Rm-1/00

Reference no.:
Rm-1/00
Objavljeno:
Official Gazette RS, No. 43/01 and OdlUS X, 78 | 19.04.2001
ECLI:
ECLI:SI:USRS:2001:Rm.1.00
Act:
Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation, Art. 1
Operative provisions:
Art. 1 of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation is not inconsistent with Sect. II of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia. Art. 1 of the Agreement cited in the previous paragraph is not inconsistent with Art. 2 of the Constitution.
Abstract:
In accordance with its legal character, the Agreement belongs to the so-called territorial treaties. These are not border treaties but agreements on some States' cooperation on certain, mostly border, territories. Their subject of regulation can be the local border traffic of persons, goods or services, the protection, regulation and use of water channels and the sea on the border territory, the protection of border territories against pollution, different types of border authorities' cooperation and international servitudes.

The Agreement as a treaty on the border system directly touches upon the question of exercising authority on the border territory. Thus, the Constitutional Court reviewed Art. 1 of the Agreement concerning the meaning of Sect. II of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (hereinafter TUL), in connection with its provision that the border between Slovenia and Croatia remain such as was "within the framework of the former SFRY", and therefore presumably known, however, not yet concretized in a treaty on the border and determined on the ground. The Constitutional Court interpreted Sect. II of TUL in the part regulating the border between Slovenia and Croatia on the basis of the uti possidetis principle, which is a generally recognized principle of international law and as such applies also to Slovenia. Applying the uti possidetis principle, the Constitutional Court established that at the moment of the establishment of the sovereign and independent Slovenia, its former republic border with Croatia "within the framework of the former SFRY" became its internationally recognized State border. The Agreement is a treaty that has not yet become part of the domestic legal system of the Republic of Slovenia. In its interpretation the Constitutional Court thus applied the interpretative provisions of Art. 31.1, 2 and 3 of the Vienna Convention on the Law of Treaties (hereinafter DKPMP). It established that the Agreement, which determines the border on land and listed the settlements in Slovenia and Croatia embraced in Appendices A and B (Art. 1.1 of the Agreement), in fact follows TUL and, as interpreted by the Constitutional Court, is not contrary to it.

Furthermore, concerning the sea border territory, which is defined as a functional whole (Art. 1.3) and which in terms of space does not completely correspond to the border territory on land, the Constitutional Court established that the Agreement does not prejudice the State border in contradistinction to TUL. The Constitutional Court held that the question whether the implementation of the Agreement will in practice in fact lead in certain parts of the land border to a certain type of "determination" of the border line, although only for the purpose of implementing the Agreement, or whether such implementation of actual authority could worsen the position of Slovenia in possible subsequent negotiations, is not a constitutional question, but a political one. Such question must be answered by the National Assembly when deciding on the ratification of the Agreement.

The Constitutional Court also reviewed the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution. It had to review whether the Agreement provisions were, concerning the subject and purpose of the Agreement, clear, understandable and unambiguous, and whether they could be applied without a special interpretation by the authorities responsible for their implementation. It considered the fact that the Agreement is not an agreement on determining the State border but an agreement on border cooperation, and thus is not able to regulate the questions which may otherwise remain open between the States.

Other open questions between the States are not the subject of this Agreement, and its purpose is not to regulate the same. The Constitutional Court established that an analysis of the Agreement demonstrated that its provisions corresponded to the said criteria and were thus, considering its purpose and subject, in conformity with Art. 2 of the Constitution.

Regarding the question whether the implementation of Art. 1 of the Agreement will worsen the position of Slovenia in possible negotiations with Croatia, the Constitutional Court emphasized in reviewing the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution that it is not possible to derive the assumption that the Slovenian part of the Permanent Mixed Commission and the Government, in implementing the Agreement, will make detrimental decisions for Slovenia. Such possible concerns are not a question of constitutionality (conformity with Art. 2 of the Constitution), but a question of trust in the executive branch of government and a political decision. This is to be evaluated by the National Assembly as the legislature, and is not a matter for constitutional review within the jurisdiction of the Constitutional Court.
Password:
Constitutional Court, lack of jurisdiction to review trust in the executive branch of government.
Constitutional Court, review of the constitutionality of a treaty (prior review).
Principles of a State governed by the rule of law.
State, State border, determination, border cooperation.
Sea, routing system, State border.
Treaties, territorial, ratified.
Treaties, border cooperation.
Treaties, perpetual.
Uti possidetis principle.
Regulations, definiteness, clarity, unambiguousness.
Constitutional Court, jurisdiction to review a political decision.
Concurring opinion of a Constitutional Court judge.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 2, 4, 8, 86, 160
Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (TUL), Section II
United Nations Convention on the Law of the Sea, Art. 22
Constitutional Court Act (ZUstS), Art. 70
Note:
In the reasoning of its decision, the Constitutional Court referred to its case No. Rm-1/97, dated 5 June 1997, Official Gazette RS, No. 40/97 - DecCC VI, 86.
Document in PDF:
The full text:
Rm-1/00-29
19 April 2001

O P I N I O N

At a session held on 19 April 2001 in the proceedings to review the constitutionality of a treaty on the proposal of a third of the deputies of the National Assembly, the Constitutional Court

i s s u e d a n o p i n i o n:

1. Art. 1 of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation is not inconsistent with Sect. II of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia.

2. Art. 1 of the Agreement cited in the previous paragraph is not inconsistent with Art. 2 of the Constitution.

R e a s o n i n g

A.

I. The Proposal of a Third of the Deputies

1. On 27 January 2000, a third of the deputies of the National Assembly filed in the Constitutional Court a proposal for the issuance of an opinion on the constitutionality of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation (hereinafter the Agreement or BHROPS). The proposers supplemented their proposal on 3 March 2000 and 5 April 2000.

2. They suggested that the Constitutional Court issue an opinion on the conformity of BHROPS with the Constitution. In the opinion of certain deputies, Art. 1 of BHROPS was contrary to Sect. II of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (hereinafter TUL).

The disputed article allegedly prejudiced the determination of the course of the State border between Slovenia and Croatia. The proposers, who otherwise did not question the constitutionality of the mentioned Agreement, suggested the review of its constitutionality in order to settle all issues concerning its constitutionality, and refute the claim that they supported an unconstitutional agreement.

II. The Reply of the Government

3. The Government asserted that the purpose of entering into the Agreement was already clearly defined in the Initiative for Entering into the Agreement, which was, according to Art. 59 of the Foreign Affairs Act (Official Gazette RS, No. 1/91 - hereinafter ZZZ), on 27 July 1993 submitted to the National Assembly International Relations Committee. It read as follows: "The Agreement on Border Traffic and Cooperation is intended for the people (the owners of property on both sides of the border, the daily and weekly commuting of workers and school-children from one State to the other, the harmonizing of the living conditions of the Italian minority on both sides of the border, the traffic connections of certain areas with areas in the other State) who live on the Slovenian and Croatian border and who face everyday living problems due to the border" (Subsection 1.3 of the Initiative).

4. The Government explicitly emphasized the lack of connection between BHROPS' provisions and the questions of the final determination and marking of the border between the Republic of Slovenia and the Republic of Croatia. It stated that the Governments of both States on 30 July 1993 concluded the Agreement on the Constituting and Competencies of Joint Bodies for the Establishment and Marking of the State Border (Official Gazette RS, No. 55 - IT, No. 16/93). On the basis of this Agreement a mixed diplomatic commission was constituted (hereinafter the diplomatic commission) with the task of establishing and marking the State border through negotiation.

Furthermore, the Agreement's preamble, which determines the aims and the purpose of the Agreement, and in particular its Art. 59, disallow the possibility that BHROPS would prejudice the course of the State border.

5. The Government also stated possible negative consequences that the non-ratification of the Agreement could have for the border system with Croatia once Slovenia joins the Schengen acquis. It stated that the Protocol on the Incorporation of the Schengen Acquis into the Framework of the European Union (hereinafter the EU), which is a constituent part of the Amsterdam Treaty, determines in Art. 8 that all candidate States for EU membership must fully assume the so-called Schengen acquis. The Government asserted that the reaching of agreements on border traffic would, after accession to the "Schengen circle," require the explicit consent of all member States, since the matter would then concern the crossing of external borders, at which border control is carried out for all the member States. Reaching border agreements was allegedly made even more difficult after the entry into force of Chapter IV of the Treaty Establishing the European Community (Visas, asylum, immigration and other policies related to free movement of persons), which belongs to the so-called first pillar of the EU and will be regulated by Community legal instruments. The Government stated that the practice of admitting the neighboring States of Italy and Austria to the "Schengen circle" demonstrated that other member States had accepted their agreements on border cooperation with Slovenia as the state of affairs these two States brought with them. Thus, these two systems were with no difficulties accepted into the Schengen acquis as appendices to the Joint Manual.

6. The Government also enclosed a partial report on a meeting of legal experts concerning the questions that hinder the continuing process of ratifying BHROPS, which was held on 15 July 1998.

Among other participants in the meeting there were also the international-law experts Prof. Dr. Borut Bohte and Doc. Dr. Miha Pogačnik, of the Ljubljana University Law Faculty. From their discussion it follows that they stated the existence of the land border between Slovenia and Croatia was based on TUL, which will have to be established and marked in the field. They referred to Opinion No. 3 of the Arbitration Commission for Yugoslavia.

Regarding the sea border between the States, they were in favor of the position that it would need to be determined, since it has not yet been determined between the two States. From their discussion it follows that given the explicit safeguard in Art. 59, the Agreement does not prejudice the course of the future State border with Croatia.[1]

B. - I.

III. The Purpose of the Entering Into, Substance and Legal Character of the Agreement

7. The basic reason for reaching the Agreement was the fact that by gaining independence, the former republic border between Slovenia and Croatia became their State border. This undoubtedly made the life and work of the people on the border territory more difficult. The purpose of the Agreement was to make easier the everyday life and work of the people living on that territory.

The Government stated this in the Initiative for Entering Into the Agreement. For this purpose, already in the years 1991 and 1992, the Ministries of the Interior of both States had agreed upon and noted the practice of providing certain facilities to the border population.

8. The purpose of entering into the Agreement derives from its preamble, which reads as follows: "... in the wish (of the contracting Parties) to make possible and regulate the traffic of persons between the border areas and to improve the living conditions of the border population, ... to enable as free business cooperation as possible...," and thereby aware of the fact "... that border local communities are the basis of fruitful cooperation between the neighboring States". The Agreement is divided into ten chapters and has eight appendices (A, B, C, D, E, F, G, H), which are its constitutive parts (Art. 60.4).

9. The titles of the individual chapters are:

I. The Territory of the Application of the Agreement (Art. 1);

II. Border Crossing in the Framework of Border Traffic and Documents for Border Crossing (Arts. 2 to 10);

III. Farming and Forestry Activities, the Owners of Property on Both Sides and Border Crossing (Arts. 11 to 19);

IV. Border Crossing Outside Official Border Crossings (Arts. 20 and 21);

V. Foreign Exchange and Custom Relief (Arts. 22 to 24); VI. Sea and Land Traffic on the Border Territory (Arts. 25 to 40);

VII. Cross-Border Economic Cooperation (Arts. 41 to 53); VIII. The Authorities to Implement the Agreement (Arts. 54 and 55);

IX. The Issuance, Rejection or Seizure of Visas or Documents and the Receiving of Denied Persons (Arts. 56 and 57); X. General Provisions (Arts. 58 to 60).

10. In accordance with its legal character, the Agreement belongs to the so-called territorial[2] treaties. These are not border treaties but agreements on the cooperation of States on certain, mostly border, territories. Their subject of regulation can be the local border traffic of persons, goods or services, the protection, regulation and use of water channels and the sea on the border territory, the protection of border territories against pollution, different types of border cooperation by authorities and international servitudes. Although border agreements reached either bilaterally or multilaterally are frequent in the practice of States, doctrine or interstate case law on their legal character is rare.[3] The basic difference between border agreements and treaties on the determination (and/or marking) of the State border is that the latter concern so-called permanent contractual systems or contracts made for an indefinite time, and in their case it is not permitted by international law to claim essentially changed circumstances (the rebus sic stantibus clause) as a reason for the cessation of the validity or the rescission of contract.[4] Regarding this question, border agreements, which can be made for a limited or unlimited time, have the character of general treaties. BHROPS is concluded for three years and tacitly extended for another year if no contracting Party rescinds it in writing through diplomatic channels within six months prior to the expiry of its validity (Art. 60.2). The Vienna Convention on the Succession of States provides with regard to treaties[5] that in the case of both border treaties (Border Systems, Art. 11) as well as other territorial treaties (Other Territorial Systems, Art. 12), the latter including the Agreement at issue, State succession has no effect on their continuing validity[6] due to their close connection with a specific territory. Military servitudes are exceptions (Art. 12.3). However, this question is not relevant in the case at issue, except to highlight the legal character of the Agreement as a territorial treaty. This case does not concern a question of the constitutional conformity of the border agreement, which is part of the States' succession, but a question of the constitutionality of a new agreement between the Republic of Slovenia and the Republic of Croatia, as successor States to the former SFRY that have not yet agreed on their State border.

IV. The Disputed Provision

11. Art. 1 of the Agreement reads as follows:

"1. According to this Agreement, the border area on land encompasses: in the Republic of Slovenia the settlements determined in Appendix A, in the Republic of Croatia the settlements determined in Appendix B.

2. The changes in the areas of settlements and other administrative territorial divisions do not affect the extent of the border areas referred to in this Agreement.

3. According to this Agreement, the border area on the sea is the sea territory under the sovereignty of each contracting Party, lying north of the 45-degree parallel and the 10-minute northern latitude along the western coast of Istria measured from the external edge of the territorial sea of the Republic of Croatia, up to the point where this parallel touches the land of the western coast of Istria (Funtana Cape of Grgat).

4. The border area on the sea is for the area of border sea fishing limited to the territorial seas of each contracting Party in the framework of the border area on the sea determined in Para. 3 of this article."

V. The Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia

12. TUL is a constitutional-level regulation, on the basis of which the sovereignty and independence of the Republic of Slovenia was established. Section II of TUL reads as follows: "The State borders of the Republic of Slovenia are the internationally recognized State borders of the former SFRY with the Republic of Austria, the Republic of Italy, the Republic of Hungary, in the part in which these States border the Republic of Slovenia, and the border between the Republic of Slovenia and the Republic of Croatia in the framework of the former SFRY." B. - II.

