The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman N.A. Karpovich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.V. Podgrusha, V.N. Ryabtsev, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus”.

Having heard the reporting judge S.P. Chigrinov, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

The Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 19 April 2018, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 24 April 2018 and submitted for signing to the President of the Republic of Belarus.

 The Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” is hereby amended and restated in its entirety (hereinafter – the Law on Treaties).

 The Law is intended to improve the legal regulation of relations connected with the conclusion, entry into force, official publication, registration, keeping custody, recording, performance, suspension and termination of the operation of the treaties of the Republic of Belarus.

 1. Within its competence to exercise obligatory preliminary review of the constitutionality of laws the Constitutional Court evaluates the Law and appreciates the necessity to safeguard the supremacy of the Constitution and the direct effect of its rules. By doing so the Court proceeds from the constitutional provisions:

 that proclaim the Republic of Belarus to be a state based on the rule of law, exercising supreme control and absolute authority over its whole territory and implementing an independent domestic and foreign policy (Article 1.1 and Article 1.2);

 that establish the rule of law principle binding upon the Republic of Belarus and obliging all the bodies and officials thereof to operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Article 7.1 and Article 7.2);

 determining that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith and that the Republic of Belarus in conformity with the rules of international law may on a voluntary basis enter interstate formations and withdraw from them (Article 8.1 and Article 8.2);

 barring conclusion of treaties that are contrary to the Constitution (Article 8.3);

 providing that in its foreign policy the Republic of Belarus shall proceed from the principles of equality of states, non-use of force or threat of force, inviolability of frontiers, peaceful settlement of disputes, non-interference in internal affairs and other generally recognised principles and norms of the international law (Article 18.1);

 that guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State’s international obligations (Article 21.3);

 binding the State to take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1).

 2. As a sovereign independent state and a full subject of the global community, the Republic of Belarus exercises supreme power and absolute authority over its territory and implements an independent domestic and foreign policy. The treaties of the Republic of Belarus are one of the means to ensure that its international policy is implemented and the state interests in the foreign area are protected.

 As provided in Article 3 of the Law on Treaties, the conclusion, entry into force, official publication, registration, keeping custody, recording, performance, suspension and termination of the operation of the treaties of the Republic of Belarus shall be carried out in accordance with the Constitution of the Republic of Belarus, the generally recognised principles of international law, the Vienna Convention on the Law of Treaties of 23 May 1969 (hereinafter – the Vienna Convention), other treaties of the Republic of Belarus, the current Law and other acts of legislation of the Republic of Belarus.

 The above rule determines the legal basis for the mentioned legally significant acts and thereby complies with the constitutional provisions prescribing that the Republic of Belarus shall be bound by the rule of law principle; that the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Article 7.1 and Article 7.2); that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1); that in its foreign policy the Republic of Belarus shall proceed from the generally recognised principles and norms of the international law (Article 18.1).

 3. The Parliament – the National Assembly of the Republic of Belarus is a representative and legislative body of the state that in accordance with Article 97.1.2 and Article 98.1.1 of the Constitution exercises the authority to adopt laws on ratification and denunciation of treaties.

 As Article 19 of the Law on Treaties prescribes, those of the interstate and intergovernmental treaties which amend interstate and intergovernmental treaties to which the consent of the Republic of Belarus to be bound by was expressed by means either of a law of the Republic of Belarus or an act of the Supreme Council of the Republic of Belarus; which suspend or terminate the operation of interstate and intergovernmental treaties of the Republic of Belarus to which the consent of the Republic of Belarus to be bound by was expressed by means either of a law of the Republic of Belarus or an act of the Supreme Council of the Republic of Belarus, shall also be subject to ratification.

 Establishing additional grounds for expressing the consent of the Republic of Belarus to be bound by a treaty through ratification in the form of a law corresponds to the constitutional powers of the Parliament of the Republic of Belarus and eliminates legal uncertainty when choosing the means of expressing the consent of the Republic of Belarus to be bound by a treaty which amends the treaties previously ratified, suspends or terminates their operation.

 The legal regulation herein is consistent with the rule of law principle established in the Constitution (Article 7.1) and the implicit constitutional principle of legal certainty.

