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Section 6. International law
DOI: http://dx.doi.org/10.20534/EJLPS-17-1-31-35
Ligaj Lindita, University College Pavaresia Vlore, PhD., candidate in Law, the Faculty of Economics and Scial Science E-mail: lindita.licaj@unipavaresia.edu.al
Atird Hoxha, Advocate
E-mail: atird.hoxha@yahoo.it
The role of the international agreement on law sources in the Republic of Albania
Abstract: The purpose of this study is to show the importance of the international agreement on the sources of law in the Republic of Albania. How has changed the importance of the international agreement on the constitutional changes over the years.
Keywords: international agreement, law sources, constitutional changes.
This subject has been chosen to demonstrate either bilateral or multilateral. International agree-the great importance of the international law as part ment is the instrument drafted by the public interna-of the obligative law to be implemented in Albania, tional law concluded between the state institutions of and as another tool used, which is the international the Republic of Albania and other countries or interagreement, as well as the approach that the constitu- national organizations, regardless of the form and its tion has made to the international agreement as one denomination [1]. Denominations of international of law resources. The method used for this work is agreements are various, we see them as a treaty, qualitative research based on constitutional changes convention, pact, protocol, declaration, charter, etc. over the years, comparing the constitutions estab- But regardless of denominations the legal value and lished in the Republic of Albania in order to show enforcement remains the same. States which sign the role of the international agreement as a imple- the treaty do not include any firm requirement for mentation mechanism of international lawof our labeling the international agreements at the time of legal system. signing off international agreements [2, 358].
International law has a substantial impact in our If we refer to the role of agreements in historical
domestic law, that even for the fact that us being part chronology as resources of law and constitutional
of the civil law legal family have unified the right arrangements we see that in the 1950As [3] constitu-
with other countries that are part of this legal fam- tion in article 58/9 was determined the obligation of
ily, but not only. The international agreement itself is signing and ratifying international agreements by the
an accord signed by two or more countries to make Presidium of the National Assembly. This compe-
possible the creation, modification or termination of tence belonged to the People's Assembly Presidium
a legal relationship in the interstate or international and only in special cases ratification and denounce-
arena. International agreements being concluded ment could be conducted by the National Assem-
between states and international organizations are bly. Since the the first creation of the constitution
according to the concept of its sister Constitutions, the Constitution of the People's Republic of Albania provided this legal tool to cooperate with other countries although Albania's collaborations were too few. In the 1976As [4] constitution in Article 67 it was determined that the body that had the right to ratify international agreements was the Assembly. The Assembly ratifies and denounces international treaties of special importance. An innovation for this constitution, different from the past one was the possibility that was given to the Council of Ministers to sign international agreements. In Article 81 of the 1976's Constitution was stipulated that the Council of Ministers concludes international agreements, approves and denounces those that are not subject to ratification. Law No. 7491, dated 29.4.1991 "For the Main Constitutional Provisions" in Article 4 is determined that the Republic ofAlbania recognizes and guarantees human rights and fundamental freedoms, national minorities, recognized in international documents, which clearly show the readiness ofAlbania to conclude international agreements. Article 8 stipulates that the legislation of the Republic of Albania considers, recognizes and respects the principles and generally accepted norms of international law, this means that the norms of the international law are provided in the numerous international treaties and the agreement itself is a resource of the interantional law. Article 16/5 determines the competences of the Assembly of the Republic Albania to ratify and denounce: Treaties of a political nature; Treaties or agreements of a military character; Treaties or agreements dealing with the borders of the Republic of Albania; Treaties or agreements relating to the rights and duties of citizens; Treaties that derive financial obligations to the state; Treaties or agreements which derive changes in legislation; Treaties or other agreements which foresee that their ratification or denunciation is done by the National Assembly. On the 1998's Constitution the international law and international agreement finds a new approach.
Republic ofAlbania in its system of law resources has categorized the law resources following the criteria of hierarchy where the first resource prevails over the second and stands in a superior relation as compared to the resource of a lower rank. In The Consti-
tution of the Republic of Albania (Article 116) are provided normative acts with general power on the Republic ofAlbanian, as follows:
• Constitution.
• International agreements ratified by law;
• Laws;
• Other acts of the Council of Ministers and the acts of the municipal councils or local authorities.