VI. The Power and Legal Character of an Opinion of the Constitutional Court

13. Art. 160.2 of the Constitution reads as follows: "In the process of ratifying a treaty, the Constitutional Court, on the proposal of the President of the Republic, the Government or a third of the deputies of the National Assembly, issues an opinion on the conformity of such treaty with the Constitution. The National Assembly is bound by the opinion of the Constitutional Court." With the mentioned regulation the Constitutional Court was, in addition to the powers determined in Para. 1 of Art. 160, vested with the special power of the preventive (a priori) constitutional review of treaties.[7] In Opinion No. Rm-1/97 dated 5 June 1997 (Official Gazette RS, No. 40/97 and DecCC VI, 86), in Paragraph 12, the Constitutional Court wrote inter alia the following: "In our constitutional system, treaties rank above statutory provisions in the hierarchy of legal acts. According to Art. 8 of the Constitution, laws and regulations must comply with treaties that are binding on Slovenia. According to Art. 153.2 of the Constitution, laws must be in conformity with valid treaties ratified by the National Assembly, whereas regulations and other general acts must also be in conformity with other ratified treaties. To actually ensure such conformity, the constitution- framer established in Art. 160.1.2 of the Constitution the jurisdiction of the Constitutional Court to decide upon the conformity of laws and other regulations with ratified treaties. Thus, in the hierarchy of legal acts in Slovenia, treaties rank above statutory provisions. Our legal system, however, does not recognize the primacy of international law over constitutional provisions." The purpose of the preventive constitutional review of treaties is thus to prevent the State from assuming in the process of ratifying a treaty an international-law obligation that is not in conformity with the Constitution.

14. The subject of review may only be the provisions of a treaty which is in the process of ratification, i.e. only of a treaty which has not yet been ratified. Concerning the subject or review, the Constitutional Court issues an opinion on its conformity with the Constitution. An opinion of the Constitutional Court, issued on the basis of Art. 160.2 of the Constitution, is not a consultative opinion. Despite having a different name, such opinion is a decision of the Constitutional Court, which has essentially the same effects as other decisions of the Constitutional Court. Compared with other decisions, it is different in that the Constitutional Court may not interfere by means of it with the reviewed treaty, while it may interfere with reviewed domestic legal acts by annulling or annulling ab inito such if it finds such to be unconstitutional or unlawful.

Also reviewing the conformity of a treaty with the Constitution, the Constitutional Court acts as a State body of domestic law.

For this reason, the Constitutional Court reviews a treaty in terms of its conformity with the Constitution, and not in terms of its conformity with international law.

15. What can be grasped from the part of Art. 160 of the Constitution, which determines the binding character on the legislature of an opinion issued by the Constitutional Court, are the legal effects of such opinion. When the Constitutional Court issues an opinion on the inconsistency of certain treaty provisions with the Constitution, the effects of such opinion are the following: (1) if the treaty can be ratified with reservations, the National Assembly may ratify it provided that they pronounce their reservations concerning those provisions which were found unconstitutional; (2) if the treaty does not permit any reservations, or if such is not permitted according to the Vienna Convention on the Law of Treaties (hereinafter DKPMP), given the applicable constitutional system the National Assembly must not ratify such treaty or may ratify it if the Constitution is first amended. Furthermore, the purpose of the preventive review of the constitutionality of a treaty affirms such interpretation of the mentioned part of Art. 160 of the Constitution, which is to prevent the State from assuming international obligations contrary to the Constitution. In any case such opinion of the Constitutional Court has only domestic effects. It is binding on the National Assembly, however, it bears no international-law effects. If no appropriate constitutional amendments are adopted, the National Assembly must not ratify the treaty. When the Constitutional Court issues an opinion holding that the treaty is not inconsistent with the Constitution, it is up to the National Assembly's political judgment whether to pass a ratification act.

VII. Two Procedural Questions and the Scope of Review

16. A proposal for the review of constitutionality can only be made by three different proposers determined by the Constitution: the President of the Republic, the Government or a third of the deputies of the National Assembly. The Constitutional Court also issued an opinion concerning the special position of the proposers in this case. The proposers who proposed that the Constitutional Court issue an opinion on the conformity of the Agreement with the Constitution were those deputies who opined that the Agreement was in conformity with the Constitution, not those who opined that it was unconstitutional. The Constitutional Court held that Art. 160.2 of the Constitution determines as a condition for exercising the proposer's right to make such a proposal only a certain number of deputies (one third). Thus, the proposers' position concerning the constitutionality of the Agreement to be reviewed is irrelevant as regards their position as proposers. The Constitutional Court took the same position in Case No. Rm-1/97, where it issued an opinion on the conformity of the Europe Agreement Establishing an Association between the Republic of Slovenia, on one side, and the European Communities and their Member States, Acting within the Framework of the European Union, on the other side[8] (hereinafter the Europe Agreement), with the Constitution, on the proposal of the Government, although it opined that the Agreement was not contrary to the Constitution (Paragraph 3 of the reasoning). Although, pursuant to Art. 160.2 of the Constitution, the application concerns a proposal, the Constitutional Court applied, as regards a proposal from a third of the deputies, Art. 23 of the Constitutional Court Act (Official Gazette RS, No. 15/94; hereinafter ZUstS). It acted the same in Case No. Rm- 1/97, when the proposer was the Government. Therefore, it continued with the proceedings notwithstanding the fact that the term of office of the National Assembly had expired.

17. The Constitutional Court only reviewed the explicitly asserted inconsistency of Art. 1 of the Agreement with Sect. II of TUL. It also reviewed Art. 1 of the Agreement with Art. 2 of the Constitution. Only this article was, in addition to Sect. II of TUL, explicitly mentioned in the materials the proposers had submitted or referred to in their applications (the record of the working meeting with the President of the National Assembly on 13 January 2000).

B. - III.

VIII. The Review of the Conformity of the Disputed Provision with TUL

18. The following questions are the two fundamental questions of this review: (1) whether the Agreement prejudiced the border with the Republic of Croatia and (2) whether this was contrary to TUL.

19. An international agreement on border traffic and cooperation presupposes as a rule that the State border between the two States has already been determined. Furthermore, the Government stated this in its reply (Appendix 5). According to the Government, the usual order of reaching agreements is as follows: the States first enter into a treaty on the State border and then reach an agreement on border cooperation. However, such order is not a rule. The Government cited as an example of an exception the Udine Agreement between FLRY and the Republic of Italy on the Regulation of Personal Transportation and Land and Sea Traffic between the Border Areas (hereinafter the Udine Agreement).[9] But this Government's statement is not quite true. The land border between the former Yugoslavia and Italy was in the border area of this Agreement determined by the Peace Treaty with Italy[10] of 1947 and with the Memorandum of Concordance[11] initialed on 5 October 1954 in London. However, the sea border between the States was still not determined with entry into the Udine Agreement in 1962.

20. On 30 July 1993 the Governments of both States entered into the Agreement on the Foundation and Powers of Joint Bodies for the Establishment and Marking of the State border. On the basis of this Agreement, a diplomatic commission was founded with the task of establishing and determining the State border through negotiations.

21. The challenged Agreement does not have direct provisions on the border but cites the settlements, which belong to the border area on land (Art. 1.1 and Appendices A and B). Such approach to determining the border area was already contained in the Udine Agreement.[12] Where in the case of the so-determined border area its "external" border is depends on the regulations of each contracting Party, which determine the scope of the areas of individual settlements. The same applies to the "internal" border of the border area, which is at the same time, considering Sect. II of TUL, the State border between the contracting Parties. Regarding the so-presumed border, overlapping might occur if the areas of settlements are not harmonized and the precise establishment and determination of the State border is not yet agreed upon and carried out in the field. Therefore, the Agreement does not resolve the questions concerning the disputed parts of the land border and leaves open the question of the existence and the determination of the sea border. Furthermore, it does not directly answer the question of which State performs "effective control" (authority) in the possibly disputed areas.

However, this is not a subject of constitutional review. As so far applied, each contracting Party carries out authority on its presumed State territory in the framework of the border area in accordance with BHROPS. Art. 58.1 namely provides that, together with the Agreement provisions, all effective legal regulations of the contracting Parties are applied.

22. Furthermore, the description of the border area on the sea does not contain provisions on the sea border. Compared to the land border area, it is special in that it defines in Art. 1.3 the border area on the sea as the uniform sea space under the sovereignty of each contracting Party, lying north of the 45- degree parallel and the 10-minute northern latitude along the western coast of Istria measured from the external edge of the territorial sea of the Republic of Croatia, up to the point where this parallel touches the land of the western coast of Istria (Funtana Cape of Grgat). The Agreement thus encompasses the whole sea territory north of the mentioned parallel, which lies along the western coast of Istria somewhat above Vrsar, in its entirety, excluding in this part of the sea the open sea and the territorial sea of the Republic of Italy. The thus defined border area on the sea inter alia encompasses the whole sea space under the sovereignty of Slovenia in view of the fact that its area on the other (northern) side is not determined. For the area of border sea fishing (that is, for the economic exploitation of living sea beings), Art. 1.4 limits the border area on the sea to the territorial seas of both contracting Parties. The essential difference between the sea border and the land border between the States is in that the sea area falling within the sovereignty of one or the other State has never been determined between the States in a manner such as the land border.

23. The purpose of the Agreement is not the determination of the border. However, the Agreement as a treaty on the border system directly touches upon the question of enforcing authority in the border area. Therefore, the Constitutional Court must review the Agreement regarding the meaning of Sect. II of TUL concerning its provision that the border between Slovenia and Croatia is in the "framework of the former SFRY", and thus presumably known, however, not yet concretized in a treaty and determined in the field. By means of the interpretation of the Agreement, in particular concerning its purpose, it is necessary to establish whether the Agreement provisions interfere with the border on land between the States and its course in the field, and whether the border area on the sea prejudices the sea border that Slovenia and Croatia still have to agree upon and determine.

24. The provision of Sect. II of TUL, in the part dealing with the border between Slovenia and Croatia, must be interpreted from the view that both States are successor States to the former SFRY as a federal State that has disintegrated and ceased to exist as an international-law entity. The cessation and creation of States and the legal consequences concerning their territories and borders, which follow thereof, are questions in the domain of international law. The legal basis for such finding is in Art. 8 of the Constitution, which provides that "laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia". In terms of international law, at the moment of the creation of the independent and sovereign Slovenia, its former Republican border with Croatia "in the framework of the former SFRY" became its State border, on the basis of the uti possidetis principle. This principle of international law which had developed during the gaining of the independence of former American[13] and African[14] colonies, is a generally recognized principle of international law and is, as such, also binding on Slovenia. The International Court of Justice in the Hague had ascribed it such character in the case of Mali v. Burkina Faso,[15] and has also confirmed it in numerous subsequent cases concerning sea borders.[16] In the case of the process of the disintegration of the former SFRY, also the Arbitration Commission of the Conference on the former Yugoslavia (hereinafter the Arbitration Commission) based on this principle the creation of new States in the framework of the former Republican borders, in Opinion No. 3 dated 11 January 1992.[17] In the case of the disintegration of the former SFRY, it viewed the uti possidetis principle as particularly important given the fact that Paras. 2 and 4 of Art. 5 of the SFRY Constitution had provided that the scope of the territories and borders of the former Republics could only be changed by their consent.[18] The essence of the uti possidetis principle is in its basic purpose, which is the respect for the preservation of the existing territorial borders at the moment of gaining independence. The application of the uti possidetis principle results in the fact that former administrative borders, in the Slovenian/Croatian case the former Republican border, become internationally protected borders.[19] International law and thereby also the uti possidetis principle have direct, no retroactive, effects on the new State.[20] It is applied for the State as it is at the moment of establishment. The uti possidetis principle "freezes" the territorial title; the clock stops, given that the hands are not turned back.[21] In the process of its recognition by the European Community and its member States, Slovenia had internationally pledged to follow the uti possidetis principle.[22] The uti possidetis principle does not have the character of a cogent (ius cogens) norm of international law and the affected States may always regulate by agreement the course of their State border in conformity with international and domestic law. If there is no such agreement, which is the case for Slovenia and Croatia, who have not yet agreed upon their State border, the principle of respect for the territorial status quo at the time of their gaining independence should be applied, which is reflected in the uti possidetis principle.[23] Considering such interpretation of TUL, the Constitutional Court will review the conformity of Art. 1 of the Agreement.

25. Since the Agreement is a treaty that has not yet become part of the domestic legal system of the Republic of Slovenia, the Constitutional Court applied the interpretative provisions of DKPMP.[24] This in Art. 31.1 determines that a treaty must be interpreted in good faith and that the expressions used in the treaty must be considered according to their usual meaning, in connection with the substance of the treaty and in the light of the subject and purpose of the treaty.[25] For the purpose of interpretation, in addition to the basic text, also the preamble, appendices, agreements and instruments made in connection with the entering into the treaty, whose interpretation is at issue, belong to the contents of the treaty (Art. 31.2). In conformity with the substance of the treaty, the subsequent agreement between the Parties must also be considered, which refers to the interpretation of the treaty or its application, including the relevant practice of the States and the relevant rules of international law that apply between the contracting States (Art. 31.3).

26. The disputed Art. 1 of the Agreement must be interpreted in the context of the preamble, from which follows the purpose of entering into the Agreement, and giving consideration to its substance as a whole. As already established, the purpose of the Agreement is in that the States enable and regulate the traffic of persons in the border area and improve the living conditions of the inhabitants at the border, including the fostering of economic cooperation in that area, which also the Government mentioned. Different from a treaty on the State border, which is permanently in the practice of States, Slovenia and Croatia are entering into this Agreement for a limited period of time. In reviewing the constitutionality of Art. 1 of the Agreement, what also must be considered is its Art. 59, which, as lex specialis, determines that Agreement provisions in no manner prejudice the determination and marking of the State border between the contracting Parties.[26] Considering the fact that it is included in Chapter X among the General Provisions, it refers to the Agreement as a whole, including the Appendices, and is legally relevant also for the subsequent practice of the contracting Parties in the framework of the Bodies That Are to Implement the Agreement (Arts. 54 and 55). An additional "safeguard" contained in the Agreement is the possibility of its temporary partial or whole suspension,[27] which may be implemented by each contracting Party and regarding which one contracting Party does not need the consent of the other Party.

It is enough that it informs the other of such through diplomatic channels (Art. 60.3).

27. The border area on land, according to the Agreement, which encompasses the settlements in Slovenia and Croatia included in Appendices A and B (Art. 1.1 of the Agreement), in fact is in accordance with TUL and, considering its interpretation as determined by the Constitutional Court, is not contrary to it.