 As indicated in a number of decisions of the Constitutional Court, the rule of law refers to several components including legal certainty, which implies clarity, accuracy, consistency and logical coherence of legal norms; when legal certainty is upheld in rule-making, relevant conditions for uniform and predictable law-enforcement are provided thereby increasing public confidence in the State.

 4. In order to optimise the conclusion of treaties and implementation of international obligations of the Republic of Belarus the Law on Treaties implies to improve the procedure for granting powers to perform legal acts for concluding international treaties (Articles 8, 13–16) and to shorten the timeframe for determining means of expressing the consent of the Republic Belarus to be bound by a treaty (Article 18).

 Thus, in accordance with Articles 8.1 and 8.3 of the Law on Treaties the powers to hold negotiations on the drafts of interstate and intergovernmental treaties or on the issue of possible participation of the Republic of Belarus in such treaties; to sign treaties or to hold negotiations and sign treaties shall be granted to a state body of the Republic of Belarus, a department of the state body. The said powers may be exercised by the Prime Minister of the Republic of Belarus – on his own initiative upon notice to a state body of the Republic of Belarus, a department of the state body, empowered to sign such treaties. The said powers may also be exercised by the Minister of Foreign Affairs of the Republic of Belarus – as agreed by the Ministry of Foreign Affairs of the Republic of Belarus and a state body of the Republic of Belarus, a department of the state body empowered to sign such treaties.

 As Articles 13.1 and 13.5 of the Law on Treaties provides, the powers to hold negotiations on drafts of the treaties of interdepartmental character or on the issue of possible participation of the Republic of Belarus in such treaties; to sign such treaties or to hold negotiations and then sign treaties shall be granted to the head of a state body of the Republic of Belarus, a department of the state body, the competence of which includes issues contained in the drafts. Such powers may be exercised by the Minister of Foreign Affairs of the Republic of Belarus and his deputies, the ambassadors extraordinary and plenipotentiary of the Republic of Belarus as well as by permanent representatives of the Republic of Belarus to international organisations as agreed by the Ministry of Foreign Affairs of the Republic of Belarus and a state body of the Republic of Belarus, a department of the state body, the competence of which includes issues contained in the drafts.

 Article 18 of the Law on Treaties prescribes that:

 the Ministry of Foreign Affairs of the Republic of Belarus shall, within seven days from the day of receipt of the text of the treaty which has not entered into force since the day of signing, exchange of notes, letters and other instruments, constituting the treaty, from a state body of the Republic of Belarus, a department of the state body or the depository, send its copy to the Ministry of Justice of the Republic of Belarus and to a state body of the Republic of Belarus, a department of the state body, the competence of which includes issues contained in the treaty (Article 18.1).

 The Ministry of Justice of the Republic of Belarus shall, within fifteen days from the day of receipt of a copy of the treaty and its official translation into Belarusian and (or) Russian, where the treaty is concluded only in a foreign language, submit the relevant conclusion to the Ministry of Foreign Affairs of the Republic of Belarus (Article 18.3).

 Following the conclusion of the Ministry of Justice of the Republic of Belarus and relying on the provisions of the treaty, the Ministry of Foreign Affairs of the Republic of Belarus shall determine means of expressing the consent of the Republic Belarus to be bound by a treaty and shall, within seven days from the day of receipt of the conclusion of the Ministry of Justice of the Republic of Belarus, notice to a state body of the Republic of Belarus, a department of the state body, the competence of which includes the issues contained in the treaty, of the necessity to suggest certain means for the expression of the consent of the Republic of Belarus to be bound by a treaty, and shall forward a copy of the conclusion of the Ministry of Justice of the Republic of Belarus to them (Article 18.4).

 So, Article 18 of the Law “On the Treaties of the Republic of Belarus” as presently in effect provides for a ten-day, thirty-day and ten-day time-limits, respectively, for implementation of the said legal acts.