So our own constitution approved in 1998 as first resource after itself, ranks the international agreements ratified by law, giving it a greater importance and making the international law part of the legal system in the Republic ofAlbania. Modern constitutions around the world today regulatein the best way relations between domestic law and international law, redefining the procedures to ensure the compatibility between the norms of the two ranks [5, 50]. In the same way the Constitution of the Republic ofAlbania determines the position, the importance and applicability of international law and the resource of international law itself, the international agreement. Right in the beginning of the first part of the Constitution in Article 5 it provides the international law required to be applied, and one of the mechanisms to implement directly the international law is the signing and ratification of different international agreements by immediately applying them. But this means not only the implementation of the agreements but also the implementation of the international customary norms, as well as the general principles of international law. In the right's resources system the role of the agreements is very important because particular parts of the constitution provide specific international agreement for the regulation of specific institutes of the right. Referring to the constitution of the Republic ofAlbania, we can distinguish two types of international agreements. By the way that they become part of the albanian legal order, they are divided into two major groups:
• international agreements ratified by the Parliament
• international agreements signed by the government of the albanian state.
This group has been created taking into account the moment of entry into force and the ratification of the international agreement. International agreements ratified by the parliament have a different pro-
cedure of entry into force and becoming part of our legal order. Referring to Law no. 43/2016 "On international agreements of the Republic of Albania" in Article 5 is stipulated that the defined subjects may conclude international agreements on behalf of the Republic of Albania or on behalf of the Council of Ministers.
Given the importance the Parliament will sign and ratify international agreements that are determined in the constitution in Article 121/1, agreements which foresee legal norms concerning
• territory, peace, alliances, political and military issues; In terms of this international agreement are included all international agreements which provide for the delegation of the state sovereignty of the Albanian state, military collaboration or even political collaborations with other states. Mentioning here the North Atlantic Organisation which Albania acceded in 2009. Albania became a member of the Organization of the North Atlantic Treaty NATO, after the completion of ratification of the Protocol of Accession by all the allied countries and the deposit of the instrument of accession to NATO, to the Department of State, which is the legal holder of the Washington Treaty. Another case is the United Nations Convention on the Law of the Sea, Montego Bay, 10.12.1982 where the effective date for Albania is June 23, 2003. And many other agreements of this nature [6].
• rights and freedoms and obligations of citizens. The entirety of the rights and freedoms provided by the Constitution of the Republic of Albania in the catalog of rights and freedoms: rights and personal freedoms, civil and political rights and freedoms and the social economical and cultural rights and freedoms are guaranteed by the constitution of the Republic ofAlbania. These include a large number of international agreements signed between Albania and the UN and between the Council of Europe. We can mention a special case here to show the importance of the international agreement in our legal system, the case of the European Convention on Human Rights (ECHR) [7].
In The Constitution approved in 1998 it's foreseen in Article 17 the importance of the European Convention of basic human rights, anticipating that the limitations of human rights on fundamental
rights and freedoms can never have more severe restrictions than those predicted by ECHR. In this way the constitution shows a clear position of the ECHR by placing it on par with itself. The fact that the clearly defined position of the ECHR in the constitution shows that its implementation has the same weight with our own consitution. • Republic of Albania's membership in international organizations; Here we can mention international accession agreements frequently appointed as declaration, treaty, Convention etc. Albania through this kind of international treaty has joined the United Nations Organization (UN), Council of Europe (CoE), etc. • assumption of financial liabilities from the Republic of Albania; • Constitution has foresight even other cases that the Assembly by a majority of all its members, can ratify other international agreements that are not contemplated in the above cases.
Law no. 43/2016 "On international agreements of the Republic ofAlbania" in Article 17 is provided the procedure of ratification of the international agreement by the Parliament of the Republic of Albania. Ratification that absolutely entails the emergence of a law. Ratification as a legal act that shows the consent of the Republic of Albania to be bound by an international agreement signed earlier by it, finalizes the obligation of the Albanian state in front of other international subjects with which it signs the agreement and enabling entry into force of the international agreement and making it applicable in our legal system. When we say ratification in the concept of law no. 43/2016 "On international agreements of the Republic of Albania" we have determined the entry into force. All other agreements which do not require ratification will enter into force and become available to be applied at the moment of signing the international agreement.
The second type provides for the signing of international agreements by the government and the obligation to notify the council for international agreements signed on behalf of the Albanian government. The announcement carried by the prime minister serves as information on international relations created by the government taking the consensus of Parliament of the Republic ofAlbania, but not only, because it is also considerded a control filter for the government in its activity in the international arena.
We can mention here the numerous cooperation agreements in the field of politics, education and cultural, which enter into force through the Council of Ministers decision.
Ratification or not of the international agreement, so regardless of the way of becoming part of our legal system, it, as one of the main resources of law in Albania has a direct impact on every development or social crisis in our society.