28. The difference between the border area on land and the sea is in that the latter is, for the purpose of the Agreement, defined as a whole (Art. 1.3). The further particularity of the border area on the sea, in accordance with BHROPS, is in that it does not completely correspond in terms of space to the border area on land, but exceeds it south of it. This fact can serve as the basis for the assertion that Art. 1 of the Agreement does not prejudice the State border contrary to TUL. The Constitutional Court hereby establishes that the contracting Parties acted in such a manner concerning the sea area, pursuant to the Agreement, that it is used as a functional whole, which also follows from its substance and the intention of the contracting Parties.

Apart from the direct control on the sea,[28] which the States have already controlled in the framework of mutual relations, the contracting Parties are to perform and carry out the control of the arrivals and departures of persons, and of other activities necessary to implement the Agreement, from the areas under their jurisdiction in the (border) area on land or through the bodies that are to implement the Agreement (a tourist permit may be issued for crossing the border outside tourist zones, also for the border area on the sea - Art. 5.5; the Sea and Land Traffic in the Border Area - Arts. 25 to 40, in particular Art. 26 and the Border Economic Cooperation - Arts. 35 to 41). Such a manner of treaty practice, which concerns Slovenia and Croatia as successors to the former SFRY, is not the only example. The border sea traffic, which implicitly encompasses also the border area on the sea, had been regulated by the Udine Agreement of 1962, i.e. still prior to entering into the Treaty of Osim (Official Gazette SFRY, IT, No. 1/77; the Act on the Notification of the Succession to the Agreements of the Former Yugoslavia with the Republic of Italy, Official Gazette RS, No. 40/92, IT, No. 11/92), which determined the sea border between Italy and the former SFRY. Art. 2 of this Agreement provided for all the persons permanently residing in those border areas determined in it the right to the facilities envisaged by the Agreement, concerning sea and land traffic. Reviewing the question whether the border area as a whole on the sea prejudices the sea border between Slovenia and Croatia, the Constitutional Court has also considered Slovenia's practice after the signing of the Agreement. Pursuant to the Ratification Act, Slovenia became a contracting Party to the trilateral Memorandum of Understanding between the Government of the Republic of Slovenia, the Government of the Republic of Croatia and the Government of the Italian Republic on the Establishment of a Common Routing System and Traffic Separation Scheme in the North Part of the North Adriatic (Official Gazette RS, No. 96/2000, IT, No. 27/2000).

This agreement concerns a special type of agreement which, according to its character as the Agreement at issue, belongs to territorial systems[29] and which, due to the safety concerns of routing, introduces a traffic separation scheme in the areas under the sovereignty of all three contracting Parties, also irrespective of the fact that the sea border between Slovenia and Croatia has not yet been determined. The international-law basis for introducing the schemata of separate traffic is found in Art. 22 of the UN Convention on the International Law of the Sea (the Act on the Ratification of the UN Convention on the International Law of the Sea, Official Gazette SFRY, IT, No. 1/86; the Act on the Succession to the UN Convention on the International Law of the Sea, Official Gazette RS, No. 79/94, IT, No. 22/94 - MKZNPMP), i.e. in the provision relating to the system of the territorial sea (Second Part, the Territorial Sea and the Outer Zone). The Constitutional Court opines that also Art. 1.4 of the Agreement, which, for reason of sea fishing, limits the border area on the sea to the territorial seas of each contracting Party, must be understood in a manner such that the term "territorial sea" is used in a generic way. What follows from it is the intention of the contracting Parties to exclude fishing in domestic sea waters from the fishing area on the sea, and not to delineate by such Agreement or to enforce a system of the territorial sea of each of them. Furthermore, BHRMR leads to such a conclusion, in which, in Art. 1, Croatia limited the Slovenian fishermen's right to fish to certain parts of its territorial sea.

29. In reviewing the Agreement, the Constitutional Court takes into consideration also the circumstance that for the ratification of a (future) treaty on the State border, the same procedure is prescribed as for the ratification of BHROPS (Art. 86 of the Constitution). TUL and the Constitution do not prohibit the conclusion of treaties that would regulate border issues. The challenged Agreement is a treaty entered into by States and as such could also contain provisions on the State borders. Such would not be contrary to TUL and the Constitution provided that it remains within the framework of Art. 4 of the Constitution[30] and is entered into and ratified in conformity with ZZZ.

30. The question whether the implementation of the Agreement will in practice in fact result in the determination of the borderline in certain parts of the land border, although only for the purpose of implementing the Agreement,[31] or whether such enforcement of actual authority might worsen the position of Slovenia in possible subsequent negotiations, is not a constitutional but a political matter that must be answered by the National Assembly when deciding on the ratification of the Agreement.

31. Accordingly, the Constitutional Court hereby finds that Art. 1 of the Agreement does not prejudice the State border with Croatia, and is not contrary to Sect. II of TUL.

B. - IV.

IX. The Review of the Conformity of Art. 1 of the Agreement with Art. 2 of the Constitution

32. The question of the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution, i.e. with the principles of a State governed by the rule of law, has also been raised. It concerns the question whether its provisions are precise, clear and unambiguous enough so that they may be directly applied, in particular in that part referring to the bodies competent for the implementation of the individual Agreement provisions and referring to the legal position (rights and obligations) of the population living near the border. These questions refer in particular to the implementation of the Agreement in those areas where the course of the border is disputed, since the border has not been established or determined in the field. This question is also connected with Art. 8 of the Constitution, according to which ratified and published treaties are applied directly. By ratification and publication a treaty becomes part of the domestic law. Thus, the Constitutional Court in Opinion No. Rm- 1/97, in Section VII, stated that: "A competent State body may not approve any such commitment of the Republic of Slovenia under international law as would be in disagreement with the Constitution. A commitment under international law would be in disagreement with the Constitution if, by the coming into force of the international agreement, it created directly applied unconstitutional norms in domestic law, or if it bound the State to adopt any such instrument of domestic law as would be in disagreement with the Constitution."

33. In a similar manner, the review of the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution cannot be carried out in isolation, but only in connection with other provisions and the Agreement's preamble. Thus, it is necessary to answer the question whether the Agreement provisions are, with regard to the subject and purpose of the Agreement, clear, understandable and unambiguous, and whether they can be applied without any special interpretation by the bodies competent for their implementation. The Agreement is not an agreement on the determination of the State border, but an agreement on border cooperation. Therefore, it cannot regulate such questions as may remain open between the States, which thus cannot be the subject of this Agreement. Its purpose is also not the regulation of such questions. The analysis of the Agreement demonstrates that its provisions correspond to the said criteria that, giving consideration to its purpose and subject, they are in conformity with Art. 2 of the Constitution.

34. Since the State border between Slovenia and Croatia has not been established and determined by a treaty, in practice the question might be raised which contracting Party is competent for implementing the Agreement in the disputed area. As the Agreement does not regulate the question of the border between the contracting Parties, it is fully correct that it does not directly answer such question. If it did answer such, it would also regulate in this part the question of the State border, which is not the purpose and subject of its regulation. To resolve such questions, the Agreement envisages a special procedure determined in Art. 54. The contracting Parties will, in accordance with Art. 54 of the Agreement, submit all open questions (including also the question of the competence for implementing the Agreement in the disputed areas) to be resolved to the Permanent Mixed Commission, which is competent to consider and resolve questions connected with the interpretation and application of the Agreement. The Permanent Mixed Commission adopts resolutions unanimously. Such resolutions enter into force when approved by the Governments of the contracting Parties (Art. 54.6). The Agreement thus regulates the manner of resolving questions in connection with its implementation. In case of disagreement, the Permanent Mixed Commission and consequently the Governments of both contracting Parties determine, by consent, the competent body for the implementation of the Agreement. Such decisions do not interfere with the substance of the Agreement (Art. 59) and have legal validity only with regard to this Agreement.

35. Such a manner of determining the implementation of the Agreement might also lead to the question of whether the implementation of Art. 1 of the Agreement will worsen the possible position of Slovenia in the negotiations with Croatia.

However, in reviewing the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution, it is not possible to conclude that in implementing the Agreement the Slovenian part of the Permanent Mixed Commission and the Government will make detrimental decisions for Slovenia. Such concerns certainly might exist, however, they do not present a question of constitutionality (conformity with Art. 2 of the Constitution).

They can only pose a question of trust in the executive branch of government and a political risk to be evaluated by the National Assembly as the legislature. Therefore, this question is not a question of constitutional review that falls within the jurisdiction of the Constitutional Court.

36. Accordingly, the Constitutional Court establishes that Art. 1 of the Agreement is not contrary to Art. 2 of the Constitution.

C.

37. The Constitutional Court issued this opinion on the basis of Art. 70 of ZUstS and Art. 52.6 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, No. 49/98), composed of: Franc Testen, President, and Judges: Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Škrk, Dr. Lojze Ude and Dr. Dragica Wedam-Lukić. The decision was reached by six votes against three. Judges Čebulj, Janko and Testen voted against. Judges Škrk, Wedam-Lukić, Ribičič and Ude wrote their concurring opinions, and Judges Čebulj and Testen their dissenting opinions.


President
Franc Testen


Opombe:
[1] In the words of M. Pogačnik, it is impossible, also according to the rules of the interpretation of treaties, to conclude that the Agreement would prejudice the border and have detrimental consequences for Slovenia. About that see also G. Bohte, Mednarodnopravna razlaga sporazuma o obmejnem prometu in sodelovanju s Hrvaško (The International-Law Interpretation of the Agreement on Border Traffic and Cooperation with Croatia), Pravna praksa, No. 10/2000, pp. 4-7.
[2] UN Conference on the Succession of States in Respect of Treaties, 1977 session and resumed session 1978, Vienna, 4 April - 6 May 1977 and 31 July - 23 August 1978, Official Records, Volume III, Documents of the Conference, UN, New York, 1979, pp. 31-36.
[3] The International Court of Justice in the Hague defined the 1997 Treaty between Hungary and the former Czechoslovakia on the Gabcikovo-Nagymaros Project on the Danube as a territorial treaty. Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports, 1997.
[4] 62.2.a of the Vienna Convention on the Law of Treaties, Official Gazette SFRY, IT, 30/72, the Act on the Notification of Succession, Official Gazette RS, No. 35/92, IT, No. 9/92 - hereinafter DKPMP.
[5] Official Gazette RS, IT, No. 1/80, The Act on the Notification of Succession, Official Gazette RS, No. 35/92, IT, No. 9/92.
[6] The Interstate Court ascribed Art. 12 the character of a rule of international customary law. The Gabcikovo-Nagymaros Project, ICJ Reports, op. cit., p. 123.
[7] In the framework of western European legal systems, such powers exist also in France and Spain. For a more comprehensive comparative view, see Opinion No. Rm-1/97 and n. 6.
[8] The Europe Agreement was published in the Official Gazette RS, No. 44/97, IT, No. 13/97. It took effect on 1 February 1999. [9] Sporazum između FNRJ i Republike Italije za regulisanje prometa lica, kao i kopnenog in pomorskog prevoza i saobračaja između pograničnih područja (Official Gazette FLRY, Nos. 3/64 and No. 10/86, The Act on the Notification of Succession to the Agreements Entered Into by the Former Yugoslavia with the Republic of Italy, Official Gazette RS, No. 40/92, IT, No. 11/92).
[10] The Paris Peace Treaty, the Ministry of Foreign Affairs, Ljubljana, 1997.
[11] United Nations Treaty Series, Vol. 235 (1956).
[12] Art. 1 of the original Agreement (1962) combined the municipalities, stated in the Appendices, with the width of a 10 km-zone, whereas the amended Agreement of 1982 in determining the areas for which it was to be applied contained only the list of the municipalities stated in both Appendices (Art. 1 and Appendices A and B).
[13] The state of possession concerning the Spanish administrative divisions in South America in 1810 and in Central America in 1821. I Brownlie, The Rule of Law in International Affairs, 1998 Kluwer Law International, p. 55.
[14] Ibid., p. 58.
[15] This principle is not a special rule referring only to a specific system of international law. It is a general principle, which is logically connected with the phenomenon of gaining independence wherever it appears. Its clear purpose is to prevent the stability and independence of new States from being threatened by fratricidal combats triggered by the change of the borders after the withdrawal of the administrative authorities.
Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, ICJ Reports, p. 20. [16] Case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Decision of 14 February 1985, RIAA, Vol. XIX, UN 1990; Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, ICJ Reports 1982; Case concerning the Territorial Dispute (Libyan Arab Jamahirya/Chad), Judgment of 3 February 1994; Affaire de la delimitation de la frontiere maritime entre la Guinee-Bissau et le Senegal, Sentence du 31 Juillet 1989, RIAA, Vol. XX, UN, 1994; Case concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, ICJ Reports 1991; Argentina-Chili: Beagle Channel Arbitration, International Legal Materials (ILM), Vol. XVII, No. 3, May 1978; Land, Island and Maritime Frontier Dispute (El Salvador, Honduras, Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports 1992.
[17] ILM, No. 6, 1992, pp. 1499-1500.
[18] Ibid.
[19] Ibid., p. 1500.
[20] Frontier Dispute, op. cit., p. 30.
[21] Ibid. The matter concerns the "photograph" of the then territorial position.
[22] The Arbitration Commission of the Conference on Yugoslavia, Opinion No. 7 on the international recognition of the Republic of Slovenia by the European Community and its member States dated 11 January 1992, ILM, No. 6, 1992, op. cit., p. 1515. The Commission inter alia established that the borders defined in Art. 2 of TUL on 25 June 1991 were unchanged concerning the existing borders and that the Republic of Slovenia emphasized that it did no have territorial disputes with neighboring countries or with the neighboring Republic of Croatia.
[23] What is at issue here is the respect for the principle of the inviolability of borders encompassed in the Declaration of the Principles of International Law on the Friendly Relations and Cooperation between States in Conformity with the Charter of the United Nations/Resolution of the General Assembly 2625 (XXV) 7 and the Helsinki concluding documents of CSCE (now OSCE) of 1975. Opinion No. 3, op. cit., p. 1500.
[24] Art. 31, the General Rule of Interpretation, Art. 32, The Auxiliary Methods of Interpretation, and Art. 33, the Interpretation of Treaties in Two or Several Authentic Texts.
[25] Paras. 1 and 2. The principle of good faith, grammatical, intention-based or teleological interpretations are equally important. Due to legal certainty and in order to avoid the too broad freedom of contracting Parties with intention-based interpretation, the international-law case law and the doctrine emphasize in particular the grammatical interpretation of treaties. UN Conference on the Law of Treaties, Vienna, 26 March - 24 May 1968 and 9 April - 22 May 1969, Official Records, Document of the Conference, pp. 38-42. In the case of grammatical interpretation, expressions must be interpreted according to their usual meaning, however, they are given special meaning if it is established that the contracting Parties have decided so (Art. 31.4).
[26] A similar provision is contained in Art. 14.4 of the Treaty between the Republic of Slovenia and the Republic of Croatia on Sea Fishing (Official Gazette RS, No. 9/96, IT, No. 3/96 - hereinafter BHRMR).
[27] The exception is Art. 57, which provides that the contracting Parties are always and without any formality obliged to accept a person who enters into the territory of the other contracting Party on the basis of the Agreement.
[28] Thus in Paras. 1 and 3 of Art. 47, which read as follows: "1. With the intention to ensure uninterrupted continuation of cooperation and development in the field of border sea fishing, the contracting Parties will mutually make possible fishing on the territory of its border area on the sea, in agreement with Art. 1.4, also for those fishermen who permanently reside or have their company's main office in the border area of the other contracting Party. 3. The fishermen who fish in the neighboring border area must comply with the regulations of the contracting Party that refer to fishing in that area." In a similar manner also Art. 49: "The contracting Parties shall determine the number of fishing boats according to the principle of reciprocity... Such number of boats may daily fish in the border area on the sea of the other contracting Party provided that they are registered in the ports in the border area of the contracting Party." In particular also Art. 58.1: "1. Given the provisions of this Agreement, all effective legal regulations of the contracting Parties are applied."
[29] Art. 12.2 of DK on the succession of States concerning treaties, which contains the so-called "objective systems". This deals with "territorial treaties" having effects on third States. The UN Conference on the Succession of States in Respect of Treaties, op. cit., pp. 34-37.
[30] Slovenia is a territorially unified and indivisible State.
[31] Art.1.1 provides that, in the framework of border traffic, by using border permits the border may be crossed through the border crossings intended for border traffic, which are determined in Appendix C, if the Agreement does not provide otherwise.

