs has never effectively scrutinised the actions of the executive and its work is without practical effect in shaping the BiH’s foreign affairs.Footnote 93
In conclusion, it is obvious that the PA has instruments to influence the foreign policy of BiH. Certainly, a function that is primarily linked to the PA is the legislative function.Footnote 94 However, in executing such a role the PA has ways to influence the foreign relations, too. Thus, the role of PA in this area is indirect but can be significant. I believe that this is primarily due to two explanations: first, the legislature may slow down the executive in the conduct of foreign policy (and thus should not have any bigger role in this area). Second, it is important to have a certain level of control of the executive in carrying out the functions entrusted to it (ensuring therefore that the PA has a system of checks and balances). Namely, the PA’s size and probable non-expertise in foreign relations law are not practicable for foreign policies to be made by parliament directly. Members of the PA are not used to making and dealing with foreign policies. However, they are representatives of the people. On the contrary, the government and the ministries are used to working on foreign aspects and to doing so quickly. Since ‘good scrutiny makes for good government’,Footnote 95 the PA should and does have the means at its disposal to monitor the executive, to scrutinise its practice, and to keep it in appropriate bounds, ensuring both openness and efficiency. Its members should not be indifferent to issues of foreign relations. This does not mean they challenge executives but that they strengthen them.Footnote 96
However, the PA is currently mostly interested in domestic politics and the ethnic divisions, which brings foreign relations barely in its focus. Its members were largely elected because of their nationalist sentiment and membership in a particular political party, allowing the ruling elites to capture the PA. Also, the peculiar relationship between the international community and the PA (as well as other national institutions) has consequences for BiH foreign relations law too. The power of the OHR to act in substitution for the domestic institutions makes it a very relevant actor in BiH foreign affairs. Moreover, while acting as domestic institution, the OHR places himself above the domestic legal system, making BiH a unique example in this regard. Even though the OHR acts only if the PA had failed to act, and although his actions are less frequent than before, the mere fact that he possesses these powers contributes to the erosion of the boundaries between the domestic and international domain. Consequently, BiH foreign relations law is developing in the various and quite special connection between international and domestic law.
V Foreign Relations Law As a Field of Scholarship in Bosnia and Herzegovina
When it comes to the foreign relations law as a field of scholarship and research in BiH, it has been seen mostly as a part of the political and not legal scholarship. There have been virtually no scholars with exclusive and foremost expertise in this area. Most of the scholars have seen it as a part of some other, ‘bigger’ discipline, such as international relations or political science.
As far as law professors are concerned, international law professors and national law professors are partly isolated from each other, and they mostly teach one discipline or the other, although it is not uncommon that the same professor teaches courses in both public international law and public law fields. In addition, curricula for the courses are generally separated from one another and provide little connection between the disciplines.Footnote 97 Therefore, most courses either do not touch upon foreign relations law at all, or only sporadically mention it (for example, Public International Law curricula and/or Constitutional Law curricula). Thus, foreign relations law is taught scarcely and mostly within Public international law or/and Constitutional Law courses.
The state of affairs in BiH is comparable to other jurisdictions like China. As Congyan Cai explains with respect to Chinese foreign relations law,Footnote 98 few international lawyers at Chinese universities know constitutional law well and, vice versa, few constitutional law professors have much knowledge of international law.Footnote 99 Another similarity concerns the manner in which China and BiH conduct foreign relations; namely, the fact that political expediency is routinely invoked to justify the obscurity and low transparency in activities in foreign relations.Footnote 100 Finally, as in China, in BiH, there are two recent developments in foreign relation law that merit attention. The first concerns a recent important legislative initiative concerning foreign relations (explained earlier in this chapter). The second is related to the fact that recently this area began to grow in academic importance. Specifically, there has been an increase in the number of books and papers on the subject.Footnote 101 Also, there are growing numbers of faculties and special study programs with a particular focus on foreign relations.Footnote 102 Accordingly, it can be said that with the rise of BiH foreign relations, the interest for this topic is expanding as well. Yet, this still remains a largely unexplored research area in the legal discipline.
VI Conclusion
My main conclusion is that the impact of parliaments on foreign relations law depends on their role in a state and effective use of their competencies. Their means to impact the conduct of foreign relations become more diverse with the strengthening of their role in a state. Looking at the example of BiH, it seems that this impact can be seen mostly in the ratification of international treaties, in the use of committees on foreign affairs, and in the annual checks and reports. Nevertheless, the development of foreign relations law demands constant adaptation of methods of its implementation. I believe this competency should be used to a full extent as the increase in this practice can improve the quality and transparency of foreign affairs. However, both internal and external factors affect this effectiveness. Individual members of parliament (and its committee on foreign affairs) can also make a major contribution to this effectiveness. As a result, their personal views are vitally important.
This is especially true for BiH because its complicated internal system adds another layer of complexity to BiH foreign relations. Here, not only the political parties but also state institutions (as well as institutions on the substate level) are mainly organised along ethnic lines. With the general lack of trust between different ethnic groups, it is almost impossible to reach consensus on many questions. This makes BiH ineffective on a daily basis, including on foreign relations law. In this regard, a solution must be found to enact a constitution that institutes a legitimate form of government and guarantees the protection of all ethnic groups, while at the same time creating the shared political identity that transcends the dominant ethnic allegiances.Footnote 103
However, Bosnia’s extremely complex and multilevel system of state organisation is not the only feature that makes BiH special when it comes to foreign relations. Its constitutional structure also creates unique relationship between international and domestic sphere and has consequences for foreign relations law too. In particular, the OHR’s powers make BiH dependent on foreign actors’ decision-making process. The OHR can substitute himself for the national authorities, including the PA, and can even overrule the PA’s decisions. This makes the boundaries between ‘international’ and ‘domestic’ more fluid and can greatly affect the foreign relations law as well.
When it comes to foreign relations law in BiH, it is necessary to strengthen co-operation between the PA and the executive branch in the creation and implementation of foreign policy, as well as to strengthen the co-operation of the Committee on Foreign Affairs with parliamentary counterparts from other states. In addition, the importance of foreign relations law and major changes in the world order require an assessment of the effectiveness of the current system in achieving the goals set out in the 2018 Strategy. Currently, each and every conduct constituting relations of BiH with other countries is actually the result of improvisation arising from this general document. It is necessary to regulate this field by a more comprehensive act, which is also something that professional diplomats have been lobbying for since 2001.Footnote 104 It is also important to involve all relevant actors in drafting this act (from the academic community to business actors). This could reduce the possibilities for self-interested conduct of political parties in foreign policy, while leading to the development of foreign policy that is in the interest of BiH and its citizens.Footnote 105 It is therefore necessary to concretise the 2018 Strategy with clear directives for foreign affairs on the basis of the priority interests of BiH. The executive should remain the main figure in foreign relations law, but the scrutiny, guidance, and support of the PA must be enhanced. Otherwise, the potential of the PA will be wasted unnecessarily.
In conclusion, it is true that the traditional doctrine generally excludes parliaments from any role in the conduct of foreign affairs and that there are indeed practical benefits in seeing foreign relations as belonging only to the executive branch. However, the traditional approach seems much less persuasive today as it undermines the potential for national parliaments to engage in developing this field of law. The legislative branch can certainly add another layer of scrutiny and expertise to the foreign relations law. Therefore, the emphasis needs to be on the construction of more ‘bridges’ and the erection and shifting of fewer ‘boundaries’, respectively.