 The Constitutional Court considers

 that the established legal regulation is aimed to improve the procedures for concluding the treaties of the Republic of Belarus, to tighten international links of the Belarusian state;

 that it meets the general legal principle of reasonableness as a core principle of law-making;

 that it is based on the constitutional rules envisaging that the Republic of Belarus exercises supreme control and absolute authority over its whole territory and implements an independent domestic and foreign policy; that the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens (Article 1.2; Article 59.1);

 that it is consistent with the following principles of the foreign policy of the Republic of Belarus as established in the Program Law of the Republic of Belarus “On Approving the Principal Directions of the Domestic and Foreign Policy of the Republic of Belarus” (paragraphs 23.4 and 23.5) – raising of efficiency of political, legal, foreign economic and other instruments for protecting the state sovereignty of the Republic of Belarus and its national economy in the context of globalisation; developing comprehensive co-operation with foreign states, international organisations and interstate formations on the basis of generally recognised principles and rules of international law, mutual consideration and observance of the interests of all members of the international community.

 5. The Constitution provides that the State shall regulate economic activities in the interests of the individual and society (Article 13.5).

 The Constitutional Court notes that regulation of economic activities in the interests of the individual and society implies the development of international economic relations, including for the purposes to attract financing of international organisations to the national economy.

 Article 1 of the Law on Treaties enshrines the concept of “a treaty aimed to attract financing of international organisations to the Republic of Belarus”. It is defined as an interstate or intergovernmental treaty aimed to obtain loans (credits) of international organisations for the Republic of Belarus within the foreign national debt as established by the law on the republican budget for the relevant financial year, as well as to raise investment in the Republic of Belarus from such international organisations (paragraph 14).

 The Law on Treaties covers decisions to negotiate the drafts of interstate and intergovernmental treaties and (or) to sign such treaties shall, with regard to treaties aimed to attract financing of international organisations to the Republic of Belarus, provided such treaties establish different rules than those contained in the laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, and (or) have to do with issues relating only to the sphere of legislative regulation, but not regulated by the laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus. According to the Law on Treaties those decisions shall be adopted by the Council of Ministers of the Republic of Belarus as agreed by the President of the Republic of Belarus in the form of a resolution (Article 5).

 Article 19.2 of the Law on Treaties provides that the treaties aimed to attract financing of international organisations to the Republic of Belarus provided such treaties establish different rules than those contained in the laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, and (or) have to do with issues relating only to the sphere of legislative regulation, but not regulated by the laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, shall be approved by edicts of the President of the Republic of Belarus.

 In the opinion of the Constitutional Court, the cited provisions of the Law on Treaties are intended to optimise the negotiations on the drafts of treaties which ensure the attraction of financing of international organisations to the Republic of Belarus, and signing of such treaties, as well as to shorten the timeframe for attracting of such financing that is in line with Article 13.5 of the Constitution.

 In addition, this legislative approach is based on the constitutional functions of the President of the Republic of Belarus as the guarantor of the Constitution, the rights and freedoms of man and of the citizen, the implementation of the main guidelines of the domestic and foreign policy, who represents the Republic of Belarus in relations with other states and international organisations (Article 79.1 and Article 79.2), as well as on the powers of the Government of the Republic of Belarus to elaborate the basic guidelines of domestic and foreign policy and take measures for their implementation, to ensure implementation of a uniform economic policy (Article 107.3 and Article 107.5).

 6. The Law on Treaties provides a procedure for expressing the intention of the Republic of Belarus not to become a party to a treaty and a procedure for revoking of an instrument on expressing the consent of the Republic of Belarus to be bound by a treaty. Thus, the Law establishes that the Republic of Belarus may, in accordance with the terms of a treaty and (or) international law, express its intention not to become a party to a treaty that has not entered into force from the date of signing, exchanging notes, letters or other instruments constituting the treaty (Article 26.1). The Republic of Belarus may also revoke the instrument on expressing the consent of the Republic of Belarus to be bound by a treaty before the date of its entry into force (Article 27.1).

 The Constitutional Court considers that the provisions of the Constitution on the State guaranteeing the rights and freedoms of citizens of Belarus, enshrined in the Constitution, laws and state international obligations (Article 21.3) and on the State obligation to take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1) call for the conclusion of treaties in the best interests of the Republic of Belarus. As to legal procedures, stipulated by the provisions above, the Court finds they are aimed to ensure the interests of the Republic of Belarus and its citizens in international relations.

 The Law on Treaties also contains provisions on statements to treaties.

 According to this Law, a statement to the treaty is a unilateral official position however phrased or named, made by the state, the international organisation or other subject empowered to conclude treaties, whereby it purports to clarify or explain the impact and the meaning of the treaty or its specific provisions (Article 1.7). A statement to the treaty may be made by the Republic of Belarus at any time in accordance with the terms of the treaty and (or) international law (Article 29.1).