 

The Concurring Opinion of Judge Dr. Škrk 

1. I have voted in this case in favor of both paragraphs of the disposition and also fully agree with the reasoning of the Constitutional Court. However, in the course of the discussion, those judges who have voted against the majority opinion raised certain questions that, in my opinion, deserve an additional explanation which would not exceed the subject of the opinion and the substance of the Court's review.

2. The first question refers to the argument that the Constitutional Court did not apply the same criteria of review as in Rm-1/97 (the review of Subsections 7b and 7c of Art. 45 and Appendix XIII of the Europe Agreement, in conjunction with Art. 64.2 of ESP, with the Constitution). It allegedly failed to review, following the principle of linking issues pursuant to Art. 30 of ZUstS, the conformity of Art. 54 of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation (hereinafter the Agreement) with the Constitution. The review of that article was not suggested. It is true that, in case Rm-1/97, the Constitutional Court had very precisely discussed all the legal aspects in connection with its jurisdiction of the preventive review of the constitutionality of treaties, including the doctrine of applying, also in such proceedings, the linking-issues principle pursuant to ZUstS if the statutory conditions are fulfilled.

However, in case Rm-1/97, which until the Agreement at issue had been the only case of the preventive review of treaties in the Constitutional Court's practice, the Court adopted a doctrine which was not implemented in practice. In Paragraph 22 of the reasoning of Rm-1/97, the Court inter alia wrote: "In the proceedings for the review of the constitutionality of a law or regulation, the Constitutional Court reviews the conformity of those provisions of the law or regulation which are claimed to be non-conforming by a petitioner according to Art. 24 of ZUstS, or a proposer according to Art. 23 of ZUstS. In this connection, the Constitutional Court may not ex officio extend its review of constitutionality to provisions which are not challenged, unless it is allowed to do so by the provision of Article 30 of ZUstS.

This empowers the Constitutional Court to also review the constitutionality and legality of other provisions of this or some other law, regulation or general act issued for the exercising of public authority, whose constitutionality or legality have not been challenged, if such provisions are mutually connected or if this is absolutely necessary to resolve the case. In the case of issuing an opinion, no reasons exist for taking another position.[1] The Constitutional Court reviews only those treaty provisions which are claimed by the proposer to be controversial, and reviews other provisions only if the conditions specified in Art. 30, in conjunction with Art. 49, of ZUstS, are fulfilled." In Rm-1/97, the Constitutional Court had remained within the framework of the review as suggested by the proposers. The Constitutional Court acted similarly in the case at issue, and reviewed also the challenged Art. 1 of the Agreement with Art. 2 of the Constitution, since the latter provision had also been mentioned by the proposers, which also follows from Paragraph 17 of the reasoning.

3. Otherwise I opine that Art. 54 of the Agreement, in Chapter VIII, entitled "The Authorities to Implement the Agreement," which deals with the establishment of the Permanent Mixed Commission and its tasks, does not have such legal character so as to be directly connected with the basic question, i.e. whether Art. 1 of the Agreement (the determination of border areas) is in conformity with TUL, and whether this prejudices the border with Croatia. Art. 54 of the Agreement reads as follows: "

1. With the intention to develop the border traffic and the correct application of this Agreement, a Permanent Mixed Commission is to be established. The Commission consists of the delegations of the contracting Parties. Each delegation may have up to six members, and each member may have their own deputy.

2. The manner of work of the Permanent Mixed Commission is determined by its rules of procedure. The Permanent Mixed Commission will adopt the rules of procedure at its first session.

3. The Permanent Mixed Commission is to consider all questions connected with the interpretation and application of this Agreement.

4. The Permanent Mixed Commission also has the right to approve the issuance of a border permit and agricultural entry permit to persons who do not fulfill the conditions determined in this Agreement.

5. Resolutions of the Permanent Mixed Commission are adopted by the consent of both delegations.

6. Resolutions of the Permanent Mixed Commission take effect when approved by the Governments of the contracting Parties. This does not apply to the resolutions which contain proposals to amend or supplement the Agreement.

7. The Permanent Mixed Commission meets in a regular session once a year, alternating between the contracting Parties.

Furthermore, at the request of one contracting Party, extraordinary sessions may also be called. The contracting Parties agree on the place and time of the session.

8. The presidents of the delegations may by consent propose to the competent authorities that they meet and discuss specific questions as regards the application of this Agreement. The provision of Para. 5 of this article applies mutatis mutandis also to the resolutions of such a session.

9. The competent authorities are to inform the Permanent Mixed Commission of the questions discussed and the results reached.

10. To adjust the interests in certain areas encompassed by this Agreement, the Permanent Mixed Commission may establish specialized working bodies composed of members of each contracting Party. Such working bodies suggest to the Commission the adoption of resolutions in the areas for which they have been established.

11. Each contracting Party covers the expenses of the members of the Commission whom it has appointed, including the expenses of the experts it engages. Other expenses in connection with the activities of the Commission are proportionally covered by both contracting Parties unless otherwise agreed upon." 4. This article has a complete procedural and institutional character. For this reason, I do not see any direct connection with the basic purpose of the review. In Rm-1/97, the principle was established, which has also been adopted in the present decision, that preventive constitutional review is intended to prevent the State from assuming an unconstitutional international obligation at the moment of the ratification of a treaty. In my opinion, such a test with respect to Art. 54 of the Agreement cannot be carried out in view of its procedural and institutional character (the establishment of the Permanent Mixed Commission and its tasks) and its corresponding substance. What is unconstitutional in the case of this Agreement at the moment of its ratification, if the National Assembly ratifies it? Merely the suspicion that in implementing the Agreement the competent State authorities will not always act completely in agreement with their mandate pursuant to the Constitution and statute and, thereby, perhaps prejudice the future State border, in my view, exceeds the framework of constitutional review. In reviewing the challenged Art. 1 of the Agreement, the Constitutional Court reviewed, in Paragraph 26 of the reasoning of the Opinion, also the "safeguard" in Art. 59, which provides that "the Agreement provisions in no manner prejudice the determination and marking of the State border between the contracting Parties". The Constitutional Court ascribed to this safeguarding clause the meaning of lex specialis regarding the Agreement as a whole, and inter alia wrote that "it is legally relevant also for the subsequent practice of the contracting Parties in the framework of the Authorities to Implement the Agreement (Arts. 54 and 55)". 5. In accordance with Art. 54 of the Agreement, the Permanent Mixed Commission is based on one of the previous models of border agreements, most probably on the Udine Agreement on the Border Traffic of Persons on Land and the Sea. In addition to the Udine Agreement, let me mention also the 1975 Osim Agreement on the Fostering of Econimic Cooperation, and the Commission for Water Economy Questions. Mixed commissions are also a well-established model for implementing border agreements with the Republic of Austria. The most established ones were determined in the 1954 and 1955 Agreements on the Drava and Mura Rivers. With the Republic of Hungary a mixed commission was established to oversee the implementation of the 1993 Minorities' Agreement.[2] The Diplomatic Commission for the border in the framework of the 1993 Agreement with Croatia on the Determination and Marking of the State Border is based on the model of a mixed commission. The powers and manner of work of practically all mixed commissions are grounded on the same pattern as in the case of the Permanent Mixed Commission according to this Agreement. They are permanent bodies, which are periodically in session and responsible for the implementation of the (border) Agreement, decides by consent, and whose resolutions are recorded in (joint) records that are co- signed by the co-presidents (usually the heads of the delegation of each contracting side). Such mixed commissions also adopt their own rules of procedure, or such is already envisaged in the agreement on border cooperation. Often, but not always, the records of the mixed commissions are subject to subsequent approval by the Government, as in the case of this Agreement.

The meaning of such approval is not to contract new obligations but to introduce additional supervision by the Governments of the activities of this Permanent Mixed Commission, or the subsequent approval of its resolutions on a higher level of domestic law.

Comparatively and historically speaking, in my opinion, the tasks and the envisaged activities of the Permanent Mixed Commission cannot be seen as violating Arts. 2 and 3 of the Constitution.


6. Moreover, I opine that the records of mixed commissions, in this case the resolutions of the Permanent Mixed Commission, cannot be ascribed the character of treaties unless the records provide otherwise or this follows from the determinable intention of both contracting Parties. Pursuant to DKPMP, the mere signing of the records, without a note that the signature entails the assumption of obligations, does not suffice for the assumption of contracted obligations (Art. 12, the Consent to Become a Contracting Party by Signing). In the first sentence of Art. 54.6 it is stated that the resolutions of the Permanent Mixed Commission take effect when approved by the Governments of the contracting Parties. I opine that this case concerns internal approval and not external confirmation having ratification effects (Art. 14 of DKPMP, the Consent to Become a Contracting Party by Ratification, Acceptance or Approval). In the second sentence of Paragraph 6, it is furthermore stated that such approval of the Government does not apply to resolutions which contain proposals to amend or supplement the Agreement. For their adoption a different procedure is needed, in my opinion the same as needed for entering into the basic agreement, i.e. ratification by the National Assembly.

7. With regard to the abovesaid in this concurring opinion, I do not see anything unconstitutional concerning the possible violation of Art. 3 of the Constitution, regarding the authority vested in the Government as regards the implementation of the Agreement. In accordance with Art. 65.1 of the Foreign Affairs Act (hereinafter ZZZ), the Government is authorized to implement treaties and, pursuant to Art. 63.3 of ZZZ in conjunction with Art. 153.2 of the Constitution, to reach implementing agreements which do not impose new obligations on Slovenia. Or, stated differently, given Art. 3.2 of the Constitution (the principle of the separation of powers), in the area of international relations with other States, the authority vested in the Government is also binding on the Constitutional Court.

8. Regarding the question of what belongs to the subject of review or consistency with TUL, the Constitutional Court acted in conformity with the Constitution, since it did not exceed the subject and framework of the Agreement. If it had acted otherwise (certain judges were in favor of such position) it would have interferred with the negotiating position of the State concerning the future course of the State border with Croatia on land and the sea. Such interference, in my opinion, exceeds the subject of preventive constitutional review. The body entrusted with preparing for and carrying out negotiations is the Government, and only the National Assembly is empowered to either accept or refuse the results of such negotiations (Art. 57 of ZZZ). The matter thus concerns the relation between executive and legislative power, and if the Constitutional Court interfered with such it would violate the principle of the separation of powers (Art. 3.2 of the Constitution).


Dr. Mirjam Škrk


Opombi:
[1] Rm-1/97, n. 20. The same position is taken in Spanish constitutional case law. See Luis Lopez Guerra, Alvaro Rodriguez Bereijo: Raport de la delegation Espagnole, Protection constitutionnelle et protection internationale des Droits de l'Homme: Concurrence ou complementarite, 9th Conference of European Constitutional Courts, Paris, May 1993, pp. 272-275. In the case of the request for the review of constitutionality of the Maastricht Treaty, the French President also had to supplement his request by specifying more precisely the Treaty provisions to which his request referred.
See L.Favoreu and L.Philip: Les grandes decisions du Conseil constitutionnel, 7eme edition, Sirey, Paris, 1993, p. 799.
[2] This is not a territorial treaty although both minorities live along the border.


 
The Dissenting Opinion of Judge Testen
 
1. There is No (Longer) a Rightful Proposer

During the proceedings before the Constitutional Court the National Assembly elections took place. Concerning who signed the request for review, it has long been impossible to assert that (at least) thirty deputies still support the request, which is a procedural requirement according to Art. 160.2 of the Constitution. I insisted that the Court interpret this procedural requirement strictly and thus reject the proposal. In addition to what follows from the proposers' assertions that the Agreement was not inconsistent with the Constitution, which thus creates impossible procedural situations, the matter also entails a procedure that leads to a serious disturbance in the interstate relations, for it prevents the ratification and coming into force of a validly concluded treaty. It might prove to be the case that no deputy (still) supports the proposal, or that the President of the Republic or the Government does not conclude that there is anything disputable in the treaty, yet it would be impossible to ratify it since the Constitutional Court must decide on a "proposal" for constitutional review that is no longer supported by any proposer enumeratively determined in the Constitution. No interest protected by Art. 160.2 of the Constitution would be affected if the Court required for the constitutional review of a treaty - and any resulting delay in ratification - that in such cases a proposal for such review is continuously supported by at least one third of the representative body.

In the proceedings on the issuance of this Opinion, the Constitutional Court exhaustively discussed this question.