In foreign relations law, the power to wage war is inherently an executive power.Footnote 1 It is the government that declares war or sends the military forces into battle. Yet, increasingly, the prerogative to engage in military action has been open to scrutiny by domestic parliaments. This trend was first noted in 1990, when Lori Damrosch argued that there was a trend ‘towards parliamentary control over the decision to introduce troops into situations of actual or potential hostilities’.Footnote 2 In relation to the Gulf War she noted a ‘striking pattern of parliamentary approvals for decisions to commit military support, including votes in the US Congress, the French Assemblée nationale, and the Parliaments of Italy, Canada, Australia, the Netherlands, Greece, Turkey and Spain’.Footnote 3 Similarly, the NATO bombing against the then Federal Republic of Yugoslavia in 1999 triggered ‘intensive parliamentary deliberations’ in all participating statesFootnote 4 as did the 2003 Iraq invasion.Footnote 5 In relation to both conflicts, the legality of intervention was highly disputed. Since then, the involvement of parliaments around the world has become a fait accompli. The Netherlands Constitution, for example, was revised to require the Government to inform Parliament prior to deployment of forces abroad,Footnote 6 the French Constitution also similarly strengthened the position of Parliament,Footnote 7 whilst other countries changed legislation to define the precise role of the legislature in the context of deployment of armed forces abroad.Footnote 8 In all of these cases, the role of Parliament has been strengthened so that it could provide support or approval for military action and for troops on the ground.Footnote 9 The votes in national parliaments provide legitimacy to the decisions made and give the impression that the Government was held to account by the people’s representatives.Footnote 10 In some cases, for example when national parliaments had effectively vetoed the Government’s plans for military actions, there is even talk of a quasi-sharing of powers between the Executive and the Legislature.Footnote 11
In the context of the United Kingdom, these developments are captured in my recent monograph, Parliament’s Secret War (co-authored with Hayley Hooper).Footnote 12 In the monograph, we contextualise the recent emergence of a constitutional convention, which requires that the House of Commons should have an opportunity to debate an intervention before troops are committed. The Convention, which was adopted in response to the Iraq invasion and recognised by subsequent Governments, has been hailed as historic and is said to represent a real shift in power from the Government to Parliament. In this context, the book makes a strong argument about how international institutions and international law more generally have facilitated this move: on one side, by failing to provide legal bases for interventions on the international level (e.g. Security Council) thus creating a lacuna for national legislatures to step in, and on the other side, by giving parliamentarians the necessary international law terminology on the basis of which they could assess the legality (and legitimacy) of the use of force. The book makes clear that ‘international law’ has influenced domestic parliamentary discourse in several ways.
This chapter presents the empirical evidence to support the arguments made in and serves as a precursor to Parliament’s Secret War. Through discourse analysis, I seek to empirically trace how international law influences domestic parliamentary language. In this regard, I am interested in how members of Parliament understand and explain their role in the context of decisions to use force. I show how by merely looking at the debates in Parliament, one can conclude that after Iraq there has been a change in power-relations between the Government and Parliament. Tracing the terminology used by MPs, I reveal the decline of the term ‘Government’ and the rise of the reference to the ‘House’. This terminology suggests a shift of focus (and perhaps power) from the Government to the House. The chapter maps out how this shift is mirrored in the increased relevance of international law and specifically the question surrounding the legality of the military intervention. It is this question – and particularly the experience of Iraq – that has reshaped the debates in the UK Parliament vis-à-vis the Government. When the legal basis is ambiguous, Parliament reaches for the ‘international law’ toolbox to assert its responsibility. The presence of ‘international’ concerns in parliamentary discourse then fluctuates depending on the clarity of the basis for the intervention. The investigation also reveals that as MPs become more and more involved and informed on issues of war, the deference shown to international institutions and their evaluation of the situation decreases. MPs appear to become more confident in referring to traditional international terms and more competent to make decisions about interventions themselves.
I Who Has Power?
Prior to the Iraq war, the involvement of the House of Commons in debating a potential military intervention was limited. The House was traditionally engaged after the Government made its decision on intervention and more specifically, after the start of hostilities. According to Tony Blair, this tradition required that the Prime Minister make a statement in the House of Commons, followed by a question and answer session or a potential debate. Yet, these debates never ended in a vote, which would explicitly support or reject the military engagement. Instead, a procedural motion of adjournment was called, allowing the Government to preserve face even when seriously criticised.
In 2003, the questions surrounding the legality of the intervention in Iraq without an explicit Security Council Resolution triggered an important debate in the UK as to the role of the Westminster Parliament. In response to previous disputes, such as Suez and Kosovo, in which MPs were denied an opportunity to debate or have a meaningful vote, concerns were raised that ‘The question of whether British troops are committed to action ought to require the dignity of a more meaningful procedure’.Footnote 13 In face of a strong revolt from Labour backbenchers and the resignation of Robin Cook, MPs were – for the first time – given an opportunity to vote prior to the start of hostilities about whether they supported the war or not.
The Iraq example could be an anomaly in an otherwise consistent practice of governments from both sides of the isle which had sidelined Parliament. Yet, the eventual discovery that no nuclear weapons existed, and the clear illegality of the invasion triggered a period of introspection in the UK.Footnote 14 A number of committees and inquiries debated the issue of the appropriate role for Parliament on questions of military action. The reports (aptly called as Taming the Prerogative and Governance of Britain) underlined the need for the Government to be ‘accountable to Parliament for the use of prerogative powers just as for things done under statutory or common law authority’.Footnote 15 The main complaints made against the traditional arrangements were that the Government was usually only ‘accountable after the event’.Footnote 16 This allowed it to take decisions in a vacuum and escape accountability by providing a reason for intervention only when troops were already on the ground. By that point, most of the strategic decisions had already been taken and a step back from military action would be potentially embarrassing and dangerous for the troops. The involvement of Parliament only at this late stage – effectively as a confirmatory organ – greatly demeaned the House of Commons.Footnote 17 In this regard, the 2003 Iraq vote could not be treated only ‘as an act of generosity by the Government for which we had to be grateful at the time’Footnote 18 but had set a precedent for the future.
As a consequence, by 2011 consensus had arisen around the position that ‘any major military action should have explicit parliamentary approval’.Footnote 19 The Government acknowledged this in the Cabinet Manual by recognising a new ‘convention … that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate’.Footnote 20 This recognition of the role of Parliament in sending troops into battle redefines the relationship between the Government and the House of Commons. The convention puts the traditional arrangements under which the Government is the sole source of the deployment power under question and as a consequence, the old arrangements are no longer sufficient. If ‘Parliament should be the source of Government’s power’, this requires a different role for the Commons.Footnote 21 In this context, the timing of its involvement is key – the Commons has to be involved prior to deployment. In this case, the debate and vote can serve to question the Government about its decision and strategy and Parliament can ultimately provide approval for the exercise of the deployment power. The whole issue can ‘be better scrutinised, better thought through, better prepared and the decision would be better made’.Footnote 22
Since the Manual’s publication in 2011, the House of Commons has been given the opportunity to debate military deployments in relation to Syria, against Islamic State (IS) in Iraq and most recently against IS in Syria. Instead of voting on procedural motions, these are now put as substantive questions of support and approval of governmental actions. Today, MPs could argue that the practice of putting the question to the House on a substantive motion has developed into a binding convention, which requires the House’s involvement every time the Government contemplates military action.Footnote 23 Although the timing of this debate and vote is still inconsistent (sometimes prior, other after the fact), the substantive involvement suggests a fundamental shift in the role of Parliament.
