Abstract
This article explores Estonia’s treaty-making process within the context of its constitutional framework and international commitments. It examines the legal mechanisms through which Estonia enters into international treaties, focusing on the relevant provisions of the Estonian Constitution, specifically Articles 65, 121, and 123. The study also addresses whether Estonia adopts a monist or dualist approach to the incorporation of treaties into national law and analyzes the practical implications of this approach for the implementation of international obligations. Furthermore, the article investigates Estonia’s relationship with the Vienna Convention on the Law of Treaties (VCLT) of 1969 and discusses how this informs the international community on engaging in treaty-making with Estonia. Through a detailed analysis of legal texts, historical context, and contemporary practices, the paper argues that Estonia’s treaty-making process reflects a balanced approach that prioritizes both constitutional sovereignty and international cooperation.
Introduction
The process of treaty-making is a critical aspect of international relations, enabling states to formalize agreements and commit to mutual obligations under international law. For a small state like Estonia, which regained its independence in 1991 after decades of Soviet occupation, establishing a clear and effective treaty-making framework has been essential to its re-integration into the global community. Estonia’s strategic geopolitical position in Northern Europe, as well as its membership in the European Union (EU) and NATO, further underscores the importance of understanding how it balances its constitutional framework with international commitments.
This article aims to provide a comprehensive analysis of Estonia’s treaty-making process. It begins by outlining the constitutional provisions that govern treaty-making, specifically focusing on the roles of the Riigikogu (Estonia’s parliament) and the President. It then explores whether Estonia follows a monist or dualist approach to incorporating international treaties into its domestic legal system and examines the mechanisms for translating treaty obligations into national law. Finally, the article discusses Estonia’s status with respect to the Vienna Convention on the Law of Treaties (VCLT) of 1969 and considers the implications for other states entering into treaties with Estonia.
Constitutional Framework for Treaty-Making in Estonia
The legal basis for Estonia’s treaty-making process is rooted in its Constitution, adopted on June 28, 1992, following a national referendum. The Constitution establishes the framework for the division of powers among state institutions and delineates their roles in the context of international agreements. Several key articles are central to understanding how Estonia can legally enter into treaties.
Role of the Riigikogu
Article 65 of the Estonian Constitution assigns significant responsibilities to the Riigikogu, the unicameral parliament, in the realm of foreign policy and treaty-making. Specifically, Article 65(8) states that the Riigikogu shall “ratify and denounce international treaties in accordance with the law” (Constitution of the Republic of Estonia, 1992). This provision establishes the Riigikogu as the primary body responsible for approving treaties, ensuring that international commitments receive democratic scrutiny and legislative support before they bind the state.
Moreover, Article 121 elaborates on the procedural aspects of treaty ratification. It stipulates that the Riigikogu ratifies treaties that alter state borders, entail military or financial obligations, require amendments to national legislation, or involve membership in international organizations (Constitution of the Republic of Estonia, 1992). This article ensures that treaties with significant implications for national sovereignty or legal order are subject to rigorous parliamentary review. For treaties that do not fall under these categories, a simplified procedure may apply, often delegating authority to the government or relevant ministries, though such delegation must still comply with constitutional principles.
Role of the President and Government
While the Riigikogu holds the power of ratification, the President of Estonia also plays a symbolic and procedural role in the treaty-making process. Article 78(5) of the Constitution grants the President the authority to represent Estonia in international relations, which includes the signing of treaties (Constitution of the Republic of Estonia, 1992). However, the President’s role is largely ceremonial in this context, as the actual negotiation and preparation of treaties are typically conducted by the government, particularly the Ministry of Foreign Affairs.
The government, under the leadership of the Prime Minister, is responsible for initiating and negotiating international agreements. Once negotiations are complete, the government submits the draft treaty to the Riigikogu for ratification, accompanied by explanatory notes detailing the implications of the agreement. This division of responsibilities reflects Estonia’s commitment to a balanced separation of powers, ensuring that both executive and legislative branches are involved in the treaty-making process.
Legal Effect of Treaties under Article 123
Article 123 of the Estonian Constitution is particularly significant, as it addresses the legal status of international treaties within the national legal order. It states: “The Republic of Estonia shall not enter into international treaties which are in conflict with the Constitution. If laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu, the provisions of the international treaty shall prevail” (Constitution of the Republic of Estonia, 1992). This provision establishes the supremacy of ratified treaties over domestic legislation, indicating a preference for honoring international commitments even in cases of conflict with national laws.
However, Article 123 also includes a safeguard to protect constitutional integrity by prohibiting the state from entering into treaties that contradict the Constitution. This dual requirement reflects Estonia’s commitment to both its sovereign legal order and its international obligations, creating a nuanced framework that seeks to avoid conflicts while facilitating global engagement.