Therein, it considered its case law, arguments in comparative law, attempted to resolve the question by analyzing the results of analogous proceedings at the expiry of the term of office of National Assembly deputies. Furthermore, it embarked in more detail on the question of how such or different position concerning this question affects other procedural stutus of the proposers, in particular the possibility that the request or proposal be altered or retracted, especially during the ongoing term of office, after the expiry of the term of office or following the deputies (non)re-election.. What prevailed was the position, in contrast to mine, that it is enough that the procedural requirement of a rightful proposer exists at the time the proposal is filed, not necessarily continuously through the proceedings before the Constitutional Court.

In accordance with the established case law of the Constitutional Court, having being outvoted by the majority as regards the existence of this procedural requirement, I had, as a judge, two options: (1) I could have voted against (any) decision based on the merits of the case, and not entered into any discussion of the well foundedness of the application; or (2) due to the fact that the majority opinion in any case obviated the procedural obstacle, I could have participated in deciding on the merits of the case although having previously insisted that the procedural requirements had not been met. The discussed procedural requirement was not directly connected with the substance of the controversy and also could not indirectly affect the criteria of the review, its scope and the effects of the meritorious decision reached. Therefore, upon weighing the standpoint of other judges whose opinion concerning the procedural requirement was different, I decided to set aside this procedural requirement and participate in the decision on the merits.

Since the Court in this case did not apply its previously established requirement that the prescribed procedural requirements must exist continuously through the proceedings and that the Court itself ensures such by virtue of its office, I opine that it is necessary to point to the consequences that logically follow from such position.[1] When an application is submitted, which requires a certain number of signatures in accordance with the Constitution or statute, it or its status may be altered (either changed, supplemented or withdrawn) only by all the signatories together. The withdrawal of one signature is no longer possible, the change in the status or the position of the signer does not affect the correctness of the application: an application is an "arrow shot" and cannot be stopped.

2. No Judicial Controversy Existed

I have had a problem with the question of whether the Court should consider the deputies' proposal at all also due to the fact that it was submitted by deputies who asserted that there was "nothing disputable in the disputed Agreement". In such a manner, in terms of judicial decision-making, a completely unnatural situation developed: adjudication is the deciding on a controversy, not just the confirmation that all participants in the proceedings are right. This fully applies also to constitutional-review proceedings, which in their basic elements are established as adversary proceedings (with certain elements of inquisitorial proceedings - i.e. the non-binding effect of the proposal on the Court, the possibility of extending the review according to the linking-issues principle). However, in the beginning I did not see any procedural obstacles in such illogicality that would prevent the decision-making: as correctly established in the majority decision, the Constitutional Court had already in the first such (Rm) decision [i.e. preventive review of treaties] dealt with a similar situation (although not in such an extensive way - see the separate opinion of Judge Ribičič, in particular Paragraph 2).

Moreover, it seemed that this illogicality was partially written into the Constitution: according to Art. 160.2, the Government can always be the proposer of preventive-review proceedings, which as a rule prepares treaties and proposes their ratification to the National Assembly. However, in the case of the Government the situation is slightly different. It is highly probable to expect that, despite its political decision to submit a treaty for ratification, the Government could ask itself whether a certain solution in the treaty, as a result of the negotiations, might not be in conformity with the Constitution.[2] In such a case it would present all its arguments to protect itself from being responsible for the submission of an unconstitutional treaty for ratification to the National Assembly.[3] The Constitutional Court will in such a case, as a rule, treat the procedural materials which address the Government's doubts concerning the constitutionality of the treaty, so that it will consider a certain disputed question although no real controversy exists. The case at issue is different also concerning the mentioned procedural requirement: the question was not submitted to the Court due to the proposers' doubts about the constitutionality of the Agreement, but only due to their wish to obtain the imprimatur constitutional-review and rebut the argument that the Agreement was unconstitutional, which was expressed by their parliamentary political opponents who did not support the ratification of the Agreement. The Constitutional Court was thus put in the position of deciding on a political controversy without there being any basic elements pointing to the existence of a judicial controversy. It cannot be overlooked that such a proposal entails a peculiar abuse of a procedural right.[4] At this point I realized that in the proceedings in which the Court treated only the procedural materials, which were able to be obtained only in such a manner, I could participate only in such a meritorious review that could remain within the logic chosen by the "proposers" and which would be limited finally to the confirmation that the Agreement was truly not vulnerable in the part attacked by the proposers' blank cartridges.[5] However, there was no need for such a finding.

I could not overlook this procedural obstacle, since it would essentially affect my choice of the criterion of review, its scope and the effects I would ascribe to the decision or the opinion reached in such proceedings. Therefore, for the mentioned procedural reasons, I voted against the decision reached.


Franc Testen


Opombe:
[1] In the discussion I foretold that despite my position that the procedural requirement was lacking, I would participate in the meritorious decision-making only if such decision on the merits also reflected the clear majority position concerning all the discussed issues. As regards the possibility of the withdrawal of such proposal, no majority opinion prevailed. What prevailed was the position that once the composition of the National Assembly changes, the option to withdraw the proposal is enjoyed by only at least 61 deputies (this demonstrates the fact that the proposal is not supported by the constitutionally required number of thirty deputies). I opposed such interpretation since it enables the proposal to be "withdrawn" by those who did not file it, and at the same time prevents those who in fact signed the proposal from withdrawing it.
[2] It is necessary to bear in mind that in the selection of solutions in treaties the Government is restricted by other considerations than in the selection of solutions in bills: while in the first case it must (in addition to the framework of the Constitution) respect the negotiation requirements determined by at least another sovereign subject of international law, in the second case, in addition to the Constitution, it is restricted only by the requirement of a majority support in the parliament. Thus, in legislative debates it can be more flexible and from a greater distance avoid the edge of (un)constitutionality. Also, the risk that some statutory provision will appear to be unconstitutional is smaller than in case the same appears after the ratification of treaty provisions. The constitutional regulation which envisages a priori constitutional review only for treaties is based on this logic.
[3] It is true that also in such a case there is no real controversy and that the Court will issue a certain mandatory advisory opinion in such a case as well, which it does not issue otherwise. However, it has a constitutional basis, as a body specialized in the interpretation of the Constitution, to dismiss the Government's doubts. The position of thirty deputies and the rationale of the provision which gives them the possibility to a priori challenge constitutionally controversial treaty provisions is, however, completely different. It is a weapon of the opposition that opposes the ratification of a treaty. The procedural requirements that must be fulfilled by the three proposers determined in the Constitution must be reviewed separately and considering the role of each of them in the political system, in particular concerning the entering into, ratification and implementation of treaties.
[4] This assertion has a completely constitutional-procedural character: thus, in the framework of the constitutional review and also this separate opinion I do not treat the (political) question of why the deputies who asserted that the Agreement was unconstitutional did not (co-)sign the proposal and perhaps add their arguments to it.
[5] Thereby I do not assert that the decision reached remains only within this field. In particular, this cannot be asserted for the separate opinions of Judges Čebulj and Janko.


 

The Concurring Opinion of Judge Dr. Ude 


1. I have voted for the opinion that Art. 1 of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation is not inconsistent with Sect. II of the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia, and with Art. 2 of the Constitution. I opine that it is also necessary to point out certain aspects of reviewing this Agreement, in particular the starting-point that, irrespective of an opinion of the Constitutional Court, the legislature is the body which must review whether the Agreement contains provisions which might be important, together with other legal facts and activities of both the States and their bodies, for the final determination or, more precisely, establishment of the border between the States.

2. In Paragraph 29 of the reasoning of this Opinion, the Constitutional Court held that in reviewing the Agreement it considered also the condition that for the ratification of a (future) treaty on the State border the same procedure is prescribed as for the ratification of the disputed Agreement. It also held that the challenged Agreement is a treaty entered into by two States and could, as such, also contain provisions on the State border. It furthermore held that this would not in itself be contrary to the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia and the Constitution, provided that it remains within the framework of Art. 4 of the Constitution and is entered into and ratified in conformity with the Foreign Affairs Act. That position, with which I agree, should be, in my opinion, further explained. The essence of the position is that the Agreement could also contain the determination of the border, since it is ratified by the National Assembly. If that be the case, the issue is raised why the Constitutional Court dealt at all with the question of whether the disputed Agreement contains provisions prejudicing the border. It dealt with this question because it had to review whether the Agreement was in conformity with Art. 4 of the Constitution, which also prohibits the National Assembly from encroaching on the territorial integrity and indivisibility of the State in the determination of the border. The question whether the disputed Agreement is contrary to the Constitution and the Basic Constitutional Charter cannot be isolated from the question of whether individual Agreement provisions prejudice the future determination of the border.

3. Concerning the position I have explained in Paragraph 2 of this separate opinion, I must emphasize that the Constitutional Court's decision on the conformity of the disputed Agreement with the Constitution and the Basic Constitutional Charter has binding effects, while the reasoning concerning whether in a certain manner the individual provisions of the disputed Agreement "prejudice the border" do not have such effects. For the ratification of the Agreement, the National Assembly will still have to evaluate whether the Agreement contains provisions which may be subsequently used as proof for asserting that either of the two States has exercised sovereignty over part of the disputed territory (in particular on the sea). There is no doubt that the future determination of the border, if not determined or established by the consent of both the States, will depend also on the positions of both the States, as contained in their agreements, and their activities and the activities of their bodies that could be perceived as exercising sovereignty in a certain territory.

4. One of the questions the Constitutional Court addressed during the discussion was whether Art. 54 of the Agreement, envisaging the establishment of a Permanent Mixed Commission with the intention to develop traffic and correctly apply the Agreement, was inconsistent with the Constitution and the Basic Constitutional Charter. I opine that it follows from the definition of the powers of the Permanent Mixed Commission that it has been granted only implementing powers. Such powers are certainly reasonable and even necessary for the implementation of the Agreement. However, I believe that it is unacceptable to derive from the position that such commission could exceed its powers and that the Government of the Republic of Slovenia could approve such excessive resolutions. The Constitutional Court often deals with the question of whether certain State bodies exceed their powers and authority. Numerous Constitutional Court decisions discuss the question of legality or the binding effect of the Constitution and statutes on public administration bodies. On finding that a certain public administration body has exceeded its authority, it would certainly not be required that such body be dissolved. All bodies must act within the framework of their powers; in the area of issuing general regulations it is the Constitutional Court that establishes whether all other bodies remain within their constitutional and statutory powers.

The danger exists in the field of international law that by exceeding their authority State bodies would bind the State despite internal regulations. For this particular reason, the work of State representatives in interstate commissions is very responsible, although such commissions have no authority to issue decisions and thereby bind the States. Thus, Art. 54 of the Agreement contains, in Section VI, the provision that Permanent Mixed Commission resolutions take effect when approved by the Governments of the contracting Parties. Accordingly, I opine that the mere definition of the Permanent Mixed Commission and its powers cannot be contrary to the Constitution.

5. Finally, I would like to emphasize that the opinion of the Constitutional Court on the conformity of the Agreement with the Constitution and the Basic Constitutional Charter does not relieve the legislature of the obligation to review the disputed Agreement from the political point of view, i.e. from the view whether, and to which extent, it could be detrimental to our State in subsequent determination or establishment of the disputed border.


Dr. Lojze Ude


The Concurring Opinion of Judge Dr. Wedam - Lukić 


1. I have voted for the disposition of the Opinion on the Conformity with the Constitution of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation. Furthermore, I entirely agree with the reasoning thereof. However, in my separate opinion, I would like to present my position concerning certain issues raised both during the discussion and in some separate opinions.

2. First, I would like to explain my position as regards the procedural requirements. As Judge Testen already mentioned in his dissenting opinion, the Constitutional Court dealt with that question extensively. In this respect I also had a problem with the idea that the rightful proposers may be deputies who are no longer deputies. However, in search of suitable solutions the Constitutional Court did not find any to be persuasive enough to receive the necessary support. Thus, the position prevailed that it is enough that the procedural requirement concerning the rightful proposer be fulfilled at the submission of the proposal. I was also concerned with the fact that the deputies participating in these proceedings as rightful proposers had not opposed the substance of the Agreement (see also Judge Ribičič's concurring and Judge Testen's dissenting opinions). Finally, I was persuaded by the position expressed in the discussion that also deputies who themselves did not oppose the constitutionality of the proposed treaty cannot be denied the right to request an opinion of the Constitutional Court, and thereby avoid criticism for their vote in favor of an unconstitutional treaty. I still find the doubts of Judge Ribičič (in his concurring opinion) and Judge Testen (in his dissenting opinion) crucial on the appropriateness of such a solution and agree with their opinion that it would be a much more appropriate basis for the Constitutional Court's adjudication if the Agreement was "challenged" by those who in fact doubted its constitutionality. I am afraid, however, that, concerning Art. 160.2 of the Constitution and the practically indentical Art. 70 of ZUstS, which do not draw any difference between the individual proposers, this problem cannot be resolved by interpretation.

Therefore, despite my doubts on the fulfillment of the mentioned procedural requirement, I have decided to participate in the decision on the merits.

3. In such a situation the Constitutional Court was undoubtedly put in an unusual position, since it had to search by itself for reasons for the possible unconstitutionality of the Agreement.

The question might be raised whether those who doubted the constitutionality of the Agreement but did not propose its review are more responsible for that. Nevertheless, I opine that the Constitutional Court succeeded in defining the disputed question and answering it appropriately as well. It is certain that it could address the question of "prejudicing the border" only from the view of whether the Agreement was, according to its substance at ratification, in conformity with the Constitution, and not from the view of the impact of its future implementation on the negotiating position of our State in the final determination of the land and sea borders with the Republic of Croatia in the framework of bilateral negotiations or before international institutions. This will have to be addressed by the National Assembly when deciding on the ratification of the Agreement, for which it takes whole responsibility. In this part I join Judge Ude's separate opinion and, regarding the subject and scope of the review, entirely support Judge Škrk's position in her concurring opinion.


Dr. Dragica Wedam - Lukić


The Concurring Opinion of Judge Dr. Ribičič 

1. I have voted for the disposition of the Opinion on the conformity of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation with the Basic Constitutional Charter and the Constitution. I do not dispute the grounds for the disposition. I have acted in such a manner despite the fact that, in my opinion, the Constitutional Court should not have recognized the position of rightful proposers to the deputies who signed the proposal since their application is an inappropriate basis for deciding on the constitutionality of the Agreement.

