Treaty and Constitution: A Comparative Analysis of an Uneasy Relationship
| DOI | 10.1177/1023263X9600300104 |
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| Author | Theodor Schilling |
| Subject Matter | Article |
Theodor Schilling *
Treaty and Constitution
AComparative Analysis of an Uneasy Relationship
§1. Introduction
It
has been usual, for an extended period of time, to speak of the European Treaties as
aconstitution. 1However, the consequences supposed to flow from that characteriz-
ation, if any, are by no means clear. This article proposes to discuss such consequences
in comparative terms. Constitutions may be made by a single act of one constituent
power or by a treaty between states, Treaty-constitutions may be different, in certain
ways, from single act constitutions, in particular in respect of possibilities for termina-
tion, I shall first discuss the different methods of enacting a constitution. I shall go on
to discuss the implications of the method chosen on the possibilities to terminate the
constitution thus enacted. And I shall conclude by discussing ways of transforming a
treaty-constitution into a single act constitution.
§2. The Enactment of a Constitution
A.
SINGLE
ACT
CONSTITUTIONS
Constitutions may be made by a single act of one constituent power which, in a demo-
cratic society, would have to be the people 2i.e. a human group either pre-existing as
*Dr. jur. utr., LL.M. (Edin.); Court of Justice of the EC, Luxembourg; Privatdozent, Humboldt
University at Berlin. All opinions expressed are purely personal.
1. Cf. e.g. German Federal Constitutional Court (FCC), BVerfGE22, 293; ECJ, Case 294/83 Les Verts
v. Parliament [1986] ECR 1357,1365; Opinion 1/91 [1991] ECRI-6084, 6102; D. Grimm, 'Braucht
Europa eine Verfassung?', JZ (1995),581; G.C. Rodriguez Iglesias, 'Zur "Verfassung" der Europai-
schen Gemeinschaft', EuGRZ (1996), 125.
2. The idea of 'the people' as constituent power goes back to the 'social contract' (J. Locke; cf. E.S.
Corwin, 'The "Higher Law" Background of American ConstitutionalLaw', 42 HarvLR (1928/29), 149,
365 at
385,397;
H. Arendt, On Revolution, (Penguin Books, 1990), 178, and further back to Roman
ideas on popular sovereignty (Corwin, 42 HarvLR (1928/29), 152, referring in n. 8 to Ulpian Dig. I,
MJ 3 (1996) 47
ITreaty and Constitution
a (legal) people or constituting itself as such by the very act of enacting a single act
constitution. 3Examples of the former case are constitutions enacted in a pre-existing
state. 4Examples of the latter case are constitutions encompassing formerly independent
or only loosely confederated states. 5They can be distinguished from treaty-constitu-
tions by the fact that they contain provisions for their own ratification, 6under which
a majority of the constituent parts of the future federation can enact the constitution
which has binding force even for the dissenting minority. 7This fact makes it clear that
the future constitution regards the future federation as having a single constituent power;
otherwise it would not be possible to explain the binding force
of
the majority decision
on the dissenting minority.
2.~
4, 1; Inst, I, 2, 4). Consequently, Arendt, On Revolution, at 145, distinguishes between 'a constitution
that is the act of government and the constitution by which people constitute agovernment' .
3. In the latter case, a(social) people may well have existed before the (legal) people constituted itself.
This was the case
e.g.
when the Swiss constitution
of
1848 (cf. Federal Constitution of the Swiss
Confederation of September 12, 1848, preamble, in A. Klitz, Quellenband zurneueren schweizerischen
verfassungsgeschichte. Yom Ende der Alten Eidgenossenschaft bis 1848, (Stampfli,
1992),447:
'The
Swiss Confederation, wishing ... to maintain and to increase unity, force and honour of the Swiss
nation ..
.')
and the German Basic Law of 1949 were enacted; on the emergence of a German people
as constituent
power
cf. infra text accompanying n. 120 et seq.
4.
For
federal constitutions, cf. on a comparative level K. Lenaerts, 'Constitutionalism and the Many
Faces
of
Federalism', 38 AICL (1990), 205 at 237 et seq. Prime examples are the Austrian constitution
of 1919 (cf. H. Kelsen, Osterreichisches Staatsrecht. Ein GrundrifJ, entwicklungsgeschichtlicn
dargestellt, 2nd reprint of the ed. (Ttibingen 1923), (Scientia Verlag, 1981), at 164 et seq.) and, in our
time, the Belgian constitution as amended; the federalization of Belgium was completed by an act of
the Belgian parliament of May 5, 1993, inserting inter alia Arts. 59quater to 59septies into the con-
stitution.
5. This distinction reflects the distinction between integrative and devolutionary federalism on which cf.
Lenaerts, 38 AICL (1990), 205 at 206, and Carl J. Friedrich, Constitutional Government and Demo-
cracy, 4th ed. (Blaisdell
Pub.Co.,
1968), at 193. Prime examples are the Swiss constitution of 1848
and the German Basic Law of 1949.
6. On the importance of that fact cf. Th. Schilling,
'The
Autonomy of the Community Legal Order. An
Analysis of Possible Foundations', forthcoming in 37 Harv. Int'l
U,
at n. 24 et seq.
7. Examples are Art. 144
(I)
of the German Basic Law (BL): 'This Basic Law requires the enactment by
the legislatures of two thirds of the German Lander'; and Art. 2 '01' the Transitory Provisions of the
Swiss Constitution, in Kutz, Quellenband zur neueren schweizerischen Yerfassungsgeschichte, 480: •...
the Diet which will decide whether the new federal constitution has been adopted'. Both constitutions
were indeed enacted by a majority of the constituent parts, and not unanimously, and the binding force
of these decisions was accepted by the outvoted minority: In the German case, the Bavarian Landtag
did not accept the bill that eventually became the Basic Law but declared that Bavaria would be part
of the FRG anyway. In the Swiss case, 15 112 out 01'22 cantons voted for the adoption of the constitu-
tion; cf. A. Kotz, Neuere schweizerische Yerfassungsgeschichte. Ihre Grundlinien vom Elide der Alten
Eidgenossenschaft bis
18411,
(Stampfli, 1992), at 608 et seq. The canton of Obwalden made a declar-
ation similar to the Bavarian one; cf. ibid., at 609.
48 MJ 3 (1996)
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