 Making statements to treaties appears to be used in international practice. A statement, being in fact an interpretative legal provision of a declarative nature, is not aimed at modifying the subject matter of a treaty. However it may serve an effective means of affecting the conduct of other subjects of international law so that they take account of the interests of the Republic of Belarus. As the Vienna Convention provides for the instances where the formulation of reservations to a treaty shall be prohibited (Article 19 “a–c”), the statements to a treaty remain the only means for the State to express its particular position. The option for formulating statements to treaties provided to the relevant state bodies by Article 29 of the Law on Treaties, meets, in the opinion of the Constitutional Court, the goals and values established by Article 21.3 and Article 59.1 of the Constitution.

 7. Article 36.1 of the Law on Treaties provides that the treaties of the Republic of Belarus shall be faithfully implemented by the Republic of Belarus in accordance with the international law.

 The Constitutional Court considers this provision to be consistent with Article 8.1 of the Constitution stipulating that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith, as well as with with the generally recognised principle of international law “pacta sunt servanda” enshrined in Article 26 of the Vienna Convention. As the said principle prescribes, every treaty in force is binding upon the parties to it and must be performed by them in good faith. It is also in line with Article 27 of the said Convention, which determines that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

 As distinct from the Law “On the Treaties of the Republic of Belarus” as presently in effect, the Law on Treaties does not provide anymore that the legal rules contained in the treaties of the Republic of Belarus shall be a part of the legislation in force in the Republic of Belarus.

 By evaluating this amendment to legal regulation the Constitutional Court proceeds from the following.

 As it is stated in Article 6.2 of the Civil Code of the Republic of Belarus, the civil law rules contained in the treaties of the Republic of Belarus that have entered into force shall be a part of the civil legislation in force in the territory of the Republic of Belarus. Rules similar in content are included in several laws of the Republic of Belarus – the Banking Code (Article 3.2), the Budget Code (Article 3.6) and some others.

 Such understanding of the concept “legislation of the Republic of Belarus” reflects the law-making practice in the state, takes into account the important role and significance of treaties in the legal system of Belarus as directly applicable law. It also obliges the courts, other state bodies and officials to enforce the rules of international law.

 The Constitutional Court notes that together with acts of national legislation –laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, by-laws, the treaties of the Republic of Belarus shall be included in the system of legal regulation that is in effect in the territory of the Republic of Belarus. That means their rules are an integral part of the law in force.

 Taking into account the constitutional value of treaties in the legal system of the country, the Constitutional Court, as it is prescribed in Article 116.4 of the Constitution, shall, on the proposals of the President of the Republic of Belarus, the House of Representatives, the Council of the Republic, the Supreme Court of the Republic of Belarus, the Council of Ministers of the Republic of Belarus deliver judgements on conformity of laws, decrees and edicts of the President not only to the Constitution, but also to international legal acts ratified by the Republic of Belarus.

 Consequently, based on the provisions of Article 7.1, Article 8.1 and Article 21.3 of the Constitution, the Constitutional Court considers that in order to comply with the constitutional principles of the rule of law and legal certainty the legislator, while improving legal regulation, should take into account that the legal rules contained in the ratified treaties are an integral part of the system of law that is in effect in the territory of the Republics Belarus.

 8. The Law on Treaties provides that the rules of law, contained in the ratified treaties of the Republic of Belarus, shall be directly applicable unless otherwise implied by a treaty stating that enforcement of those rules requires a normative legal act to be adopted (issued). Those rules shall have the force of a normative legal act that expresses the consent of the Republic of Belarus to be bound by a relevant treaty (Article 36.2).

 Article 17 of the Law on Treaties lays down the provisions prescribing that the Republic of Belarus may express its consent to be bound by the rules of a treaty by signing the treaty, through exchange of notes, letters and other instruments constituting a treaty, by ratification, approval (acceptance) of the treaty, accession to it, via succession in relation to the treaty (Article 17.1). The consent of the Republic of Belarus to be bound by the treaty may be expressed by any other means provided for by the treaty with observance of the procedure established by this Law for the means of expression of consent of the Republic of Belarus to be bound by the treaty specified in Article 17.1 (Article 17.2).