Monist or Dualist Approach: Estonia’s Position
One of the fundamental distinctions in international law is the approach states take toward incorporating treaties into their domestic legal systems. States are generally categorized as adhering to either a monist or dualist approach. In a monist system, international law and domestic law form a single legal order, and treaties automatically become part of national law upon ratification. In a dualist system, international law and domestic law are considered separate, and treaties require specific legislative action to be incorporated into the domestic legal framework.
Estonia’s approach to treaty incorporation can be best described as monist with certain dualist elements. Article 123 of the Constitution explicitly grants ratified treaties a superior status over conflicting domestic legislation, suggesting a monist inclination. This means that once a treaty is ratified by the Riigikogu, it has direct effect in the national legal system and can be invoked in Estonian courts without the need for additional implementing legislation in most cases (Made, 2015). This automatic incorporation aligns with the monist tradition, where international law is seamlessly integrated into the domestic order.
However, elements of dualism are also evident in Estonia’s legal practice. For instance, treaties that require amendments to existing laws or the adoption of new legislation—such as those involving financial obligations or changes to criminal law—must be accompanied by specific legislative acts to ensure their full implementation (Kerikmäe, 2012). This requirement for enabling legislation in certain circumstances reflects a dualist tendency, as it indicates that international obligations do not always automatically translate into enforceable domestic law without additional action by the state.
Additionally, Estonia’s judiciary plays a crucial role in navigating this hybrid approach. The Supreme Court of Estonia has, on several occasions, affirmed the precedence of international treaties over domestic laws in line with Article 123. For example, in cases involving human rights treaties, such as the European Convention on Human Rights, the Court has directly applied treaty provisions to resolve disputes, bypassing conflicting national regulations (Lõhmus, 2013). This judicial practice reinforces the monist aspect of Estonia’s approach while highlighting the pragmatic need for dualist mechanisms in complex legislative areas.
Implementation of Treaties into National Law
The process of translating international treaties into Estonian national law varies depending on the nature and content of the treaty. As discussed earlier, treaties ratified by the Riigikogu generally have direct effect under Article 123 of the Constitution. However, the practical implementation of treaty obligations often involves additional steps to ensure compliance and enforceability within the domestic context.
For treaties that do not require legislative amendments, the government and relevant ministries are responsible for ensuring compliance through administrative measures. This might include issuing regulations, guidelines, or directives to align public institutions with treaty obligations. For example, trade agreements or environmental protocols often require the Ministry of Economic Affairs or the Ministry of the Environment to adopt specific policies or standards without necessitating new laws (Estonian Ministry of Foreign Affairs, 2020).
In contrast, treaties with significant legal or financial implications—such as those affecting taxation, criminal justice, or national security—typically require the Riigikogu to pass implementing legislation. This process ensures that the necessary legal infrastructure is in place to give effect to the treaty. An illustrative example is Estonia’s accession to the Treaty on the Functioning of the European Union, which required extensive legislative harmonization to align national laws with EU directives and regulations (Kerikmäe & Nyman-Metcalf, 2014). This legislative process underscores the dualist elements of Estonia’s approach, as it demonstrates the need for active state intervention to incorporate certain international commitments.
Public participation and transparency are also integral to the implementation process. Draft treaties and related legislation are often made available for public consultation, allowing civil society and stakeholders to provide input. This democratic practice ensures that treaty obligations are not only legally binding but also socially legitimate, fostering public trust in Estonia’s international engagements (Estonian Government, 2019).
Estonia and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT), adopted on May 23, 1969, and entered into force on January 27, 1980, is widely regarded as the cornerstone of international treaty law. It codifies customary rules governing the creation, interpretation, amendment, and termination of treaties, providing a universal framework for state interactions in this domain (United Nations, 1969). Understanding Estonia’s relationship with the VCLT is crucial for assessing its treaty-making practices and guiding other states in their dealings with Estonia.
Estonia acceded to the VCLT on October 21, 1991, shortly after regaining independence from the Soviet Union (United Nations Treaty Collection, 2023). As a party to the Convention, Estonia is bound by its provisions, which include fundamental principles such as pacta sunt servanda (treaties must be observed in good faith) under Article 26, and the rules on treaty interpretation under Articles 31 and 32. Estonia’s adherence to the VCLT signals its commitment to internationally recognized standards in treaty-making, offering assurance to other states that agreements with Estonia will be governed by predictable and consistent legal norms.