This story of the birth of the constitutional convention and the role and responsibility of the House of Commons in the context of decisions to use force can also be traced in the choice of terminology used by MPs in debates of the House. Nine debates are mapped out on the graph below – from Korea 1950, to Suez 1956, Gulf 1991, Kosovo 1999, Iraq 2003, Libya 2011, Syria 2013, ISIL in Iraq 2015 and Syria 2018.Footnote 24 The picture reveals a clear story of the decrease in the (linguistic) relevance of ‘Government’, eclipsed by an increase in the relevance of ‘the House’. After the experience of Iraq in 2003, the importance of the House of Commons can be visible as a slight bump on the graph. A further and considerable increase in the relevance of the ‘House’ can be seen in the context of the 2013 vote in which MPs vetoed the proposed intervention of the Government in Syria against Assad, a day labelled as a ‘historic night’ and ‘a victory for Parliament’.Footnote 25 After this defeat of the Government’s motion to deploy troops to Syria, commentators even argued that the decision of Prime Minister Cameron to comply with the vote in the House suggests the so-called ‘consultation’ convention has solidified into a binding constitutional convention regulating relationship between two institutions of the constitution and that as a consequence Westminster Parliament had acquired a type of veto-power over decisions on military action.Footnote 26 This, however, appears to have been the peak of Parliament’s power. Since then, subsequent governments (under Theresa May) appear to have taken a step back and the extent of power that Parliament has over these issues remains unclear.Footnote 27 This fluidity is visible on Figure 14.1 as references to ‘the House’ decrease after 2013.
Figure 14.1 Who has power? Relative frequency of terms
The terms ‘House’ and ‘Government’ cannot be seen in isolation from what they require: The growing reference to the ‘House of Commons’, for example, is mirrored by the relevance of the terms such as ‘responsibility’ and ‘duty’ to refer to MPs’ role, as well as the appearance of the terms ‘constitutional convention’,Footnote 28 all of which become more widely used after 2003. For example, although MPs initially had no ‘legal or constitutional right to decide the matters [of military deployment]’, they had a ‘duty to represent the people’.Footnote 29 In contrast, after 2011 MPs insist that ‘the new convention places a responsibility on Members of Parliament to weigh up the arguments and vote according to their conscience’.Footnote 30 ‘Being a Member of Parliament is a great honour, but it carries responsibility: the responsibility for deciding whether one agrees with the Government of the day’.Footnote 31 If before the focus was on helping and supporting Government, now this new responsibility requires parliamentarians to hold the Government to account. If military intervention will be waged with the approval of Parliament, then ‘with deeper engagement comes greater responsibility’,Footnote 32 a responsibility, which MPs cannot abdicate.
The convention therefore not only appears to shift the discourse about the power from the Government to Parliament, it also very clearly changes how MPs perceive their own function.
II The Role of International Law in Domestic Parliamentary Discourse
When the constitutional convention was emerging, the most frequently asserted reason for its birth and recognition was the idea of increasing the accountability of the Government to the House.Footnote 33 The aim was therefore to democratize the prerogative power. Yet, in Parliament’s Secret War, we put forward a different argument – one that questions whether the idea of accountability was the main driving force in the recognition of the convention. Instead, we argue that the consistent failure of the Security Council to act and support military action in certain conflicts, created a ‘lacuna’, which ‘could be filled by domestic legislatures’.Footnote 34 The failure of the international community to provide authorisation for action in the context of Kosovo, Iraq, Syria and Yemen, etc., had prompted subsequent governments to turn inwards and look to their own parliaments to provide legitimacy for their action. The developments on the international sphere have therefore triggered a ‘domestication’ of decision-making.Footnote 35 In the UK, this has placed Westminster Parliament centre stage and has made MPs primary decision-makers on decisions to use force.Footnote 36
The shift of decision-making from the international sphere to the domestic, however, ‘has not resulted in a more domestically focused discourse. Instead, the discussions in the House have focused precisely on those questions which the international community should have resolved – questions of the legality of the use of force’.Footnote 37 In many ways, Westminster Parliament appears to be carrying out similar functions as the Security Council – for example, testing whether there is enough basis to support military action proposed by their Government.
This can be clearly seen in the graph below.Footnote 38 Looking at the different disputes of the last seventy years, it is clear that those which have a clear international authorisation (Gulf War and Korea),Footnote 39 raise little if any concerns about international law. For example, in relation to Korea, MPs talk about the ‘authority of international law’ and the need for Britain to ‘act up to [its] supreme international obligations’.Footnote 40 In these cases, the additional support and legitimacy that a national parliament could provide to an already authorised international action is minimal and MPs therefore appear not to be too concerned or worried about international norms. References to ‘international’ law are minimal.Footnote 41
In contrast, the peaks of debate about international law can be seen clearly (on Figure 14.2) in cases where the international basis for the intervention is unclear or ambiguous: after Iraq 2003, most references to international law are made in the context of the 2013 Syria debate and in 2018. However, the most visible peak of concern about ‘international’ legality of military action can be seen in relation to the 1956 Suez crisis, in which Britain helped Israel and France in the nationalization of the Suez Canal. The action was condemned by the international community, but the Security Council failed to condemn the nationalisation due to France and Britain’s veto.Footnote 42 In the Suez debate, which followed in the House, there were 302 references to ‘international’ law. Later, in 2003, Iraq generated 98 references.
Figure 14.2 International and war/action: relative frequency of terms
Developments on the international level have therefore created space for domestic parliaments, but they have also – at least indirectly – imposed a responsibility on MPs to not allow themselves to be used strategically in a manner that enables the Government to fill the void at international law level. As the Constitutional Committee in its Waging War Report found:
Given the absence of legal restraint on the deployment power under domestic law, the rules of international law on the use of force take on an enhanced significance as the only apparent limitation on the prerogative. Domestic legality does not pre-empt international law. In other words, action, which may not be unlawful under domestic law, could be in violation of international law.Footnote 43
In fact, looking closely at debates, international law appears to provide MPs with the framework and language with which they can carry out their functions. In Suez, for example, MPs underlined that the UK as a member of the United Nations had ‘steadfastly avoided any international action which would be in breach of international law or, indeed, contrary to the public opinion of the world. We must not, therefore, allow ourselves to get into a position where we might be denounced in the Security Council as aggressors, or where the majority of the Assembly were against us.’Footnote 44 Others equally recognized what was at stake: ‘are we to live under a regime of international anarchy or international law? … We all recognise that [the Charter] has its limitations. … But nevertheless it has sufficient authority for one to say that no action that we take … should be in derogation of the Charter, much less in contradiction of it’.Footnote 45
In Iraq, when debating potential military action, MPs objected that ‘The action against Iraq is, I believe, pre-emptive, and therefore demands even greater international support and consensus than other sorts of intervention. We do not have it. Such isolation entails a genuine cost and danger. It undermines the legitimacy that we must maintain to tackle the many threats to global security’.Footnote 46
These concerns run through the debates that seek to fill the void left by unauthorised, unilateral military interventions. In fact, MPs appear to have internalised international concerns about the legality of the proposed action and worry about how they will be perceived by the international community.Footnote 47 For this reason, when the Government makes its case to MPs, it does so in a similar manner as it would before the United Nations – by referring to the Charter and presenting the intervention as ‘necessary’ and ‘proportionate’. In turn, MPs – in effect invited to step into the shoes of the Security Council and support the use of force – pick up on this international language of ‘necessity’ and ‘proportionality’ and use the same terminology to assess and evaluate the legitimacy of the proposed military intervention. The graphs below show clearly how in the debates of the Commons the use of the terms ‘necessary’ and ‘proportionate’ – to refer to the appropriate extent and scope of the use of force – have skyrocketed since the Iraq War.Footnote 48 Before 2004, MPs barely made use of this terminology to discuss the use of military action (bar the blatant exception of Suez). Even in relation to the Falklands Islands, where the intervention was defined as one of self-defence, the necessity and proportionality were not high on the agenda. After 2004, both terms ‘necessary’ and ‘proportionate’ feature prominently as seen in Figure 14.3 (e.g. in the context of debates concerning Libya 2011 – ‘necessary’, Syria 2013 – ‘proportionate’, Syria 2015 – both).
