Narrow Gate? The Process of Entering International and EU Agreements into the Constitutional Order of an EU Member State: the Example of the Czech Republic

Abstract

The aim of this article is to illustrate various pitfalls which must be dealt with before an international agreement may begin to function, ie before it creates a legal obligation upon a contracting state. The Czech Republic is, according to the authors, an appropriate exam¬ple to illustrate this, for various reasons, as it is an EU Member State with a (prevailing) parliamentary form of governance and a (rather complex) bicameral parliament. In the first place, the authors deal with the historical and comparative context of the ratification procedure of international agreements in the Czech Republic. Since this procedure in every country involves the interplay of several bodies, a proper evaluation of the historical con¬text may help in the interpretation of constitutional regulation, which is rather brief in the Czech Republic. One of the main questions of the ratification procedure, which the authors address, is the role of the president of the Czech Republic in the procedure of the ratification of international agreements. On the basis of the historical and the current constitutional regulation, the authors conclude that the compe¬tence of the president related to international agreements cannot be considered to be his/her prerogative. The president’s act of ratifica¬tion is, according to the authors, the formal conclusion of an internal consultation procedure on an international agreement in the Czech Re¬public. In exercising this competence, the president is endowed with a very limited margin of discretion. The authors furthermore make a comparative study based on a questi¬onnaire circulated via the European Centre for Parliamentary Resear¬ch and Documentation on the role of the government, parliament and the head of state in the ratification procedure of international treaties. The main part of the article deals with selected problems and possi¬ble solutions of the negotiation procedure of international agreements and the practice of application (namely the provisional application of international treaties, the classification of international treaties, repe¬ated submissions of the proposal on the expression of consent with the ratification of an international treaty by chambers of parliament, simplified parliamentary approval for the ratification of presidential treaties, and the concept of ratification). The article ends with brief observations regarding international trea¬ties concluded by the European Union or the Union together with the Member States, the significance of which will probably continue to increase.