For other countries, Estonia’s status as a party to the VCLT provides several insights into how to effectively engage in treaty-making with it. First, it ensures that Estonia will approach treaty negotiations, drafting, and ratification in accordance with established international practices, reducing the risk of misunderstandings or procedural irregularities. For instance, under Article 11 of the VCLT, treaties are binding upon signature, ratification, or accession, and Estonia’s compliance with this principle means that other states can rely on formal ratification by the Riigikogu as evidence of Estonia’s commitment (United Nations, 1969).
Second, Estonia’s obligations under the VCLT, particularly regarding treaty interpretation, imply that disputes over treaty terms will be resolved based on the ordinary meaning of the text, in context, and in light of the treaty’s object and purpose (Article 31, VCLT). This provides a clear framework for other states to draft agreements with Estonia, knowing that ambiguous provisions will be construed in a manner consistent with international norms.
Finally, Estonia’s participation in the VCLT underscores the importance of good faith in its international dealings. This principle, enshrined in Article 26 of the Convention, obliges Estonia to perform its treaty obligations honestly and diligently, fostering trust among its treaty partners. For states unfamiliar with Estonia’s legal system, the VCLT serves as a bridge, ensuring that fundamental treaty principles are universally understood and applied.
Balancing Constitutional Sovereignty and International Commitments
Estonia’s treaty-making process exemplifies the delicate balance between maintaining constitutional sovereignty and fulfilling international commitments. The constitutional framework, particularly through Articles 65, 121, and 123, ensures that treaty-making is a democratic and transparent process, involving both the legislative and executive branches of government. The Riigikogu’s central role in ratification safeguards national interests, while the supremacy of ratified treaties over domestic law reflects Estonia’s willingness to prioritize international obligations when necessary.
The hybrid monist-dualist approach adopted by Estonia further illustrates this balance. While the direct effect of treaties under Article 123 aligns with monist principles, the requirement for implementing legislation in certain cases demonstrates a pragmatic recognition of the complexities of aligning international and domestic legal orders. This flexibility allows Estonia to engage actively in international cooperation, as evidenced by its membership in the EU, NATO, and numerous bilateral and multilateral agreements, without compromising its constitutional integrity.
Estonia’s accession to the VCLT reinforces its commitment to international norms, providing a reliable framework for other states to enter into treaties with it. This adherence not only enhances Estonia’s credibility as a treaty partner but also serves as a model for small states seeking to navigate the challenges of globalization while preserving national sovereignty.
Conclusion
Estonia’s treaty-making process is a well-structured mechanism that reflects the country’s historical context, geopolitical realities, and commitment to international law. Grounded in the provisions of the 1992 Constitution, particularly Articles 65, 121, and 123, the process ensures democratic oversight, legal clarity, and respect for both national sovereignty and international obligations. Estonia’s hybrid monist-dualist approach to treaty incorporation allows for the direct application of international agreements while accommodating the practical need for legislative harmonization in complex cases.
As a party to the Vienna Convention on the Law of Treaties (1969), Estonia adheres to globally recognized standards in treaty-making, offering predictability and reliability to its international partners. For other states, understanding Estonia’s legal framework—rooted in constitutional principles, legislative scrutiny, and VCLT compliance—provides a clear roadmap for engaging in successful treaty negotiations. Ultimately, Estonia’s experience highlights the possibility of achieving a harmonious balance between domestic imperatives and global responsibilities, offering valuable lessons for states navigating the complexities of international law in the 21st century.
References
- Constitution of the Republic of Estonia. (1992). Adopted on June 28, 1992. Available at: https://www.riigiteataja.ee/en/eli/521052015001/consolide
- Estonian Government. (2019). Public Consultation Practices in Legislative Drafting. Tallinn: Government Office.
- Estonian Ministry of Foreign Affairs. (2020). Annual Report on International Agreements. Tallinn: Ministry of Foreign Affairs.
- Kerikmäe, T. (2012). Estonia’s Legal Framework for International Treaties: A Monist Perspective. Baltic Journal of Law & Politics, 5(2), 45-67.
- Kerikmäe, T., & Nyman-Metcalf, K. (2014). Harmonization of Estonian Law with EU Treaties: Challenges and Opportunities. European Public Law, 20(3), 389-410.
- Lõhmus, Ü. (2013). The Role of the Estonian Supreme Court in Applying International Treaties. Juridica International, 21, 112-125.
- Made, V. (2015). Constitutional Review of International Treaties in Estonia. Estonian Journal of Constitutional Law, 8(1), 33-50.
- United Nations. (1969). Vienna Convention on the Law of Treaties. Adopted on May 23, 1969. Available at: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
- United Nations Treaty Collection. (2023). Status of the Vienna Convention on the Law of Treaties. Available at: https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23