2. I agree with Paragraph 14 of the reasoning, which reads as follows: "Despite having a different name such opinion is a decision of the Constitutional Court, which has essentially the same effects as other decisions of the Constitutional Court." But such a position implies that as a basis for deciding the Constitutional Court must be submitted a proposal that asserts the unconstitutionality of a treaty, as applies in the case of the subsequent constitutional review of legal acts. In my opinion the President of the Republic, the Government, or one third of the deputies may request the opinion of the Constitutional Court, which is binding on the National Assembly, when they opine that the treaty in the process of ratification is inconsistent with the Constitution. Thus, a rightful proposer must argue before the Constitutional Court that the treaty or a part of it is inconsistent with the Constitution and provide appropriate arguments to support such a position, and not vice versa. The Government proposal in case Rm-1/97 was also disputable for this reason, however, for the recognition of the status of rightful proposer at that time there existed certain special reasons that I do not find in this case. It was the Government that proposed the ratification of the treaty since otherwise it could not have requested an opinion from the Constitutional Court; one of the Government parties asserted the unconstitutionality of the treaty, which meant that inside the Government there existed doubts concerning the treaty's conformity with the Constitution.

In this case, the proposing deputies did not assert the unconstitutionality of the border Agreement. These deputies did not question the constitutionality of this Agreement at all.

Moreover, on the two explicit requests of the Constitutional Court to state which provisions of the Constitution the Agreement violated, and for what reasons, they replied (on 2 March 2000) that "for us the substance of the Agreement is not disputable - however, for those who do oppose, only Art. 1 is disputable," and (on 5 April 2000) that, according to those who opposed the ratification of the Agreement, Art. 1 was inconsistent with Sect. II of the Basic Constitutional Charter. They added that: "We, the proposers, are not of the same opinion." Evidently the proposers do not challenge before the Constitutional Court the constitutionality of the Agreement but only wish for the Constitutional Court to issue a politically-motivated advisory opinion to confirm the correctness of their own position that the Agreement is in conformity with the Basic Constitutional Charter and the Constitution. In such a manner they would like to misuse the authority of the Constitutional Court as if it were a consultative body at their disposal to increase their political chances in their efforts to have the Agreement ratified.

3. The record of the vote on whether the National Assembly should immediately vote on the ratification of the Agreement, or whether it should postpone it (so that the disputed issues concerning its conformity with the Constitution might be studied), demonstrates that on 11 December 1999 at 4.27 p.m. all the present signatories voted for an immediate vote on the ratification and that none of them supported the proposal for the postponement of the voting.

Therefore, it follows that the signatories consider the Agreement to be in conformity with the Constitution. They did not request an opinion from the Constitutional Court on the ground that it was inconsistent with the Constitution, or even question its constitutionality.

4. No deputy who in the previous debate had questioned the constitutionality of the Agreement joined the proposal of the signed thirty deputies. Thus, the deputies who had not doubted the constitutionality of the Agreement requested that the Constitutional Court issue an opinion on the constitutionality thereof, however, the deputies who had been convinced that it was inconsistent with the Constitutional did not request the same.

What a strange world| Accordingly, the Constitutional Court was provided a completely inappropriate basis for decision-making.

On the one hand, the supporters of the ratification of the Agreement intentionally unconvincingly presented, or rather simulated, the arguments of those who really opine that the Agreement is unconstitutional; on the other hand, by their proposal they prevent or at least limit the possibilities of other deputies to request an opinion of the Constitutional Court.

5. The Constitution grants one third of deputies, who in the National Assembly are a minority asserting the unconstitutionality of a treaty, the right to request an opinion of the Constitutional Court. Thus the request in this case would be less disputable if the composition of the signatories was at least "mixed", i.e. composed of both the supporters and the opponents of the ratification. However, such cooperation is unusual in the National Assembly. The practice established in the National Assembly is that the co-signatories of a certain proposal are only those who support it. Concerning such, according to a new interpretation of the Standing Orders of the National Assembly, adopted on 8 March 2001, the subsequent signing of the proposal of a statute is "only possible with the written consent of all the proposers of the statute".

6. It is interesting that after the subsequent election of the National Assembly no newly elected deputy thought it sensible and necessary to join the signatories of the request for an opinion of the Constitutional Court. Thus, the number of such decreased far below the prescribed minimum of one third of the deputies.

It was enough for the Constitutional Court that at the submission of the proposal at least one third of the deputies had signed it. The Court knowingly neglected the fact that at the time of making its decision many of those signatories were no longer deputies. Does this mean that the Court will proceed in the same manner in all future cases when, for various reasons (e.g. due to the withdrawal of a signature), the number of the proposing deputies falls below thirty?

7. These are the reasons why, in my opinion, the position in Paragraph 16 of the reasoning is erroneous. It namely asserts that the proposers' position concerning the constitutionality of a treaty is irrelevant to their status as proposers. Not only the application and its basis, but also the disposition, the reasoning and the effects of an opinion of the Constitutional Court would be essentially different if the Agreement had been challenged before the Constitutional Court by those deputies who supported the position asserting its unconstitutionality, and not by those who supported the as-soon-as-possible ratification. An opinion based on such weak foundations can in no manner relieve the National Assembly of responsibility in deciding on the ratification of the border Agreement.


Dr. Ciril Ribičič
 


The Dissenting Opinion of Judge Dr. Čebulj Joined by Judge Janko 


1. Why I have voted against?

1. I have voted against the majority decision in this case as the grounds for the opinion, which stated that Art. 1 of the Agreement between the Republic of Croatia and the Republic of Slovenia on Border Traffic and Cooperation (hereinafter the Agreement) was in conformity with the Constitution, did not persuade me. Neither did they persuade me with the substance or the method of the review. I am aware of the fact that the purpose of the Agreement is to improve the life and work of the people in the border territory. However, in my opinion, the Agreement will not contribute to that in the areas where there is no consent regarding the course of the border. Moreover, in the part relating to the sea, where the border has never been determined, the usefulness of entering into it can be very questionable from the view of the national interests of the Republic of Slovenia (if we seriously deal with an exit to the open sea). Neither the first nor the second can be in itself a basis for constitutional review. My vote "against" is thus based on the conviction (I will state the reasons thereof in the continuation, where I try to elaborate "my own" constitutional review) that such consequences might develop in particular due to the unconstitutional norms contained in the Agreement.

2. Let me immediately emphasize that, from the constitutional point of view, I do not raise the question of the possible so- called prejudicing of the course of the border, which is stated to be the most fundamental constitutional "sin" of the Agreement. I do not, however, completely understand the relation between Art. 59 of the Agreement, pursuant to which its provisions in no manner prejudice the determination and marking of the border, and the list of the settlements constituting the border area in the territories of the Republic of Slovenia and the Republic of Croatia, which is, as an appendix, a constitutive part of the Agreement. These settlements join together somewhere. And it is important to know where - along the entire land border| But even if this prejudices the border, it is an agreement reached (ratified) by the National Assembly. And this may determine the border, even prejudice it. To emphasize it: this may only be done by the National Assembly| It cannot be done by anyone else, and the National Assembly cannot grant this power to anyone. Not even the mixed commission, although its decisions must be confirmed by the Government. Precisely this is determined by the Agreement| Not only in the case of the land border, but also the sea border. And this is no longer a political issue or an issue of trust in the Permanent Mixed Commission and the Government.

It is a constitutional issue - the issue of the conformity of the Agreement with the principles of a State governed by the rule of law (Art. 2 of the Constitution) and, in particular, with the principle of the separation of powers (Art. 3 of the Constitution).

3. Therefore, I insisted throughout the proceedings before the Constitutional Court that the Constitutional Court must not consider Art. 1 of the Agreement apart from the other provisions, as this article would never be capable of living on its own. It will not be implemented independently of the other Agreement provisions. The connected consideration of Art. 1 and Art. 54 of the Agreement appears to be particularly important. In search of an answer to the question of the constitutionality of the first, in connection with Art. 54 of the Agreement I raised the issue of its conformity with Art. 2 and Art. 3.2 of the Constitution.

Furthermore, I suggested studying and answering the question whether and why Art. 59 of the Agreement will have the effect as ascribed if the sea border is decided (e.g. following the several years of implementation of the Agreement) by an international arbitrage or another institution.

4. Thus, I opine that the Constitutional Court should have (methodologically) applied, in the constitutional review of this case, the same criteria as it had applied in an opinion on the conformity of a treaty with the Constitution on the basis of the interpretation of the Constitutional Court Act provisions (hereinafter ZUstS), i.e. in case No. Rm-1/97 (the Opinion on the "Accession Agreement," dated 5 June 1997, Official Gazette RS, No. 40/97 and DecCC VI, 86). A preventive review of the constitutionality of treaties in the process of ratification (Art. 160.2 of the Constitution) has a preventive intention. Its purpose is to prevent the State from entering into a treaty whose implementation would insert unconstitutional norms[1] into the domestic law, or result in adopting unconstitutional legal acts. An obligation incurred by a treaty obligates the State to fulfill it. According to the Vienna Convention on the Law of Treaties (Official Gazette SFRY, No. 30/72 - hereinafter MDKPP), every effective treaty binds the member States, which must fulfill such in good faith (bona fide). The pacta sunt servanda principle is one of the basic principles of international treaty law.[2] Pursuant to Art. 27 of this Convention, an individual member cannot refer to their domestic law to justify its non- compliance with the treaty except when allowed in accordance with Art. 46 of this Convention. In this respect, in terms of constitutional law, the question of the fate of the Agreement on Slovenia joining the European Union is extraordinarily important.

5. When I address the application of the "same criteria" of review, I mean that part of the reasoning in Case No. Rm-1/97, which reads as follows (Paragraph 22 of the reasoning of the Opinion):
"22. According to Art. 162.1 of the Constitution, proceedings before the Constitutional Court are regulated by statute. Art. 70 of ZUstS repeats the first part of Art. 160.2 of the Constitution, which defines the jurisdiction of the Constitutional Court, and adds a rule according to which the Constitutional Court forms its opinion in camera. ZUstS does not contain any other explicit procedural provisions concerning the pronouncement of an opinion. This is why it is necessary, according to Art. 49 of ZUstS, concerning the procedure for pronouncing opinions, to apply on mutatis mutandis basis the provisions of Section IV of this Act, which regulates the proceedings and the reaching of decisions by the Constitutional Court regarding the review of the constitutionality and legality of laws, regulations and general acts issued for the exercising of public authority. In proceedings to review the constitutionality of a law or regulation, the Constitutional Court reviews the conformity of those provisions of the law or regulation which are claimed to be inconsistent with the Constitution by a petitioner under Art. 24 of ZUstS or a proposer under Art. 23 of ZUstS. In this connection, the Constitutional Court may not ex officio extend its review of constitutionality to provisions which are not being disputed, unless allowed to do so by Art. 30 of ZUstS. This empowers the Constitutional Court also to review the constitutionality and legality of other provisions of the same or some other law, regulation or general act issued for the exercising of public authority, whose constitutionality or legality have not been challenged, if such provisions are mutually connected or if this is absolutely necessary to resolve the case. In the case of pronouncing opinions, no reasons exist for holding another view.[3] The Constitutional Court reviews only those treaty provisions which are claimed by the petitioner to be controversial, and reviews other provisions provided the fulfillment of the conditions determined in Art. 30, in conjunction with Art. 49, of ZUstS."

6. The majority of the judges who voted for the opinion, from which I here dissent (i.e. in case No. Rm-1/00), did not entirely avoid these criteria. In the disposition of the opinion, they limited themselves only to finding the conformity of Art. 1 of the Agreement with Sect. II of TUL and Art. 2 of the Constitution, however, they did not limit themselves to the same in the reasoning. In the framework of the part of the reasoning entitled "IX. The Review of the Conformity of Art. 1 of the Agreement with Art. 2 of the Constitution," they wrote the following (Paragraph 33 of the reasoning):
"33. In a similar manner the review of the conformity of Art. 1 of the Agreement with Art. 2 of the Constitution cannot be carried out in isolation, but only in connection with other provisions and the Agreement's preamble. Thus, it is necessary to answer the question whether the Agreement provisions are, with regard to the subject and purpose of the Agreement, clear, understandable and unambiguous, and whether they can be applied without any special interpretation by the bodies competent for their implementation. The Agreement is not an agreement on the determination of the State border, but an agreement on border cooperation. Therefore, it cannot regulate such questions as may remain open between the States, which thus cannot be the subject of this Agreement. Its purpose is also not the regulation of such questions. The analysis of the Agreement demonstrates that its provisions correspond to the said criteria that, giving consideration to its purpose and subject, they are in conformity with Art. 2 of the Constitution."

7. I could not vote for such review of the question whether the "Agreement provisions are, with regard to the subject and purpose of the Agreement, clear, understandable and unambiguous, and whether they can be applied without any special interpretation by the bodies competent for their implementation". Irrespective of the fact that I am aware of the subject and purpose of the Agreement. The argument on which this finding is based for all the Agreement provisions is in the following sentence: "The analysis of the Agreement demonstrates that its provisions correspond to the said criteria that, giving consideration to its purpose and subject, they are in conformity with Art. 2 of the Constitution." All of them are thus allegedly clear, understandable and unambiguous, and can be applied without a special interpretation by the bodies competent for their implementation. Is this true? In the continuation of this decision, I am going to present my opposing arguments, which I introduced at the Constitutional Court sessions on this case. I was not given any answers to my arguments, except in the above cited sentence. The fact that I was not provided an answer is not important. Much more important is that the answer was not given to those for whom this opinion was intended.

II. Can a Constitutional Review Be Decided with a Positive Opinion?

8. Of course, in my opinion| At the beginning of this separate opinion, I wrote that I was going to elaborate my "own" constitutional review to substantiate my vote against the majority opinion. Such is a constitutional review based on my arguments, and applies the criteria (methods) the Constitutional Court had applied in Case No. Rm-1/97.

9. Art. 1 of the Agreement reads as follows:

"1. According to this Agreement, the border area on land encompasses: in the Republic of Slovenia the settlements determined in Appendix A, in the Republic of Croatia the settlements determined in Appendix B.

2. The changes in the areas of settlements and other administrative territorial divisions do not affect the extent of the border areas referred to in this Agreement.

3. According to this Agreement, the border area on the sea is the sea territory under the sovereignty of each contracting Party, lying north of the 45-degree parallel and the 10-minute northern latitude along the western coast of Istria measured from the external edge of the territorial sea of the Republic of Croatia, up to the point where this parallel touches the land of the western coast of Istria (Funtana Cape of Grgat).