 The Constitutional Court considers that where the Republic of Belarus expressed its consent to be bound by a treaty neither by adoption (issuance) of a normative legal act on ratification, approval (acceptance) of the treaty, accession to the treaty, nor via succession in relation to the treaty, but through other means – by signing a treaty, through exchange of notes, letters and other instruments which entered into force as from the day when they have been done – those instruments are also a part of the legal regulation in effect in the territory of the Republics Belarus and should therefore be directly applicable. The conflicts of international law with domestic law, in the Constitutional Court opinion, should be eliminated on the basis of the generally recognised principle of international law “pacta sunt servanda” (Article 26 of the Vienna Convention).

 9. The Constitution provides that the Republic of Belarus in conformity with the rules of international law may on a voluntary basis enter interstate formations and withdraw from them (Article 8.2).

 To ensure the operation of interstate formations and other international organisations in accordance with their founding treaties, as well as with the generally recognised rules and principles of international law, bodies of these subjects of international relations are formed and granted certain discretionary powers.

 It is established in Article 37.3 of the Law on Treaties that where a treaty of the Republic of Belarus stipulates that an instrument of the body of an international organisation or an interstate formation, to which the Republic of Belarus is a party, is binding, such instruments should be performed by the Republic of Belarus in good faith in accordance with the treaty terms and (or) international law. They also should be directly applicable where such application is implied by the said instrument and (or) the relevant treaty which application does not require a normative legal act to be adopted (issued).

 The Constitutional Court notes that doing so the legislator ensures proper functioning of interstate formations to which the Republic of Belarus is a party. This approach is based on the provisions of Articles 1.2; 7.1; 7.2; 8.1; 8,2; 59.1 of the Constitution and is consistent with the generally recognised rules and principles of international law, as well as with international legal doctrine.

 At the same time the Constitutional Court reinforces its legal position stated in the Message of the Constitutional Court to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On constitutional legality in the Republic of Belarus in 2013”, according to which openness of the Republic of Belarus for international legal integration enables the transfer of a part of sovereign powers to supranational structures of interstate formations; at that pursuant to the supremacy of the Constitution the sovereign right of the people of Belarus to determine its own way of development may not be limited. Democratic, social and legal nature of the Belarusian state may not be changed and constitutional rights and freedoms of individuals may not be impaired.

 10. Article 31 of the Law on Treaties provides that the treaties of the Republic of Belarus, including those provisionally applied, shall be published in Belarusian and (or) Russian, or the texts of their official translations into Belarusian and (or) Russian shall be published on the National Legal Internet Portal of the Republic of Belarus under the procedure established by legislative acts of the Republic of Belarus.

 Doing so, the legislator has implemented the legal position of the Constitutional Court set forth in its decision of 8 July 2013 “On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” to the Constitution of the Republic of Belarus” – legal uncertainty regarding the publication of the treaties provisionally applied by the Republic of Belarus has been eliminated.

 In that decision the Constitutional Court found it necessary to establish the procedure for official publication of the treaties provisionally applied by the Republic of Belarus. Such treaties, provisionally applied before their entry into force, may contain provisions that directly affect the rights, freedoms and duties of individuals. Therefore they should be performed in the same manner as the treaties that have entered into force, and in view of this should be an integral part of the legal system of the Republic of Belarus.

 The timely and full execution of the Constitutional Court decisions, as it was noted in the Message of the Constitutional Court to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On constitutional legality in the Republic of Belarus in 2017”, contributes to the establishment of constitutional legality, maintenance of the high level of public confidence in justice and functioning of the state authorities, points to the implementation of constitutional guarantees for the protection of everyone’s rights, freedoms and legitimate interests. All of this represents real development of constitutionalism as an integral part of the individual’s legal conscience and legal culture of the society as a whole.

 The Law has been adopted by the House of Representatives of the National Assembly of the Republic of Belarus and approved by the Council of the Republic of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2 and Article 98.1.1 of the Constitution.

 In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the contents of its rules, form of the act, procedure of its adoption and framework of the distribution of powers between state authorities.

 Guided by Article 116.1, Article 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

 RULED:

 1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.

 2. The present Decision shall come into force from the date of adoption.

 3. To publish the present Decision in accordance with the legislation.

Presiding Officer –

Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus