International Conference

“Balkans and Kosovo: Economy and Politics”

UNIVERSUM UNIVERSITY

Prishtina, 27-28 April 2009

Conference Paper

“The democratization of Domestic Law as a condition for the European Integration of Western Balkans: case of albania”

By Attorney Mr. Jordan DACI, MA (Ph.D. Candidate)

Daci Law Firm/ Marin Barleti University and Wisdom University Tirana - Lecturer of Human Rights Law, Public Law and EU Law

Abstract

All Western Balkans countries including Albania have undergone similarly a long and very exhausting transition period, in trying to forget their communist past and to embrace the values of market economy, rule of law and democracy as well as aiming to make progress toward a welfare state. The democratization process for these countries is not just an avoidable result of the regime change, but is also an essential part of their modernization and integration processes into EU-Atlantic structures. Western Balkans countries cannot be integrated into international community and particularly into EU-Atlantic structures, without significantly democratizing their domestic legislations, which are under the permanent pressure of the binding democratic legal framework of the international law. The process of democratization is comprehensive, and in the case of Western Balkan countries is also strongly interrelated and has a significant regional dimension, apart from of the vis a vis approach. For every single country, the democratization process has no meaning without the democratization of the domestic law as the only way to establish rule of law, to guarantee an open market economy and to ensure full protection and respect for human rights. In this perspective, two of the main components of the democratization process for Western Balkans counties are the EU and NATO integration processes. Indeed, these integration processes provide a compelling framework for the development and democratization of Western Balkans countries in general and especially of their domestic legislations. Thus, the integration process cannot be successfully completed without the democratization of Western Balkans’ countries domestic legislation. Meantime, the democratization of domestic law means inter alia: 1. the acceptance of supremacy of international rules over domestic law; 2. direct or indirect application of international rules into domestic law system; 3. the continuing approximation of domestic legislation with the rules of international law; 4. the approximation of understanding and enforcement of the rules of International Law. In case of Albania, the constitutional framework provides the necessary legal framework for the democratization of the domestic legislation. Although, in practice remains a lot of more work to be done, since now at this stage of advanced globalization, neither the dualist theory or any other prevailing doctrine nor any other domestic law, can no longer be a real barrier for the domestic enforcement of international rules.

Key words: democratization, sovereignty, domestic law, international law, approximation of legislation, European Integration, Acquis Communautaire, Monist Theory, Dualist Theory, Modernization Theory, Legal Approach.

Introduction

The relationship between the democratization process of the domestic law and the European Integration of Western Balkans countries such as Albania not only exists, but is a very comprehensive and strong one.  According to the legal approximation approach that is based on the assumption of classical economic liberalism, the idea is that convergence, approximation, or harmonization of legal systems will in the long run stabilize and strengthen national economies and will create a healthy competitive environment. The conditions for movement of goods, capital, services, and people become similar, which automatically would lead to deepening integration.[1][1]Indeed, the European Integration process, in the case of Western Balkan countries identified generally as the Stabilization and Association process (SAP) is the EU policy for relations between the European Union and the Western Balkans.[1][2]On the other hand, policies attached to the SAP rely on the EU membership criteria established by the Copenhagen European Council in 1993 and laid down in Articles 49 and 6 of the EU Treaty. The approximation of domestic legislation with EU law standards is one of the main components of the SAP. [1][3] Thus, the democratization of the domestic legislation should be understood first as mandatory approximation with EU Law’s standards, and second as one of the main EU membership criteria. In other words, the democratization of the domestic law serves also as a tool for measuring the advancement in the process of European integration, which depends mainly on each country’s own commitment and capability as fully functioning states to political and economic reform as well as adherence to the core values and principles of the Union.[1][4]

Regardless of these findings, it should be underlined that the democratization process of domestic law in Western Balkans and especially in Albania, is not exclusively related to the European Integration Process, but stands also upon the general process of nationalization of international law rules, such as those set forth in the European Convention of Human Rights and Fundamental Freedom (ECHR), other core rules of international human rights law, as well as other general international law rules, which do prevail also upon EU law. [1][5] In case of Albania, the democratization process of the country and particularly of the domestic law system has begun in 90’ with the fall of the communist regime and the establishment of the political pluralism, restructuring of economy, with the guarantee of human rights and fundamental freedom etc. This was a new era for the relationship between rules international law and domestic law.

The democratization of the Albanian Legislation

The international law and international community constitute ipso facto and ipso jure the general framework for the democratization of the Albanian legislation which in last two decades has experienced essential changes and amendments. The initial extensive changes and amendments were introduced by the Law No. 7491, dated April 29, 1991 on Main Constitutional Provisions. This law in the Article 8 provided that the Legislation of the Republic of Albania takes into account, recognizes and respects the principles and the general rules of international law. Similarly, but with a more detailed language, the Constitutional of the Republic of Albania, adopted in 1998 at first by the People’s Assembly and than through a referendum in the articles 5, 17, 116, 122, 123, provides that the Republic of Albania applies the international law binding upon it, and ranks the international law, right after the constitution within the hierarchy of legal acts, by recognizing also the superiority of international law over domestic laws in case of noncompliance. Distinctly from other recent world’s constitution, the Constitution of the Republic of Albania in the Article 17 invokes directly the ECHR[1][6], giving to the latter a constitutional status and ultimate supremacy over any domestic law including the Constitution itself. From this point of view, it seems that the Constitution of the Republic of Albania embodies the monist theory of international law. Although, strangely the general perception among Albanian scholars tends to support the dualist theory of international law, which is apparently related with the former communist doctrine of absolute sovereignty and a considerable influence of Italian doctrine. This conclusion is also supported by the jurisprudence of the High Court and Tirana Court of Appeals, where among few cases dealing with the direct application of international law rules, predominates the application of the principle lex posterior derogate lex prior. In fact, this principle has been the main foundation of the Italian dualist doctrine for many years.[1][7]In relation to our main discussion, EU law, apart from its sui generis nature, per se isn’t different from international law, since the supernationality as such is associated first with the international law and second with the EU law, that is nothing more or less than a special category of international law. Nevertheless, the Albanian Republic of Albania, despite from its constitutional framework, or any other domestic circumstance, is obliged per virtu of the EU law to accept its superiority over all domestic laws, including the Constitution itself.  The superiority of international law especially of EU law over the domestic legislation is confirmed by the European Court of Justice in the Case International Handelsgesellschaft 1970 and in many other cases. For Hans Kelsen, “the content of a domestic legal system of a state is defined by the International Law in the same way how the content of future laws is defined by a constitution which does not contain any provision for their constitutional review... based on this supremacy of the International Law over domestic law, nothing may deny the presumption of the unity between International Law and Domestic Law. Therefore, the International Law stands over a higher position than the Domestic Law, otherwise treaties reached between states wouldn’t be legally binding.[1][8]This is especially true for today’s International Law that is not just a jus inter potestas or a law that regulates only relationships between sovereign states, but applies also on individuals.[1][9] To conclude the Article 27 of the Vienna Convention on the Law of Treaties leaves no space for further discussion about this issue by providing that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46”. Any kind of interpretation of the domestic law, including the Constitution which would avoid the application of international law at the domestic level as long as the state has accepted international law as integral part of domestic law would be unacceptable and would constitute a violation of the article 31 of the Vienna Convention on the Law of Treaties and would be void. The same statement was made by the International Tribunal of ICC in case “Pyramids”.[1][10] In other words the democratization process serves as a very powerful tool for a fundamental transformation of the Albanian legislation and will undoubtedly have an important effect to the change of mentality among Albanian lawyers and scholars. No one can refuse to accept the fact, that important international tribunals and other quasi judicial bodies through their rulings have shaped the domestic legislation of almost every country each time they found its domestic legislation as being incompatible with international treaties including EU primary and secondary legislations. Their rulings have major implications not sole for these countries’ legislation, but also for judicial practice. [1][11]In the Netherlands, for instance, the judgments in the cases of Kostovski (1989), Van Mechelen (1997) and Ladogny et al. (2000) led to changes in the customary practice of calling witnesses to testify in court only by way of exception.[1][12] Moreover, the democratization process as a whole and specifically the democratization of domestic legislation is inter alia an unavoidable consequence of the globalization process. The latter itself, is generally materialized in the rules of international law as well as in the rules of EU law.

From this point of view, the democratization process does not represent one of the EU membership criteria, but is also a consequence of the Internationalization and of Europeanization processes that define a political and legal frame for the adjustment of the domestic law to the extend and content of the International Law as well as EU law. The domestic law system has no choice than to approximate itself with the international and EU law standards. Such approximation can be done mainly through two ways such as: 

1.      The automatic transformation of international law rules into self-executing rules into the domestic law system. This way is applicable in cases when the constitutions or laws of different states foresee that international law rules are directly applicable within the domestic law system. This process means an automatic transformation of incorporation of these rules into domestic law rules, without the need to pass any other domestic legislation.