Figure 14.3 Use of terms ‘necessary’ and ‘proportionate’
The graphs in this section portray the lessons from Iraq clearly: since 2004, MPs regularly require that the Government seek a legal opinion about potential military action and make a clear case as to the legality of the intervention.Footnote 49 But their expectations do not stop there – an assessment of proportionality of the action is also expected and MPs themselves will query this element of the intervention throughout the debate. The ‘proportionality’ graph shows beautifully how before 2003, no assessment of proportionality took place in the Commons. Since then, however, MPs are not only informed about what international law requires but also concerned that the country complies with its requirements.
It is clear from what has been said that whilst international concerns have always been at the heart of debates in Parliament (partly due to the international nature of war), with the birth of the War Powers Convention after 2003, interest in international law has steadily increased, driven by the need for accountability. This need was more pronounced in situations where military intervention had no clear authorisation from the Security Council, that is, in the case of Syria 2013 and airstrikes in Syria in 2018. The graph below shows clearly how the enhanced involvement of the ‘House’ (and the power associated with it) and the need to hold the Executive to account for the proposed ‘action’ directly correlates with the House’s attention to ‘international’ concerns. Since 2003, when the Pandora’s box for enhanced parliamentary involvement was opened, the three lines (and seen on Figure 14.4) appear to move almost in parallel. The strong link between the ‘international’ and the power and relevance of the ‘House’ is therefore clear.
Figure 14.4 House, action and international law: relative frequency of terms
III The Implications for International Law
Governments have turned to domestic parliaments strategically, inviting them to fill the lacuna left by the international community (e.g. Security Council). MPs appear to have accepted this challenge and have become increasingly more confident and more competent to discuss the use of military action in terms usually preserved for the Security Council. The question however arises as to whether the new role of the Commons has – at least internally – increased or decreased the relevance of the United Nations and the Security Council. And what does Westminster Parliament’s decision to act instead of the Security Council mean for the international community and for international law?
From the view of debates in Parliament, it is clear that references to the ‘United Nations’ have importantly decreased. If in Korea, Suez and during the Gulf war, the United Nations was in the forefront of MPs minds, this is no longer the case. Since 2011, when the War Powers Convention was officially recognised and the position of the Commons solidified in relation to decisions to use force, these references have fallen even further. A similar trend can be seen in relation to the ‘Security Council’. Whilst references to the Council have remained steady throughout the sixty years, since 2011 there has been a steep drop in their appearance in debates in the House (as seen in Figure 14.5). It is this drop which is perhaps the most remarkable: once the issue of the use of military action is ‘domesticated’ through the War Powers Convention, references to the UN, the Security Council and even the ‘international community’ become so rare that regardless of whether the use of force is authorised or not, these external bodies/audiences appear to become less relevant in the domestic debate.Footnote 50 As the position of the Commons to have a say on the matter is solidified and MPs become more involved and informed on issues of war, the deference shown to international institutions and their evaluation of the situation decreases.
Figure 14.5 The UN and international community
This is confirmed by the most recent 2019 report of the Public Administration and Constitutional Affairs Committee, which investigates the role of Westminster Parliament in debates to authorise the use of military force. The aim of the report is to explore the scope of the War Powers Convention and the role of Parliament vis-à-vis the Government after the Iraq, Libya and Syria 2013, 2015 and 2018 experiences. Although the report mentions the UN Charter (once and in footnotes!), it does not refer to the United Nations, the Security Council or the international community.Footnote 51 Even more, the term ‘international law’ does not appear in the report.Footnote 52 The document is therefore clearly concerned to situate Parliament in the domestic sphere, rather than define its role vis-à-vis international institutions or the international community. In the domestic sphere, Parliament can claim to have a say in authorising military action, or as some commentators asserted even a ‘de facto veto power’,Footnote 53 but its role – which emerged due to a lacuna created by the international community – does not remain inextricably linked to the international sphere. Although international terminology may be used by Parliament to assess the legal basis for an intervention, international actors do not appear to feature in Hansard debates.
The shift of decision-making from the international sphere to the domestic has important implications for international law. The sidelining of international institutions not only as fora of decision-making but as fora with expertise in international law signposts a move towards unilateralism and isolationism.Footnote 54 As Murray and O’Donoghue put it:
We challenge the underlying assumption that Parliament’s interventions mark an indisputably positive development in constraining the use of force. When coupled with the focus upon the doctrine of humanitarian intervention which has accompanied many controversial exercises of UK military force since the end of the Cold War, the involvement of Parliament in the decision-making process risks hollowing out UN Charter safeguards. … Relying upon domestic assemblies to provide the sole necessary authorization point for certain uses of force might appear to offer a means to unblock international institutional processes – but this course turns away from international constraints upon the use of force and opens the door to new forms of unilateralism.Footnote 55
Murray and O’Donoghue for example show that in the domestic legislatures claims to self-defence have been stretched far beyond what international law envisages, to include collective self-defence in relation to Afghanistan, situations of pre-emptive self-defence, and targeted killings.Footnote 56 Similarly, Parliament’s Secret War maps out how multiple legal bases are being used by the Government before UK Parliament to make claims about the legality of military action, even though international law excludes accumulation of such arguments (e.g. self-defence versus authorised action).Footnote 57 Both of these practices ‘complicate the question of whether a use of force complies with international law’.Footnote 58 On international level, such claims would not be (or indeed are not successful) since the UK cannot control action of other States, yet domestically they succeed because the legislature is ‘more susceptible to executive influence’.Footnote 59 This is especially true in the UK, where due to the fusion of power between Government and Parliament and the control the former enjoys in the Commons, its decisions are regularly upheld by the House.Footnote 60
Ultimately, the victim of the process of ‘domesticating decisions on military action has been international law, and in particular the UN Charter. By acting instead of the UN and by using international law language, governments have sought to sideline the international community and invited parliamentarians to aid them in redefining what is legally permissible’.Footnote 61 These examples have contributed to the development of customary international law on the use of force, which lives in parallel to and competes with the UN Charter. In this regard, as Hans Blix has commented, national governments – supported by their own legislatures – have become ‘global policemen’, acting without or even contrary to UN mandate, writing their own rules for the use of force.Footnote 62 Such unilateralism undermines the original basic tenets of the Charter, undermines the international institutions that are responsible for its enforcement, and ultimately leads to fragmentation of international law.
IV Conclusion
This chapter traces the influence of international law on the birth of the consultation convention, which has allowed the UK Parliament to be increasingly involved on questions of war. Through discourse analysis, it shows how the way in which members of Parliament understand and explain their role in the context of decisions to use force changed, especially after Iraq. Tracing the terminology used by MPs, I reveal the decline of the term ‘Government’ and the rise of the reference to the ‘House’. MPs speak of their own ‘duty’ and ‘responsibility’ to weigh up arguments on the use of force and hold the Government to account. This shift in terminology is mirrored in the increased relevance of international law and specifically the question surrounding the legality of the military intervention. The presence of ‘international’ concerns in parliamentary discourse fluctuates depending on the clarity of the basis for the intervention. When the legal basis is ambiguous, Parliament reaches for the ‘international law’ terms like ‘necessity’ and ‘proportionality’ to assert its responsibility and hold the Government to account. The importance of international law, however, is not limited to the ‘borrowing’ of the international law toolbox. Indeed, the failure of international institutions to provide legal bases for interventions in cases like Kosovo, Iraq, Syria and Yemen, has created room for national parliaments to be involved on these questions in the first place. But as questions on the use of force are ‘brought home’ and ‘domesticated’, this has not led to a reinforced relevance of the international community or its institutions. The investigation for example reveals that as MPs become more informed and confident to discuss issues of war, the deference shown to international institutions and their evaluation of the situation decreases. References to the ‘United Nations’ and the ‘Security Council’ disappear from Hansard debates. Even more, the Government is able to persuade MPs about the legality of the use of force in ways that would not be acceptable at international level. These examples show how increasingly international law is being developed at domestic level independently of international institutions and often unilaterally, by Governments acting only through and with the support of their own parliaments. Gradually, from conflict to conflict, such unilateral action is contributing to the development of customary international law on the use of force, which competes and potentially contradicts with arrangements under the UN Charter. Although hailed as a historic step in the direction of heightened accountability, the recent empowerment of domestic parliaments on issues of the use of force counterintuitively suggests that the future of the international law on the use of force appears to be ‘domestic’.
I Introduction
Foreign relations law defines the foreign relations power of subjects of international law.Footnote 1 It encompasses the domestic law of each nation that governs how that nation interacts with the rest of the world.Footnote 2 In China, there is no field of foreign relations law recognised as such. Rather, the questions animating foreign relations law are deeply entrenched in fragmented provisions among hundreds of different legal texts. Given this fragmentation, this chapter focuses on the negotiation, conclusion, approval and implementation of international environmental treaties and agreements. In 1972, the opening of the Stockholm Environmental Conference marked the beginning of international environmental law and global environmental cooperation. As a part of international law, the functioning of international environmental law largely depends on the willingness and national capacities of states. Since many environmental problems have consequences that reach beyond national jurisdictions, domestic environmental laws and policies will impact other states and global environmental governance. The focus of this chapter is on law and practice concerning Chinese foreign relations law on global environmental governance. It will look into how China has been constructing its foreign relations law relating to environmental governance both nationally and globally and will propose that Chinese foreign relations environmental law and policy be conceived as a basic structure of foreign relations law.
The next part of this chapter will demonstrate the current status of Chinese foreign relations law and how Chinese international law scholarship perceives it (Section II). It will be highlighted that a comprehensive field of Chinese foreign relations law is so far only a product of scholars’ efforts. The third part of the chapter will address why Chinese law does not include a general foreign relations statute (Section III). I maintain that traditional doubts, caution and silence from the law constitute three main factors. Yet, since 1972, the relationship between environmental governance in China and its global counterpart has turned out to be rather dynamic. This dynamic relationship has been developed and reinforced by ‘Chinese environmental diplomacy’, which helps to explain its role in Chinese ‘foreign relations environmental law and policy’ (Section IV). As Campbell McLachlan wrote, the ‘distribution of foreign relations power between the organs of government’ is one of the functions of foreign relations law.Footnote 3 Therefore, in the fifth part of the chapter, I will explore how powers of Chinese public authorities have been allocated with regard to the negotiation, conclusion, approval and implementation of international environmental treaties and global environmental institutions (Section V). I propose that Chinese administrative organs have developed a coordinated approach to ‘external environmental relations’. In part six, I will discuss the legal status of environmental treaties in China, their place in Chinese law and mechanisms of implementation (Section VI). The conclusion will briefly summarise the main findings on the encounters between global environmental law and governance and Chinese ‘external environmental relations’ (Section VII).
II Debates on Chinese Foreign Relations Law
The history of foreign relations law as a field of study in China is relatively short. A Chinese international law scholar, Professor Liu Renshan of Zhongnan University of Economics and Law, pinpointed that Chinese foreign relations law is an important part of the Chinese legal system. He proposed that ‘foreign relations law’ entails an interconnected and composite legal system comprised of laws, regulations and other normative legal documents dealing with external relations.Footnote 4 According to his account, this field of the law fulfils two specific functions: first, it defines the allocation of powers in foreign affairs, such as which public organs have the right to declare war, deploy peacekeeping forces, send envoys or negotiate and approve international treaties. Second, it governs how international law becomes a part of Chinese law. With regard to these two functions, he listed three categories of sources in Chinese law, the constitution, special lawsFootnote 5 and provisionsFootnote 6 concerning foreign relations. Furthermore, he emphasised that Chinese international lawyers should explore relationships between international law and Chinese domestic law. In May 2016, a conference on ‘Chinese Foreign Relations law: A New Agenda’ stressed the importance of international legal research and practice, especially on matters affecting China and the Chinese people. From then on, a few Chinese scholars have devoted themselves to the topic. Based on his previous research, Liu Renshan extended his proposals on current drawbacks of China’s foreign relations law – namely lack of systematicity, illogical legislative gaps and lack of applicability – and made suggestions how to organise it in a more systematic manner.Footnote 7 On the basis of his analysis of Chinese courts’ contributions to international law,Footnote 8 Cai Congyan, Professor of International Law at Xiamen University School of Law, emphasised the importance of Chinese foreign relations law, mapped its current structureFootnote 9 and sketched the functions of Chinese domestic courts in the interpretation and implementation of international law.Footnote 10 Overall, current voices in Chinese scholarship focus primarily on the ‘significance, status and proposed structure’ of Chinese foreign relations law. The current work of these scholars is mostly constructive and extrapolated from theoretical considerations. There is no statute on foreign relations law in the current Chinese legal system. However, that does not mean that foreign relations law does not exist or does not have practical relevance. To the contrary, the questions animating foreign relations law are deeply entrenched in fragmented provisions among hundreds of different legal texts.
Recently, China has proposed a programme on rule of law in foreign relations, which may lead to the official establishment of foreign relations law as a field of law in the near future. On 31 October 2019, the Central Committee of the Communist Party of China adopted fifteen major decisions on ‘Adhering to and Improving the Socialist System with Chinese Characteristics and Promoting the Modernization of the State Governance System and Capabilities’.Footnote 11 Among these, the thirteenth decision focused on ‘independent foreign policy of peace and promotion of the building of one community of human destiny’, advocating five objectives on foreign relations and law, which are ‘establishment of foreign-related institutional mechanisms’, ‘coordination of foreign exchanges on part of the People’s Congress, the central government, the Central Committee of the Communist Party, the military, local governments, and people’s organizations’, ‘strengthening the Party’s overall planning and coordination of all Party external work’, ‘strengthening the rule of law in foreign relations’ and ‘establishment of a legal system for work related to foreign states’. The thirteenth decision symbolises that the Chinese government is pursuing a systematic construction of ‘foreign relations law’. For the Chinese government, the next step is how to shape its structure and define its scope of application. We will need to assess in the future the impact of this ambition of the government.
III The ‘Underdeveloped’ Foreign Relations Law in China
Two factors contribute to explaining why foreign relations law is so far underdeveloped in China: China’s traditional perspectives on international law (subsection A) and the silence of Chinese law (subsection B).
A Traditional Perspectives on International Law: Doubt and Caution
China’s traditional perspectives on international law depend on the historical experience of certain diplomatic practices.Footnote 12 Some authors have characterised the Chinese modern period (from 1840 to 1949) to be ‘semi-colonial and semi-feudal’.Footnote 13 During this period, the first acquaintance with international law is the treaty of Nanking (1842),Footnote 14 the first unequal treaty in Chinese diplomatic history influencing Chinese attitudes towards international law.
After 110 years of fighting against aggressors, the government of the People’s Republic of China, established in 1949, perceived international law as a Western instrument against socialism. Until 1966, China adopted a strategy of ‘Start All Over Again’, which means that the new Chinese government would stay away from the Western legal system. During the Cultural Revolution (1966 to 1976), China’s diplomacy was still in progress, for example, to retrieve legal rights in the UN and participate in the Stockholm environmental conference, even if international legal research had been ceased. From 1949 to 1978, before the ‘Reform and Opening-up Policy’ was adopted, two characteristics were constitutive for China’s approach towards international law: first, a suspicion towards traditional international law that primarily protected developed states to the detriment of most undeveloped nations and, second, respect for the principles of ‘sovereignty’, ‘territorial integrity’, ‘independence’, ‘equality’ and ‘mutual respect’. After the adoption and implementation of the ‘Reform and Opening-up Policy’ in 1978, China revived international law research and teaching and promoted interactions between international law and diplomacy. From 1979 on, China became a participant of and contributor to the international legal order, for example, it joined over 300 multilateral treaties and 130 international organisations.Footnote 15 With the expansion of its opening-up policy, China became aware of the role of international law in protecting national interests. In its foreign relations, China successfully requested the Alabama Court of the United States of America to dismiss the case of the Huguang Railway BondsFootnote 16 on the grounds of absolute jurisdictional immunity and non-payment of odious debts by appointing its legal counsel to make an appearance on behalf of China in 1984.Footnote 17 Another example, the Guanghua Dormitory (or Khoka-ryo student dormitory) case (1987–2007)Footnote 18 portrays China’s recognition and succession practices in international law.
In 2014, the Chinese government adopted a strategy of a ‘socialist rule of law’.Footnote 19 The strategy emphasised that ‘China will vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen its discourse power and influence in international legal affairs, … safeguard the proper interests of its citizens and legal persons abroad, and foreign citizens and legal persons in China’.Footnote 20 It can be taken from this that China is serious about shaping a new international law order based on their understanding of the principles of ‘sovereignty’ and ‘cooperation’.Footnote 21 While the idea of a ‘socialist rule of law’ as such cannot tell us how China will attain these objectives through specific actions, it forms the background also for the growing scholarly interest in a Chinese foreign relations law.
B The Silence of Chinese Law on Foreign Relations
As far as international law is concerned, China’s Constitution only specifies which organs have the authority to conclude and approve a treaty.Footnote 22 The ‘Law on the Procedure of the Conclusion of Treaties’, adopted by the Standing Committee of the National People’s Congress in 1990, enumerates three categories of treaties that shall be concluded by three corresponding public authoritiesFootnote 23 but does not stipulate the status of treaties in the Chinese legal system. There is also no systematic law concerning how an approved treaty will be implemented in the Chinese legal order. The Civil Procedure Law provides that international treaties shall prevail unless China has formulated reservations.Footnote 24 But the logic of ‘primacy’ cannot be applied to other areas of the law. In WTO law and the law of sea, China adopts the mode of ‘transformation’, which means that specific domestic laws ensure compliance with approved treaties. Consequently, fragmentation and unpredictability characterise the current status of international treaty application in China. As Professor Cai has pointed out, fragmentation and unpredictability also imply flexibility,Footnote 25 and the purpose of this flexible attitude and approach is to progressively find adequate solutions.
IV Chinese Foreign Relations Environmental Law and Policy
While Foreign Relations Law in general is still underdeveloped in China, it can be said that Chinese foreign relations environmental law and policy conforms to a basic structure of foreign relations law. Before discussing the allocation of China’s public powers in global environmental governance and the legal status of environmental treaties in China as key topics of foreign relations law in Sections V and VI of this chapter, I will sketch the encounters of international and domestic environmental law and governance that have resulted from Chinese environmental diplomacy since the 1970s (subsection A) and have led to congruent basic legal principles of Chinese and international environmental law (subsection B).
A Chinese Environmental Diplomacy
Chinese environmental diplomacy has contributed to international and national environmental law. Chinese environmental diplomacy began in 1972,Footnote 26 which also marks the beginnings of international environmental law. In 1972, the Chinese government sent delegations to participate in the Stockholm Conference. It was also the first time that China participated in a multilateral conference for the protection of the environment. Unfortunately, the issues in this conference were not deeply discussed in China because of the ‘Cultural Revolution’. This ‘revolution’ plunged the legal system and social order into chaos. However, it did not stop the progress of Chinese diplomacy, for example, the Government of the People’s Republic of China was recognized as ‘the only legitimate representatives of China to the United Nations’ in 1971.Footnote 27 The reason why China still participated in the Stockholm Conference was that China expected the conference to open valuable opportunities for interacting with the Western world without damaging core national interests.Footnote 28 The first Prime Minister of the People’s Republic of China, Zhou Enlai (周恩来), asked delegations to positively express ideas, policies and understanding and promote independence, economy and solidarity with ‘third-world’ countries.Footnote 29
Stockholm turned out to offer an opportunity for pushing forward domestic environmental protection in China. Learning from global environmental problems at the conference, the delegations reported to Prime Minister Zhou that China also experienced serious environmental degradations. In 1973, the State Council opened the first conference on national environmental protection in Beijing, which put environmental protection on the national agenda. In its aftermath, China adopted a series of laws and regulations. China’s Constitution (1978) firstly provided that China protects the environment and natural resources, prevents and eliminates pollution and other public hazards.Footnote 30 The most remarkable evidence is that the Standing Committee of the National People’s Congress adopted the first comprehensive environmental protection law in 1979.Footnote 31
Chinese environmental diplomacy was not limited to be a learner. From the 1990s onwards, China became active in promoting its understanding of international cooperation. At the 1992 Rio Conference, China and other developing countries insisted that the notion of ‘Common but differentiated Responsibilities’ be one of the guiding legal principles in global environmental governance.Footnote 32 China proposed that industrialised countries should take leading responsibilities for tackling global environmental problems not only for their historical contributions but also for their comparative higher capabilities. At last, the Rio legal instruments reflect this proposal.Footnote 33 The principle of ‘Common but differentiated Responsibilities’ has been one of guiding principles in Chinese environmental diplomacy.Footnote 34
B Congruent Basic Legal Principles of Chinese and International Environmental Law
To better understand Chinese foreign relations environmental law and policy, it is necessary to take into account those Chinese environmental legal principles which overlap with international environmental law. This exercise helps to identify connections and understand official attitudes towards Chinese foreign relations law on environmental governance. Articles 4 and 5 of the Chinese ‘Environmental Protection Law (2014 Revision)’ manifestly stipulate four basic legal principles.
The first principle is the ‘coordination of economic and social development with environmental protection’.Footnote 35 Before the 2014 revision, Chinese environmental protection was coordinated with economic and social development.Footnote 36 In other words, the purpose of environmental protection is to fully realise economic development. After the revision, environmental protection shall be equal to economic development. The principle of coordination, in essence, is consistent with the principle of sustainable development in international law.Footnote 37
The second principle is ‘prevention first’. Generally, the principle holds that any pollution and risk of pollution should be prevented or controlled before they are created. In international environmental law, prevention as a principle only underscores the obligation of states to prevent environmental damage within and beyond their own jurisdiction. Article 5 of the Chinese Environmental Protection Law provides that environmental protection should be focused on prevention. Both public and private entities and individuals should take responsibilities for preventing risks and damages. The three techniques usually applied under the principle in China – environmental impact assessment, environmental standards and environmental monitoring – are consistent with international environmental practices.
The third principle, ‘public participation’, as enshrined in Principle 10 of the Rio Declaration, has been transformed into Chinese environmental law. It is applied in public information, environmental management and impact assessment, class action etc. In 2015, the Ministry of Environmental Protection issued an order on ‘Measures for Public Participation in Environmental Protection’, which portrays special communication channels (letters, faxes, email, ‘12369’ tip-off hotline, public hearings, notification and financial support) to facilitate the participation of non-state actors in environmental decisions.
‘Polluter pays’, the fourth principle, evolved from the Organisation for Economic Co-operation and Development (OECD) and highlights the ‘internalization’ of environmental costs and the assumption of the ‘burden’ by environmental polluters and beneficiaries.Footnote 38 Based on the OECD RecommendationsFootnote 39 and the Rio Declaration,Footnote 40 Chinese environmental law broadens its contents by incorporating an environmental tax law,Footnote 41 rules on the insurance for environmental liabilityFootnote 42 and a compensation mechanism for ecological protection.Footnote 43
The above four principles are stipulated in both international and Chinese environmental law. The normative congruence on the level of principles has been recognised in the Chinese official position on national and international environmental governance in general.Footnote 44
V The Allocation of China’s Public Powers in Global Environmental Governance
The allocation of powers to negotiate, conclude and approve treaties and agreements is one of the core issues in foreign relations law. Due to fragmentations and complexities in international environmental law, and silences in Chinese constitutional law, Chinese departmental regulations provide for different functions for the respective public authorities in individual treaty regimes.Footnote 45 This section will analyse the allocation of China’s public powers in global environmental governance. In 2018, China has completed the ‘State Council Institutional Reform Plan’.Footnote 46 After the reform, the power to negotiate all multilateral environmental treaties was transferred to the Ministry of Ecology and Environment. However, the competence of the Ministry is not exclusive. I will first set out the administrative actors involved in China’s ‘external environmental relations’ (subsection A) before I turn to the allocation of powers in the conclusion and approval of environmental treaties and agreements (subsection B) and in international cooperation with global environmental institutions (subsection C).