4. The border area on the sea is for the area of border sea fishing limited to the territorial seas of each contracting Party in the framework of the border area on the sea determined in Para. 3 of this article."


10. Art. 54 of the Agreement envisages the establishment of a Permanent Mixed Commission intended to develop traffic and the correct application of the Agreement. According to Art. 54.3, the Permanent Mixed Commission deals with questions connected with the interpretation and application of the Agreement.

Pursuant to Para. 5, the resolutions of the Permanent Mixed Commission are adopted by the consent of both the delegations.

In accordance with Art. 54.6 of the Agreement, the resolutions of the Permanent Mixed Commission take effect when approved by the Governments of the contracting Parties. This, however, does not apply to proposals for amending the Agreement.

11. At sessions held on 10 and 11 January 1992 the Arbitration Commission of the Conference on Yugoslavia issued several opinions in connection with the right to self-determination and a change in the borders. Particularly important for this discussion are Opinions Nos. 3 and 7 (Međunarodna politika [International Politics], Nos. 995/91 and 1001/92).

12. In Opinion No. 3 the Arbitration Commission stated the principles according to which the problem of the borders was to be resolved in the creation of new States. It set three principles:

1. External borders will have to be respected in every case, etc.
2. The demarcation between Croatia and Serbia, or between the latter and BiH, or eventually between other independent neighboring States, may be changed only by mutual and free agreement.
3. If not agreed otherwise, the previous borders will be given the status of borders protected by international law. Such a conclusion is required by the principle respecting the territorial "status quo" and in particular the "uti possidetis iuris" principle. Although originally recognized in resolving the decolonization problem in America and Africa, these principles are today generally recognized by international courts (see the border dispute between Burkina Faso and Mali[4]). This principle can more easily be applied in the case of the former Yugoslav Republics, as Paras. 2 and 4 of Art. 5. of the SFRY Constitution determine that the scope of the territory and the borders of the Republics cannot be changed without their consent.

13. Opinion No. 7 contains an analysis and opinion on the fulfillment of the conditions for the international recognition of the Republic of Slovenia. Concerning the border with Croatia, the Arbitration Commission only stated that, following Slovenia's assertions, there existed no territorial dispute with Croatia.

14. The uti possidetis principle establishes the succession of borders which have been administratively determined. Regarding such borders, new States may agree differently and unanimously introduce territorial changes. In both cases, new demarcations are protected by international law (the Universal Charter of the United Nations, Chapter I, Art. 2/4 and the Declaration of the Principles of International Law on Friendly Relations, included in Resolution 2625 of the XXV UN General Assembly session, on 24 October 1970). The uti possidetis principle is interpreted as a principle which preserves the demarcations that existed in the colonial regimes and which refer to each colonial unit that was formed as a State. This principle contains the presumption that States created after decolonization will inherit the administrative borders existing at the time of the proclamation of independence. Uti possidetis decreases the probability of an armed conflict, however, this is not an ius cogens norm. It enables newly established States to change the borders, yet as per agreement. The uti possidetis iuris principle was established during the demarcation of sea borders in 1992 in connection with the determination of the sea border between Salvador and Honduras following Nicaragua's intervention.[5]

15. The fact is that the border between the Republic of Slovenia and the Republic of Croatia was determined by Sect. II of TUL.

Also, the fact is that, as regards the determined land border, the States must establish its course and mark it on the ground.

However, concerning the sea border, which had never been determined between the Republics within the former SFRY, this still has to be determined. And, if Slovenia wants to have an exit to the open sea, it must in determining the sea border insist on having jurisdiction and sovereignty over the whole Bay of Piran.

16. The basic reason for entering into the Agreement was allegedly the fact that, on the gaining of independence by Slovenia and Croatia, the former Republic border changed into a State border. This undoubtedly aggravated the life and work of the people living in the border territory. The purpose of the Agreement is to alleviate the every-day life and work of the people in the border territory, which the Government explicitly stated in the Initiative for Entering into the Agreement (Subsection 3.1). Thus, the Ministries of the Interior of both States in the years 1991 and 1992 agreed upon and noted certain types of benefits for the border population. Such benefits are also being provided for them. From a report on the meeting of the representatives of the Ministries of the Interior of Slovenia and Croatia, held on 4 October 1991 at Mokrice Castle, what follows is certain data on the problems of the people in the border territory and the scope of such problems. Thus, it was stated that approximately 15,000 citizens of both States daily cross the border (in particular those persons who commute to work and for reason of their having property on both sides of the border). According to the then data, the category of daily migrants (daily employment migration) contained approximately 7,200 Croatian citizens and approximately 840 Slovenian citizens. Approximately 5,000 Croatian citizens owned lands in Slovenian territory, and approximately 330 Slovenian citizens owned lands in Croatian territory.

17. Every agreement on border traffic and cooperation in any case presupposes the existence of a certain border. Also the Government in its reply (Appendix 5) states that it is usual that a treaty on border cooperation presupposes the existence of the border. Therefore, it states that the sequence of agreements is such that, first, an agreement on the State border is entered into, and, second, an agreement on border cooperation. However, this is allegedly not necessary. Despite the established effective control of a certain territory, the legal status of the territory can be disputed. As an example of this the Government states the Udine Agreement. Concerning this example, it is necessary to emphasize that the Udine Agreement was entered into on 20 August 1995, which is slightly less than twenty-two years after the coming into force of the final treaty on the regulation of the State border between SFRY and the Republic of Italy (i.e. on 2 April 1977), however, what was decisive for the determination of the Yugoslav-Italian border was the London Memorandum of 5 October 1954. This had been entered into prior to the Udine Agreement.

18. Art. 1 of the Agreement avoids a direct determination of the border in that it states the settlements which on land belong to the border territory (Art. 1). Where is the "external" border of the border territory depends on the regulations of each contracting Party, which determine the scope (territory) of individual settlements. The same applies to the "internal" border of the territory, which is the State border between the contracting Parties. This border may entail an overlapping insofar as the settlements' areas are not harmonized and a precise determination and marking of the border has been not agreed upon and carried out on the ground. Such a manner of describing the contracting Parties' border territories leaves open questions on the disputed parts of the border and the existence and determination of the sea border. It does not directly answer the question of who was carrying out and who is now carrying out "effective control" (power) in the disputed area. Furthermore, it does not determine who will exercise effective authority in the disputed territory, in accordance with the Agreement. This is left to the implementation, and in particular, to interpretation, and subsequent agreements that are to be made within the framework of the Permanent Mixed Commission. It is determined that each contracting Party exercises authority in its own territory. In its own area on land and its own area on the sea|

19. Also the description of the sea border area avoids the determination (definition, identification) of the border. An essential difference between the sea and land border is in that the sea area, which falls under the sovereignty of one or the other State, has never been determined in a manner such as in the case of the land border. Therefore, in Art. 1.3 of the Agreement, the sea border area is firstly defined in its entirety. Art. 1.4 limits the sea border area, for the area of border fishing (i.e. for economic exploitation), to the territorial seas of each contracting Party. This provision may be implemented provided that the territorial sea areas of one or the other contracting Parties are known or, in other words, that the sea borderline is known to the contracting Parties.

20. It is true that the purpose of the Agreement is not the determination of the border. The preamble of the Agreement explicitly determines its purpose, which is in particular the improvement of the living conditions of the people in the border area, in the spirit of good cooperation between the contracting Parties. Furthermore, it is explicitly determined in Art. 59 that the Agreement in no manner prejudices the determination and marking of the border between the contracting Parties.

Irrespective of the fact which is and which is not its purpose, the Agreement cannot avoid the determination of who carries out the authority in the border territory. It also defines that in a manner such that it avoids the determination of the border, or leaves the disputed areas open. Therefore, a starting-point for carrying out sovereignty should be the status quo principle or the uti possidetis principle which is also imposed by the Opinion of the Arbitration Commission of the Conference on Yugoslavia.

This should not be disputable if, in such a disputed area, authority has already been carried out by one contracting Party. However, a problem might develop if this right is claimed by both the contracting Parties.

21. Art. 54 of the Agreement is connected with and also intended for the "correct application", which means for the implementation of the Agreement. An analysis of the Agreement demonstrates that the questions of the manner of the implementation of the Agreement might be raised when it is not clear which contracting Party exercizes authority (sovereignty) in a certain area where one or the other side exercizes its own sovereignty which the other side opposes.

22. As a starting-point for a practical example, I am taking Art. 3.1 of the Agreement. This provides the following: "A border permit may be issued to the citizens of the contracting Parties who permanently reside in their border territories. Art. 2.4 of the Agreement determines that: "On the application of an entitled person, a border permit is issued by the body competent in accordance with such person's permanent residence, in a form determined in Appendix D."

23. Concerning the mentioned provisions, the question is raised of who will issue permits in the area of the Bužini, Škodelin and Škrile settlements, which are located in a disputed area.

According to the Government, these settlements are "hidden" both in Appendix A (in the Sečovlje settlement) as well as in Appendix B (in the Plovanija settlement). Thus, we can conceive (as an example) the following manner of the implementation of the Agreement in this area: An applicant can apply for a permit from the competent Slovenian body, which will presumably issue such.

Such a permit will be, in accordance with Art. 56 of the Agreement, sent to the other contracting Party for approval. If the other contracting Party finds that it is within its jurisdiction to issue such a document, it will not approve it.

The same will probably occur if the applicant takes the opposite direction. The case will probably be submitted for resolution to the Permanent Mixed Commission (Art. 54 of the Agreement), which deals with all questions connected with the interpretation and application of this Agreement. The Permanent Mixed Commission adopts unanimous resolutions, which take effect when approved by the Governments of the contracting Parties. Concerning the mentioned case, there will probably be no consensus reached by the Commission, and the life and work of the inhabitants will in no manner be thus facilitated.

24. In the above-mentioned case, it is not possible to implement the Agreement if the contracting Parties do not agree which of them will exercise authority in this (disputed) area, although only for the purpose of this Agreement. One or the other contracting Party will have to yield to the other the authoritative implementation of the Agreement in the part of the territory for which both of them opine that it falls within the framework of their State borders. It will have to yield jurisdiction and sovereignty to the other| It is true, which the Government emphasized (Paragraph 17 of this separate opinion), that "despite the established effective control of a certain part of the territory, the legal status of the territory might be disputable," however, provided that the carrying out of "effective control" in the mentioned case will be done in such a manner that the implementation of the Agreement unanimously is agreed upon. And, as follows from the Government's reply mentioned in the following paragraph of this separate opinion: "The manner of the implementation of the Agreement provisions is one of the methods for their interpretation."

25. I did not take the above-mentioned example by chance. It represents an example and thereby connected questions, to which the Government also has no answer. From the Governments reply to the request for the issuance of an opinion on the
constitutionality of the Agreement, I return to its reply to the deputies on the question of who was to issue permits in the disputed areas: "The settlements stated in the Appendix of the Agreement between the Republic of Slovenia and the Republic of Croatia on Border Traffic and Cooperation are undisputedly located in the State in whose border area they are mentioned.

Three settlements are disputed, which are not mentioned in the appendices and which, pursuant to the Agreement, can belong to a larger settlement in one or the other border area. In these cases, it is important that the Agreement is implemented in a manner such that, in accordance with the Agreement, the Republic of Slovenia issues documents to the inhabitants of the disputed settlements. The manner of the implementation of the Agreement provisions is one of the methods for their interpretation. This and the implementation of other acts of sovereignty can be ascribed a greater legal weight than the suggested interpretative declaration. It will be possible for the Permanent Commission established by this Agreement to resolve the question of the issuance of permits for the Škrile, Bužini and Škodelin settlements. The Slovenian side will thereby represent the interest that the matter concerns legal entitlements on the Slovenian side. The final resolution of this question depends on the border Agreement provisions. When the border is determined also in the disputed areas, each State will issue permits within its own territory and to its own inhabitants." We can imagine an answer of the Government of the Republic of Croatia to the same question| We can even easier imagine the answer to the question of whether there will be a consensus reached within the Permanent Mixed Commission on who will issue permits to the people whose living will thus be facilitated. I hope that I am wrong as regards the answer|

26. Similar questions will appear in the implementation of Chapter III of the Agreement, i.e. "Farming and Forestry Activities, the Owners of Property on Both Sides and Border Crossing." The Agreement presupposes that the borderline is not only determined but also marked. Thus, e.g., Art. 11 of the Agreement deals with the owners of ... "real property divided by the borderline," while Art. 12 deals with the owners of ... "estates divided by the borderline". This applies to a major part of the border, but not to the entire border. In the disputed parts, there may be deviations up to 200 meters.

Hypothetically, knowing in which State the property or a part of it is located, and what the size of such property or estate is, might depend on the fact of where the borderline lies. If a real property or an estate is not intersected by the borderline the owner is not obliged to follow the Agreement's regime, however, if the real property or the estate is intersected by the borderline they must comply with the Agreement. Without the consent of both contracting Parties, such a question cannot be resolved. This issue can also become a subject of consideration in the Permanent Mixed Commission. Here again the same questions concerning the border might be raised, as those above-mentioned. The determination of the borderline appears to be more than necessary, at least for the purpose of this Agreement.

27. Nevertheless, I could agree with "sticking my head in the sand" concerning the implementation of the Agreement on land, I could not do the same in relation to the questions of the implementation of the Agreement on the sea. I opine that the Agreement leaves open similar questions also in the part relating to border sea fishing (Arts. 47 to 52 of the Agreement in conjunction with Art. 1.4). The Agreement presupposes the borderline also on the sea, which it does not define, nor give any basis (criteria) for the determination thereof. This undoubtedly follows from Art. 1.4, which for the purpose of sea fishing, limits the border sea area to the territorial seas of both the contracting Parties, without determining how this will be determined or what this territorial sea should mean for the purpose of implementing the Agreement. Also, Arts. 47 to 52 presuppose that the border area of both the contracting Parties is determined or at least determinable (The contracting Parties will ... mutually enable fishing in its border sea area ... The fishermen who fish in the neighboring border area (i.e. in the territorial sea of the other contracting Party), must respect the regulations of the contracting Party that refer to fishing in this area. Particularly important is Art. 49, which determines the number of fishing boats that may daily fish in the border area in the (territorial) sea of the other contracting Party.).