Its impact on the legal system it's reminded in the moment that it becomes a mandatory part to implement in our legal order. The legal order itself being a people's relationship in a society is expressed and sanctioned on the rights, so on the legal norms. Part of these standards are also the rules of conduct forth set on international agreements applicable in the Republic of Albania, for the fact that the international agreement based on the constitution of the Republic of Albania is part of normative acts with general power in the Republic of Albania. Legal order is divided into two elements, the first element is normative and includes the rules of conduct and the second element is factual comprising actual concrete behavior, material that is made according to norms [10, 193]. Given that social interaction are dynamic, we say that the legal norms that regulate these social relationship are also dynamic, namely its legal order is not static, as a result, international agreements always regulate the interstate relations in order to serve the interstate relations born case by case.
The doctrine of international law groups the treaties in two big groups taking into account the type and importance of norms that prescribe behavioral rules for the subjects that sign the treaty. The doctrine divides them into laws treaties and contract treaties [8, 372]. This division makes no difference in the way of signing or ratification or applicability, but it differentiates an international agreement by the character of legal norms provided, whether they are legal norms with general or specific character. Law treaties as well as contract treaties have the same way of ratification by the Parliment of the Republic of Albania, as far as the determined cases predicted by the constitution of the Republic of Albania Article 121/1.
An important element of the international agreement to be part of the Albanian legal system is its
applicability. Depending on the applicability or their entring into force the international agreements are applicable or not. In the case of self-executing they do not necessarily require to pass a law to enter into force these agreement, in the second case the applicability is related to passing a specific law of in order to make possible entry into force of the international agreement. Entry into force of international agreements in the Republic of Albania is realized following the same procedures as for other laws, according to Article 117/3 provided in the Constitution of the Republic ofAlbania. The ratified law is published in the Official Journal together with the agreement in Albanian language, identical in content and meaning with the authentic document. Self-execution of an agreement is discussed when that agreement is not ratified by law. International agreements in the interior of their content do not determine whether the agreement is self-executive or not. Self-execution of agreements is regulated in the constitution or in the constitutional right of each country. Self-execution is a matter to be determined by the domestic courts whenever they're addressed alleged violations of individual rights, or when faced with the difficult case to determine whether national legislation, which a judge applies on a daily basis and which is very familiar, violates or does not comply with an international norm [9]. The number of international agreements signed and ratified by the Republic of Albania is significant, this because of the numerous developments of the Albanian state, but also because of the cooperation in different areas with other countries, in order to have a political, economical, cultural, technological development etc.
Today any interstate relations are regulated with international agreements, relevant to political or financial crises they disappear in the moment that countries cooperate with each other and the main tool in imposing their own reciprocal obligations is the international agreement itself. The function that has been known to the international agreements as appraising the law, manages to unify the right of a group of states as well as to put stability in regional or even global developments.
The international agreement serves to establish obligations between the parties that sign it. The reasons for signing an agreement can be various,
whether to establish stability and peace, to finalize a state of war or even to develop cooparation in different areas. As long as the relations between states are connected to each other, the agreement will serve as a connecting bridge between these countries. In times of crisis or development the agreement brings minimization or termination of crisis or otherwise brings further development. It necessarily becomes the means that makes an adjustment to the domestic legal system of a country to cope with the regional or international changes.
Conclusions
International agreements signed by the Republic ofAlbania as part of law resources in Albania have a direct impact on our legal system. Because of their position located below the Constitution and above the laws approved by the Assembly they apply immediately if ratified with a law by parliament. Unlike the international agreements signed on behalf of the Republic of Albania, the international agreements signed by the Council of Ministers of the Republic ofAlbania are self-executing and do not require as a liability to be applied passing of a special law. Ratification or not of the international agreement, so regardless of the way of becoming part of our legal system, it, as one of the main resources of law in Albania has a direct impact on every development or social crisis in our society.International agreements in the Republic of Albania will enter into force with the
same procedure as well as to other laws provided for under Article 117/3 of the Constitution of the Republic ofAlbania. The ratified law is published in the Official Journal together with the agreement in Albanian language, identical in content and meaning with the authentic document.
As a legal tool to make possible the implementation of international law in our domestic law the constitutions adopted in the Republic of Albania, from the first Constitution of 1950 up to the constitutional amendments of 2016 have absolutely accepted its importance. This is due to the fact that they have foreseen the signing of international agreements by the constitutional institutions such as People's Assembly Presidium, the President, the Council of Ministers by expressly providing it in the fundamental law, the constitution.
International agreement as appraising the law manages to unify the right of a group of countries and to put stability in regional or global developments, and also on the case of the development of Albania.The number of international agreements signed and ratified by the Republic of Albania is significant, this because of the numerous developments of the Albanian state, but also because of the cooperation in different areas with other countries, in order to have a political, economical, cultural, technological development, shows the absolute importance of international agreements for our society.
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