2.      Legislative incorporation of international law rule. According to this way, the international law rules become applicable within the domestic law system, only after the legislative organs of states pass specific legislation for such purpose.  This specific legislation can transform the international law rules into applicable rules 1. By including these rules within domestic law provisions; 2. the legislative gives to international law rules, the status of domestic law rules, without changing or modifying them. Certainly, the legislative incorporation of international rule can be applicable only for non self-executing rules.

Consequently, Albania in order to become a full member of EU, regardless of its constitutional provisions and doctrine shall accept to apply all the norms of international law and especially of EU law. Otherwise Albania cannot be part of this democratic community, like William Blackstone used to say: “A state that would not accept to be bound by the norms of international law would cease being part of the civilized world”.[1][13]

Conclusions

The European Integration process provides a compelling political, economic and legal framework for the democratization of the Western Balkans countries’ domestic law. Indeed, the European Integration within EU itself and EU law as one of its outcomes, does not impact only the domestic legislation of the EU members states and other Western Balkans countries, but also shapes international rules in diverse fields and adjust them to its needs, although this phenomenon does not yet constitute an international customary rule in itself.[1][14]

In addition, the European Integration is also a result of the modernization process, which according to one of the integration theories; the modernization theory posits a strong relationship between modernization process and democracy. (Lipset, 1959). Indeed, for Professor Claus Offe democracy is the fourth phase of the modernization and it comes right after the nation, state and market economy, and is followed by the welfare state. [1][15]

The willingness of Western Balkans countries to democratize or approximation their domestic legislation with EU-Atlantic standards requires new mechanisms for their legislatives to control the compatibility of their domestic legislation with EU and International Law, because, now at this stage of advanced globalization, neither the dualist theory or any other prevailing doctrine nor any other domestic law, can no longer be a real barrier for the domestic enforcement of international rules. Thus their domestic legislation content is defined by the International and EU law in the way as their constitution defines the content of future laws.  The domestic law systems of these countries have no choice other than to approximate and consequently democratize themselves with the international and EU law standards; otherwise the trip of Western Balkans countries to join the democratic world of the international community may in the middle of the road.

Bibliography

1.       A.F.M. Maniruzzaman. “State Contracts in Contemporary International Law: Monist versus Dualist Controversies. European Journal of International Law. Vol.12.No.2. 309-328.  

2.       Aurela Anastasi. “Leksione të së Drejtës Kushtetuese në Shqipëri”.

3.       Bruno Simma. “The Contribution of Alfred Vedross to the Theory of International Law”. European Journal of International Law. (1995).

4.        Christer Pursiainen. “Theories of integration and EU-Russian relations”. 2007. http://209.85.129.132/search?q=cache:c9iJUXZNzYkJ:www.mfa.gov.lv/data/CBSS%252020072008/theories%2520of%2520integration%2520and%2520rfeu%2520relations_pursiainen.doc+Christer+Pursiainen.+Theories+of+integration+and+EURussian+relations&cd=2&hl=en&ct=clnk. 

5.       COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT: The Western Balkans and European Integration. Brussels, 21.5.2003. COM (2003) 285 final.

6.       EU Treaty.

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8.       Hanno Kaiser. “Notes on Hans Kelsen’s Pure Theory of Law (1^st Ed.). 2004”. Professor’s Hanno Kaiser webpage. Available at: www.hfkdocs.com/files/Kelsen_Pure_Theory.pdf.

9.        Magdalena Lièková. European Exceptionalism in International Law. The European Journal of International Law Vol. 19 no. 3 © EJIL 2008.

10.    Pim Haak. Accomodating legal diversity in the European Union. Brief reflections by Pim Haak, Chief Justice of the Supreme Court of the Netherlands, and Jan-Watse Fokkens, Deputy Procurator General at the Supreme Court; For the Conference of Presidents of the Supreme Courts and Attorneys General of Member States of the EU, in Dublin, from 29 to 31 May 2002.

11.    Raporti tra Diritto Nationale e Diritto Comunitario. Available at the official webpage of the Italian Constitutional Court at:

http://www.cortecostituzionale.it/documenti/download/pdf/Rapportitradirittonazionaleedirittocomunitario.pdf

12.    UN Charter.