A Administrative Organs Involved in ‘External Environmental Relations’
More than one Chinese administrative organ is taking action in global environmental governance, such as negotiations, conclusion and approval of international environmental treaties and international cooperation. These collective and coordinated actions of administrative organs are based on their allocated powers.
In general, it is the State Council that conducts Chinese foreign affairs including the negotiation and conclusion of international treaties.Footnote 47 In practice, the Ministry of Foreign Affairs has been empowered to negotiate international environmental treaties on behalf of the People’s Republic of China and the Chinese government. To achieve division of powers and goal congruence, China has devised a scheme of ‘external coordination’ in multilateral environmental agreements negotiations. In other words, there is not one single public organ that is empowered to negotiate global environmental treaties or agreements.
At present, there are over ten administrative departments involved in the process of external coordination, which consists of three steps. First, the Ministry of Foreign Affairs plays a role as the ‘Window Unit’. The Ministry of Foreign Affairs traces and notifies the everyday development of all issues. Secondly, the Ministry of Foreign Affairs will contact public authorities and assign specific issues to them on the basis of relevance and expertise. For example, matters involving green technologies or forestry will be assigned to the Ministry of Science and Technology and the Ministry of Agriculture and Rural Affairs respectively. The authorities entrusted with the exercise of these assigned powers will set up specialised study groups to propose ideas and draft documents on their own. After respective investigations, all these groups will gather together to exchange ideas, draft, revise and finalise position papers for international negotiations. However, this coordination does not work well all the time. Due to the multifaced nature and complexity of environmental issues, different public organs might propose conflicting environmental policies and goals affecting the process of ‘external coordination’ in environmental diplomacy.Footnote 48
B Allocation of Powers on Conclusion and Approval of International Treaties and Agreements
Article 89 of China’s Constitution provides for the functions and powers exercised by the State Council. Item 8 of this article clearly empowers the Council to conduct foreign affairs and conclude treaties and agreements with foreign states, which is also provided in Article 3 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’.
Questions of approval are more complex. According to the Constitution, two public authorities shall be involved, the Standing Committee of the National People’s CongressFootnote 49 and the President of the People’s Republic of China.Footnote 50 Article 3 of the Law on the Procedure of the Conclusion of Treaties stipulates that the Standing Committee of the National People’s Congress is competent to approve treaties and important agreements, while the President shall approve treaties and important agreements in pursuance of the decisions of the Standing Committee of the National People’s Congress. The authority of approval of the President of the People’s Republic of China is derived from the Standing Committee of the National People’s Congress. In practice, none of China’s international treaties and agreements has been approved by the President. It is noteworthy that the Standing Committee of the National People’s Congress only approves ‘treaties and important agreements’.Footnote 51
1 Approval of Certain Treaties by the Standing Committee of the National People’s Congress
The ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’, literally understood, fully empowers the Standing Committee of the National People’s Congress to approve all international treaties. Article 7 enlists the ‘treaties and important agreements’ that shall be approved by the Standing Committee of the People’s Congress:
(1) treaties of friendship and cooperation, treaties of peace and other treaties of a political nature;
(2) treaties and agreements concerning territory and delimitation of boundary lines;
(3) treaties and agreements relating to judicial assistance and extradition;
(4) treaties and agreements which contain stipulations inconsistent with the laws of the People’s Republic of China;
(5) treaties and agreements which are subject to ratification as agreed by the contracting parties;
(6) other treaties and agreements subject to ratification.
The following remarks will focus on environmental treaty practice with respect to Article 7 paragraphs 4 to 6.
Firstly, according to Article 7 paragraph 4 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’, if provision(s) in an international environmental treaty or agreement depart from existing national law, the Standing Committee has exercised the power of approval over the instrument, for example, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (approved in 1991),Footnote 52 the 1992 United Nations Framework Convention on Climate Change (approved in 1992)Footnote 53 and the 1992 Convention on Biological Diversity (approved in 1992).Footnote 54
Secondly, Article 7 paragraph 5 provides that the Standing Committee shall approve an international treaty or agreement that shall clearly be subject to ratification as agreed by the contracting parties. For example, the Committee approved the Convention for the Protection of the World Cultural and Natural HeritageFootnote 55 in 1988.Footnote 56 The most recent case is the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques,Footnote 57 which was approved in 2005.
In practice, the Standing Committee has exercised its power according to Article 7 paragraph 6, the so-called ‘miscellaneous clause’. The Committee is competent if a new agreement or protocol substitutes an old one that was subject to approval or actually approved by the Committee. For example, in 2006, the 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other MatterFootnote 58 was approved based on the notion of ‘succession of treaty’Footnote 59 because the 1972 Convention was also subject to approval by the Standing Committee. Two further recent examples are the 2013 Minamata Convention on MercuryFootnote 60 and the 2015 Paris Agreement,Footnote 61 which were approved by the Committee in 2016. Although both treaties were neither subject to the national constitutional procedure nor successors of earlier treaties, the Committee still approved them because of their significant implications to environment and human health.Footnote 62
2 Approval of Other Agreements by the State Council
Article 7 of the ‘Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties’ defines the realm of agreements that shall be approved by the Standing Committee. Those agreements that do not fall under one of the six items of Article 7 may be subject to approval by the State Council. For example, the State Council approved the 2000 Cartagena Protocol on Biosafety to the Convention on Biological DiversityFootnote 63 in 2005. The question is when does the State Council exercise its power. No statute specifies those circumstances that empower the State Council.
It is unclear how allocated powers function in international environmental agreements that do not fall under Article 7 of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties. The Standing Committee virtually approved several environmental agreements affecting human health or environment that do not fall under Article 7 without further legislation. As for the State Council, no statute supports its power of approval even if the power has been practically exercised. I would prefer to identify these practices as ‘unpredictable’ consequences caused by ‘legal lacuna’. To achieve predictability, Chinese law should further clarify how to allocate the two public authorities to exercise powers on approval on the grounds of existing practices.
C Allocation of Powers in International Cooperation with Global Environmental Institutions
Apart from concluding international environmental treaties or agreements, China has been also active in cooperating with global environmental institutions. Among these, two institutions, the ‘Global Environmental Facility’ and the ‘South-South Cooperation Fund’ reflect how Chinese public powers interact in international environmental cooperation, as shown in Table 15.1 below.