Whether the fishermen of one contracting Party stay in the border area of the other contracting Party depends on an imaginary borderline, which will obviously be determined by the Permanent Mixed Commission, and approved by the Governments of both the contracting Parties (thereby also the areas of territorial seas according to Art. 1.4 of the Agreement), when first incidents occur. Without that the Agreements will not be able to be implemented in this part. The Agreement does not establish any starting points for the determination of the sea border, which is also not its purpose. Thus, in implementing this part of the Agreement, each side will start from its notion (more precisely interests) of where the sea border is located, or what belongs to the territorial sea of the individual contracting Party.

Moreover, as I have often mentioned, this applies because there has never been determined an administrative sea border between the Republics of the former SFRY. For it to be possible to implement this part of the Agreement, it will be necessary to determine the area of jurisdiction and sovereignty of Slovenia and Croatia in the parts of the sea that constitute the entire border area.

28. It is clear that in the case of every border agreement questions concerning its implementation appear. However, something else derives from the mentioned examples. Namely, Art. 54 of the Agreement grants authority to the Permanent Mixed Commission and the Government to determine, by resolution (or by the Government approving such Commission resolution), whether, in a certain part of the land (or the sea), jurisdiction and sovereignty (i.e. authority) will be exercised either by the Republic of Slovenia or the Republic of Croatia. To prevent any misunderstandings, I do not assert that the Commission and the Government will do something contrary to the interests of the Republic of Slovenia. I am convinced that they will not.

However, trust in State bodies is not a constitutional issue to be addressed in the review of the Agreement. This is a political matter and, in this part, I agree with the finding of the majority contained in Paragraph 35 of this opinion. The constitutional issue is whether such an authorizing norm, as contained in the Agreement, is in conformity with the Constitution, or not, and whether it could result, regarding Art. 1 of the Agreement, if it were unconstitutional, in prejudicing the border, which would also be inconsistent with Art. 4 of the Constitution.

29. The authorizing norm contained in Art. 54 of the Agreement is, in my opinion, first, inconsistent with Art. 2 and, second, with Art. 3.2 of the Constitution.

30. Concerning the Agreement, the question of its conformity with Art. 2 of the Constitution is raised from two sides: (a) On one side, it concerns the question whether its provisions are generally enough precise, clear and unambiguous so that they can be directly implemented in the part relating to the legal position (rights and duties) of the border population. This question certainly refers in particular to the implementation of the Agreement in the areas in which the border is disputed, undetermined, or where it does not exist at all. This question is also connected with Art. 8 of the Constitution, according to which ratified and published treaties are applied directly. By ratification and publication a treaty becomes part of domestic law. Thus, Agreement provisions must, by their character and the purpose, be directly executable, which means that on the basis of the Agreement natural persons and legal entities may exercise their rights, and are aware of their obligations in advance. If the manner of exercising the rights and duties of the border population in certain parts of the border is to be determined subsequently (by the Permanent Mixed Commission resolutions approved by the Government), i.e. after the ratification of the Agreement and its becoming part of the legal system of the Republic of Slovenia, the question of its conformity with Art. 2 of the Constitution is still more important.[6]

31. (b) On the other hand, the question of the conformity of Art. 54 of the Agreement with Art. 2 of the Constitution is raised, since it transfers the power to reach decisions from within the power of the National Assembly to the Permanent Mixed Commission and the Government. In my opinion, Art. 2 of the Constitution is violated since the mentioned article of the Agreement does not define a framework for the decision-making of the Permanent Mixed Commission and the Government. Furthermore, Art. 3 of the Constitution is violated since the same article of the Agreement interferes with the principle of the separation of powers. The Commission and the Government are not part of the legislative branch. In Decision No. U-I-73/94, dated 25 May 1995 (Official Gazette RS, No. 37/95 and DecCC IV, 51), the Constitutional Court took the following position, which it has often repeated: "Art. 120.2 of the Constitution provides that duties and offices associated with the public administration shall be carried out independently and at all times pursuant to and consistently with the Constitution and the law. The principle according to which the public administration shall be governed in its activities by the Constitution and statutory framework, and in particular by the constitutional and statutory basis (principle of legality), is one of the basic constitutional principles. The principle of legality as relating to the activities of the public administration is also linked with other constitutional principles and is based on them. The principle of democracy (Art. 1 of the Constitution) implies the requirement that members of Parliament elected in direct elections make the most important decisions, in particular those relating to the citizens. This results is that the executive branch (the Government and administrative agencies) can only operate legally if working in line with and within the framework of the law - not on the basis of their own regulations or even of their own function in the system of the separation of powers. In this respect, the priority of law and of the legislature also plays an important role in delimiting the powers of legislative and executive branches in line with the principle of the separation of powers (Art. 3 of the Constitution). The principle of a State governed by the rule of law (Art. 2 of the Constitution) requires that legal relations between the State and its citizens be regulated by statutes.

These not only determine the framework and basis for the activities of the executive branch under administrative law; the activities also become known, transparent and foreseeable for the citizens, thus increasing the legal certainty of the latter. The principle of the protection of human rights and fundamental freedoms (Art. 5.1 of the Constitution) demands that, in line with the principles of democracy and a State governed by the rule of law, these may only be limited by the legislature in the cases and to the extent allowed by the Constitution, and not by the executive branch. At the same time, this principle is also important for the effective protection of personal rights and legal entitlements, including the effective control of the constitutionality and legality of individual administrative acts."

32. As the border is still not determined and precisely marked by a special agreement, according to the uti possidetis principle applied by the Arbitration Commission for Yugoslavia, the administrative border between the Republics of the former SFRY is considered the border between the new States, which can be changed only with the consent of both sides. The course of the border is disputable in certain land areas, and the administrative border has never been determined on the sea. In particular, due to emphasizing this principle as a criterion for the final decision and the marking of the border between Slovenia and Croatia, the question is raised whether the implementation of the Agreement will actually lead to determining (not only prejudicing|) the border between the contracting Parties. It will no longer concern the question whether in a certain territory one or the other side actually exercises authority, since such questions will have to be resolved within the Permanent Mixed Commission provided that it has the consent of the Governments. The exercising of authority in a certain territory will be unanimously agreed upon (a Commission resolution approved by the Government); the basis for that will be in the Agreement. And, on the sea (I emphasize that again) there is no administrative border that existed on the day of gaining independence and which would be as such contained in Sect. II of TUL.

33. In connection with the question of the legal character of such resolutions (given the fact that they will be approved by the Government - even the Governments of both the contracting Parties) and the possible subsequent legal consequences of that for the determination of the border, let me emphasize Art. 31 of MDKPP. Art. 31.3 determines that in interpreting a treaty from the view of the treaty's context, it is necessary to be aware of every subsequent agreement between the member States concerning the interpretation of the treaty or the application of its provisions (Art. 31.3.a) and of all subsequent case law in the application of the treaty, by which the member States agreed on the interpretation of the treaty (Art. 31.3.b). And, in particular for this reason, I wanted the Constitutional Court to answer in its opinion the question of the relation between Art. 59 of the Agreement and the cited MDKPP provision.

34. It would be really difficult to define within our domestic law such a resolution as a type of treaty whose ratification falls, according to the Foreign Affairs Act, within the powers of the Government. However, pursuant to Art. 2.1.a of MDKPP, a treaty is considered to be an international agreement reached by States in writing, for which international law applies, and which is composed either in the form of only one instrument or in the form of two or several internationally connected instruments, irrespective of its special name. It is essential for a treaty, pursuant to the Vienna Convention, that the State appears as a subject of international law on entering into it. Thus, this concept does not embrace various commercial agreements reached by the Governments, and implemented through one or several national legal systems. However, "technical" or "operative" intergovernmental agreements do belong to such treaties.[7] Certainly, for such an agreement to become a valid treaty, the conditions determined in Arts. 7 and 46[8] of MDKPP must also be fulfilled.

35. Thus, it could have been unanimously determined, by resolutions of both Governments (more precisely the Permanent Mixed Commission and both Governments), on the basis of the authority provided in Art. 54 of the Agreement, which contracting Party is to effectively exercise authority in the disputed areas, and whose law is to be applied there. This is particularly important on the sea, where the controversy does not concern only the demarcation but in particular the determination of a border which has not been determined so far, which, in terms of constitutional law, does not exist between the States. Although, on the basis of the uti possidetis principle, the state of affairs on the day of the declaration of independence will be established, also the facts occurring thereafter will most probably be considered, in particular if they are a consequence of the unanimous decisions of both the Governments and if there was no administrative border at the time of gaining independence.

36. Therefore, I opine that, in the framework of the opinion on the conformity of the Agreement with the Constitution, the Constitutional Court should have answered the question whether the authority vested in the Permanent Mixed Commission and the Government violated Art. 3 of the Constitution, or it concerned only an implementation of the Agreement (statute) that does not exceed the powers of the Government. Art. 3 and, thereby also, Art. 4 of the Constitution would be violated if the Constitutional Court found that the adoption of resolutions pursuant to Art. 54 of the Agreement could not only entail the actual but also legal (concerning the rules of the Vienna Convention on the Law of Treaties as regards the interpretation of treaties) determination of the border, which falls under the powers of the National Assembly.

37. Pursuant to Art. 160.2 of the Constitution, the National Assembly is bound by an opinion of the Constitutional Court on the conformity of a treaty with the Constitution. This is certain in the event the Constitutional Court establishes that the treaty or a certain part of it is not consistent with the Constitution. To simplify, in such a case, without a constitutional amendment the treaty simply cannot be ratified.

In the case of a "positive" opinion the deputies decide in conformity with Art. 82.1 of the Constitution, according to which they are not bound by any instructions. With an opinion that leaves so many questions open, as I have indicated in this dissenting opinion, the Constitutional Court most certainly did not alleviate the deputies' work. Accordingly, the Constitutional Court on the one hand decided, despite certain reservations, that the procedural requirements for the commencement (and after the National-Assembly elections, also for the continuation) of proceedings existed (concerning that, also with my vote "in favor") and to issue an opinion, however, on the other hand it decided to return back to the National Assembly such a "hot potato," as little spiced as possible.


Dr. Janez Čebulj

Lojze Janko


Opombe:
[1] This might develop if the treaty contains provisions directly applicable in the domestic law. If this occurs, the Constitutional Court would, in proceedings to review constitutionality, annul the act on the ratification or the unconstitutional treaty provisions thereby incorporated into the domestic law. Such treaty provisions would cease to apply in domestic law, which would violate the international obligations of the Republic of Slovenia (an international delict).
[2] International law requires a system in which States must organize their authority in the area of foreign affairs in a manner such that they will be capable of cooperating in international transactions actively, stably, reliably, reasonably and responsibly (...). A State must implement all effective treaties. The pacta sunt servanda principle and the entire structure of international relations depend on this rule.
Treaties would be worthless if every State could avoid its international obligations by an excuse that these are contrary to its domestic law. See L. Wildhaber, Treaty-Making Power and Constitution, An Internal and Comparative Study, Hlebing & Lichtenhahn, Basel 1971, pp. 175 and 184.
[3] [See supra, the identical note 33].
[4] The court held in that case that, wherever it appears, the uti possidetis principle has a general character, as it is logically connected with decolonization (the establishment of new States). Thus, it was applied in the decolonization process in Latin America, Asia and Africa. The principle is also accepted in the process of establishing new States in Europe, as a consequence of self-determination. - J. Brownlie, The Rule of Law in International Affairs, 1998, pp. 56-59.
[5] G. Lalić, Reševanje spora med Slovenijo in Hrvaško glede razmejitve morske meje v severnem delu Jadrana; v Zborniku:
Vprašanje oblikovanja slovenskega etničnega in državnega prostora s posebnim poudarkom na slovensko - hrvaški meji v Istri [The Resolution of a Dispute between Croatia and Slovenia Concerning the Demarcation of the Sea Border in the Northern Part of Adriatic; in the collection: The Issue of Forming the Slovenian Ethnic and State Territory with a Special Emphasis on the Slovenian - Croatian Border in Istria]; Portorož 1998. This principle is similarly described in J. Brownwhile, op. cit., str 55.
[6] "One of the basic principles of a State governed by the rule of law is that statutory norms must be clear, understandable and unambiguous. This in particular applies to regulations that directly regulate the rights and legal position of a wide range of citizens. A regulation from which an average citizen, who is not learned in law, cannot by themselves understand their legal position, but which could be, also in accordance with an opinion of the legislature - in contradistinction with its explicit text -, correctly applied only by an interpretation of the statutory provisions in the process of their implementation, i.e. by competent public administration bodies, creates legal uncertainty and thereby distrust in the law, and violates the principles of a law-governed State." The Constitutional Court wrote this in the reasoning of Decision No. U-I-64/97 (DecCC VI, 78). Furthermore, it has written the same previously and subsequently. As follows from the continuation, exactly in the cited part of the reasoning, all elements are included which appear also in connection with BHROPS: non-clarity, direct regulation of the rights and legal position of the border population and the application of provisions (application or a manner of application) to be determined by the Permanent Mixed Commission and indirectly the Government, which, at the moment of submitting BHROPS to the National Assembly for ratification, does not know yet how this will be implemented in practice concerning the disputed parts of the border.
[7] "It is not clear, in every respect, how broad the concept of "every treaty" is; it seems that it has a broad meaning.
Included are technical intergovernmental agreements, declarations by which an optional provision in the Charter of the International Court is recognized, agreements between organizations and States, agreements between organizations, and unilateral commitments of an international character." I. Brownlie, Principles of Public International Law (4th ed.), Oxford University Press Inc., New York 1990, pp. 612-13. The competent working body of the General Assembly of the United Nations has established that, for the purpose of registration according to Art. 102 of the Universal Charter of the United Nations, treaties are considered to include also agreements of a financial, technical and economic character, in which no foreign ministries participate but appropriate expert departments. See in Wilhelm Karl Geck, Die Regiestrierung und Veroeffentlichung voelkerrechtlicher Vertraege, ZaoeRV, Bd. 22/1-2, p. 144.
Similarly also in B. Simma, The Charter of the United Nations, A commentary, Oxford University Press, 1995, pp. 1105-13.
[8]Art. 7 is included in the chapter on entering into a treaty, while Art. 46 is included in the chapter on the nullity of a treaty. The provisions read as follows:
Art. 7 (Full Powers):
"1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ."
Article 46 (Provisions of Internal Law Regarding Competence to Conclude Treaties)
"1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith."
Type of procedure:
review of treaties
Type of act:
other acts
Applicant:
National Assembly Deputies
Date of application:
27.01.2000
Date of decision:
19.04.2001
Type of decision adopted:
decision
Outcome of proceedings:
opinion on conformity of a treaty with the Constitution
Document:
AN02615