Table 15.1 Allocated Functions of China’s Public Authorities in International Environmental IssuesFootnote 70
| Name of Public Authority | General Allocated Functions |
|---|---|
| Ministry of Foreign Affairs | Convening of negotiations on international conventions |
| Ministry of Ecology and Environment | Negotiation of Multilateral Environmental Agreements |
| Ministry of Science and Technology | Administration and Implementation of ecological scientific technologies |
| Ministry of Agriculture and Rural Affairs | Sustainable development in rural and agricultural matters |
| Ministry of Finance | Collecting and allocating international finance |
| Ministry of Transport | Building and promoting digital and low-carbon transportations |
| Ministry of Water Resources | Hydropower stations constructions |
| Ministry of Housing and Urban-Rural Development | Energy efficient housing |
| Ministry of Commerce | Attracting environmental-related international trade and investment funds |
| China Meteorological Administration | International climate sciences cooperation |
1 Cooperation with the ‘Global Environmental Facility’
Allocation of powers is also an issue with regard to the operation of the Global Environmental Facility (GEF), which is advocated by China.Footnote 64 As a founding member, contributing and recipient country, China has carried out a productive cooperation with the GEF since May 1994.Footnote 65 Until the end of 2019, China has been granted 1,855.84 million US dollars funding from the GEF for 213 projects concerning, inter alia, climate change, land degradation and biodiversity.Footnote 66 Without financial assistance from global contributions, it would be difficult to upgrade Chinese environmental governance. The Chinese government announced that it will prepare to implement all plans supported by the GEF. The GEF can be the major financial resource to realise national environmental protection with bilateral cooperation.Footnote 67
In practice, the Ministry of Finance plays the role of a ‘Focal Point’ in the GEF. Due to its financial nature, all plans and activities should be in accordance with considerations of the national macro-economy, which is instructed by the National Development and Reform Commission (国家发展与改革委员会). To achieve efficient collaboration, the Ministry of Finance and the Ministry of Ecology and Environment jointly established the ‘Secretary Office of China-GEF’ in 2002.Footnote 68 The Office identifies, reviews, monitors and assesses all programmes proposed by the Ministry of Finance. If a proposed programme is accepted by the Secretary Office, the Ministry of Finance will notify GEF. GEF finally decides whether the programme would be approved.
2 Launching and Building the ‘South-South’ Cooperation Fund
China is not only receiving assistance, but also contributing to environmental financing. In 2015, Chinese President Xi Jinping launched the proposition to set up a ‘South-South’ Cooperation Fund at the United Nations Development Summit. In his speech, he proposed that China would contribute two billion dollars to support developing countries to implement the ‘2030 Sustainable Development Goals’. To effectively implement the fund, the Ministry of Commerce promulgated the ‘Consultative Draft on Application and Administration of the South-South Cooperation Fund’ in 2016.Footnote 69 According to this draft, the Ministry of Commerce will administer the approval, management and supervision of funding programmes. If a foreign entity intends to receive assistance, it shall submit application files to its corresponding commercial organ or representative office in China. The Commercial Representative Offices affiliated to Chinese embassies and consulates abroad will assist the Ministry to manage and supervise the programme when the international application is approved.
VI The Legal Status of International Environmental Treaties in China
By the end of 2019, China is a state party to ninety-nine multilateral, seventy regional and bilateral environmental treaties, agreements and protocols, which almost cover all environmental areas. With the increasing number of international environmental agreements particularly two questions arise, which are another core issue of foreign relations law: the place of international environmental agreements in the Chinese legal system (subsection A) and how international treaty provisions become part of Chinese law (subsection B). This section of the chapter will address these two issues in the light of the applicable Chinese law, with a focus on international environmental law.
A The Place of Environmental Agreements in Chinese Law
An approved international treaty occupies an uncertain place under Chinese law. Under constitutional law, the hierarchy in the system of Chinese environmental law follows the hierarchy of public authorities:Footnote 71 comprehensive environmental law and standards adopted by the Standing Committee of the National People’s Congress; environmental regulations and standards adopted by the State Council; departmental regulations adopted by Central Ministries and Commissions.Footnote 72 Very few Chinese scholars contend that the legal nature of approved treaties or agreements depends on the hierarchy of public authorities. According to this view, for instance, an international environmental treaty can be equal to environmental law when it was approved by the Standing Committee.Footnote 73 I am very sceptical about this proposition. The standard of ‘hierarchy’ shall be strictly limited in the context of Chinese lawmaking. It is implausible that the status of treaties or agreements could be arbitrarily determined by the hierarchy of the approving authority without any basis in a statute.
B Methods of Implementation
China has been always upholding that it will conform to international law irrespective of whether this contradicted its national law and policy. Yet, current Chinese law does not provide a specific approach to implement international legal obligations. In accordance with existing practice, some legal scholars contend that there are three ways for international treaty provisions to become part of China’s domestic law: transformation through legislation (subsection 1), execution by administrative measures (subsection 2) and direct application of international treaties (subsection 3).Footnote 74 These observations are confirmed by the practice of Chinese environmental law.
1 Transformation through Legislation
The process of transformation generally takes place in two alternative ways. A first option is the enactment of special legislation. Generally, it is the State Council that promulgates departmental regulations. For example, in order to implement the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,Footnote 75 the Regulations on the Safety Management of Hazardous ChemicalsFootnote 76 were adopted in 2013. The second approach is the incorporation of treaty obligations into existing laws by amendment or revision. The typical example is that the State Council adopted the 2018 Amendment of the Regulation on the Administration of Ozone Depleting SubstancesFootnote 77 to fulfil legal obligations under the Vienna Convention for the Protection of the Ozone LayerFootnote 78 and the Montreal Protocol on Substances that Deplete the Ozone Layer.Footnote 79
2 Execution by Administrative Measures
Sometimes, administrative measures may be adopted to address harsh environmental problems, since it is time-consuming to transform international legal obligations into statute. Hence, administrative organs or offices may be authorised to promulgate regulatory documents.Footnote 80 The most recent case is the Chinese government’s ‘no’ to foreign garbage, which is a matter governed by the Basel Convention. In 2017, under the approval of the State Council, the General Office of the State Council issued a ‘Notice on the Issuance of the Implementation Plan for Prohibiting the Entry of Foreign Garbage and on the Advancement of the Reform of the Solid Waste Import Administrative System’.
3 Direct Application
Chinese environmental laws provide for general objectives, obligations and accountabilities. Normally, supplementary provisions address how an international environmental treaty will be dealt with when it is not in conformity with national laws. Out of twenty-seven national laws only two explicitly define the status of international environmental treaties in case of conflicts.Footnote 81
Article 96 of the Marine Environmental Protection Law (2017 Amendment) states that:
Where an international treaty regarding marine environment protection concluded or acceded to by the People’s Republic of China contains provisions differing from those contained in this Law, the provisions of the international treaty shall apply; however, the provisions about which the People’s Republic of China has reservations shall be excepted.Footnote 82
This provision reflects that international environmental treaty law prevails over national law in the field of marine protection. It also proves that direct applicability of environmental treaties has been presupposed in Chinese environmental law, although very few environmental laws directly pinpoint the approach. Since most provisions in environmental treaties are vague, national law normally is not in conflict with treaty provisions but concretises them for special circumstances.
VII Conclusion
China does not have a systematic law and practice concerning foreign relations. Its two characteristics of fragmentation and unpredictability can be explained by historical doubts and cautions towards international law, a western-dominated discourse and system of international law, and silence on the part of China’s Constitution. Chinese environmental diplomacy helps to further comprehend Chinese foreign relations environmental law and policy. While there is no field of foreign relations law recognised as such in China, Chinese foreign relations environmental law and policy conforms to a basic structure of foreign relations law. China devised and operated distributed authorities through external coordination in international environmental treaty negotiations. According to the law and administrative regulations, the Standing Committee and the State Council are empowered to ratify or conclude international environmental treaties or agreements under special conditions. A ratified treaty becomes part of the Chinese legal system. To achieve compliance, Chinese legislative authorities may adopt transformation, executional measures or direct application.
The overall picture painted in this chapter hence points to a nuanced answer to the question of the existence of a Chinese foreign relations law: it does not exist as a separate field, but there are many components of Chinese domestic law which fulfil typical functions of a foreign relations law. In particular, they help to construct bridges and establish boundaries between public international law and the Chinese legal framework. Further research on the prevalence of similar conditions of the Chinese legal framework for other fields of international cooperation would be a welcome addition to the global scholarship on foreign relations law as well as public international law.
Open access