Thoughts on States’ Functions when applying International and Supranational Law

In fashion, it is well-known that less can be more as Coco Channel stated. The same question arises in constitutional law nowadays with the continuous development of international and supranational law: in front of such a development, what a State can do, less or more, or more or less. Even though, the supremacy of international law and the primacy of European law put international and supranational acts before the national ones, from a constitutional perspective, the question of limits shall always be asked, and the answer demands nuances.

During the last couple of months, the problem, which is obviously in the frontline of constitutional discourse, reappeared in some judicial decisions in a very specific aspect: with regards to the safeguard of national security. In my point of view, the recent decision of the Hungarian Constitutional Court dealing with the question of the conventionality of Hungarian legal provision about refusal of the stateless status for a person whose residence would endanger the national security of Hungary, is one of those.

As a fellow researcher from my University – it was a great pleasure to read his clever lines and see his interest for the topic, even better as I do not agree completely with his critical point of view – has already summarized the case on this blog, there is no need to go in further details about its facts, legal background and the solution given by the Court. I prefer to put the question in a more general perspective, especially, because once again, it has been raised, even though in significantly different contexts and terms, but as we will see, with the same fundamental problem, before other national courts, too.

Among these decisions, one of the most relevant, in my opinion, is the recent judgement of the French State Council (Conseil d’État). In a case about the conformity of French governmental regulations obliging web and communication service providers to preserve in a generalised way individual data about traffic, localisation, and identity of their users, with European Union’s law on data protection, after a preliminary ruling in Luxemburg, the highest French administrative court stated that:

“It is an obligation of the administrative judge to retain the most conform lecture of the interpretation of the Court of Justice of the European Union about obligations resulting of the Union’s law, with constitutional principles … When the application of a European directive or regulation would jeopardize the effective guaranties for the respect of one of such constitutional principles that has no equivalent protection in the Union’s law, the administrative judge, when asked to do so, shall not apply European acts …”.

In the above-mentioned case, the relevant constitutional principle was the one about safeguarding the Nation’s fundamental interests, especially maintaining law and order, and safeguarding national security in the context of fight against terrorism. Those principles are enshrined, according to the Conseil d’État, in French constitutional law, in the Universal Declaration of Human and Citizen Rights (1789). Even though the French administrative judge could find a conform lecture of the European interpretation of Union’s legal acts, we can easily understand the importance of its statements.

Without rushing to conclusions about the constitutional limits of the application of international and supranational law, let’s take a step back. Of course, we sense and understand the delicate approach to the topic made by the Hungarian Constitutional Court solving the problem by qualifying the recently introduced reason of refusal as a procedural one that such as, can be conform with the New York Convention (1954), as well as by the French State Council being reconciling the Court of Justice’s interpretation of the European law with French constitutional principles.

However, as we announced before, there is a more general problem behind those cases – as we see despite the fact that the Hungarian decision was about conventionality and not constitutionality and the French one pronounced in an administrative proceeding not in a constitutional one – about national constitutional framework, and its application with regards to the development of international and supranational law.

If we could believe a couple of decades ago that those questions would have been answered in a comforting way, and even, we could think that the progress of international and supranational cooperation would more and more dominate our legal orders; nowadays, we could realize, especially in the context of crises (migration, terrorism etc.), a certain need and willingness to return to some constitutional bases.

Undoubtably, States are back in time of crises, and with States, constitutional law, let’s at least hope so, as we strongly believe in constitutional States, is also back. The legal construction of modern State has achieved some very important results, and even in the context of the suitable development of international and supranational cooperation, those results should be, in my opinion, preserved.

The basic achievement of national constitutions was certainly due to their capacity to strengthen a national political community. This fundamental function of constitutions with its consequences could and should never be forgotten. But, when doing so, national constitutions were not neutral. On the contrary, they could be an efficient instrument of rebalance, thanks to their high level of social normativity, the equilibrium between public power (potestas) and individual liberty (libertas): enabling the first to act for the public interest and protecting the second at the same time. And they established such an equilibrium with conformity to important choices between political, economic, social, and cultural values with regards to the specific historical context of their political community.

This equilibrium is, most obviously, always fragile. That is the reason why it shall be preserved with strong and effective normative protection. On the one hand, we have the liberty, the rights of the persons to be preserved, on the other hand, we have the public interest, or even, common values to safeguard and to promote. Two essential dimensions appear in the background of national constitutionalism: in a first view, we see the individual interests protected by individual fundamental rights and the public interest for which public power is exercised; as a second dimension, we can contour the protection of individual liberty and equality and the willing to realize common goals and to protect and promote common values.

In those basic constitutional dilemmas where, of course, usually, individual rights, and liberty and equality can be reconciled with public interests and common goals and values, conflicts can also raise, and constitutional law has the essential role to solve those conflicts. Once again, national constitutional law proved itself, during centuries, to be able to solve this kind of conflicts in a well-balanced and as such, pacific way. But what if it is losing its capacity and we are more and more exposed to external legal challenges coming from legal orders without an equivalent capacity of preservation of fundamental equilibrium, especially when choices were not really made about it.

The situation becomes obvious when the most basic principles are fragilized. Law and order such as national security are two of those. It is not by accident that maintaining the first and safeguarding the second are defined, even in the well-developed system of the ever-closer Union’s law, as essential State functions that should be respected by the supranational integration system when exercising its competences, especially the second one remaining the sole responsibility of the States. There can be no political association, or more precisely, no society with Constitution, without the capacity to guarantee those principles.

There is no doubt such doctrinal problems are, and that is quite fortunate, not raised by judicial bodies when interpretating and applying the legal acts, seeking to decide, in our cases, about the question of conformity. The Hungarian Constitutional Court has decided, after the Hungarian National Assembly decided to introduce a new reason of refusal of the claim for stateless status – I would admit in a very strange way as on the one hand, for the above-mentioned reasons, there was no need to do so, and on the other, the legal provision completed was not the best place to put such a procedural reason for refusal – that this new reason is in conformity with the New York Convention.

When it did so, it motivated its decision arguing that the Convention does not bind the States to control from a national security aspect the persons asking for stateless status even when their claim is pending, that stateless persons should be considered as third country citizen, and the lawful residence of third country citizens on the national territory of Hungary is conditioned to the absence of endangerment of national security, that the Convention provides material definition of statelessness which is not excluding procedural exceptions, that there are procedural guaranties to contest the endangerment of national security, finally, that it is for ensuring the compliance of Hungary with its international engagement that a person endangering national security should be not granted with stateless status. Hence when according to a statement of the Secret Service the person claiming stateless status and related protection, endangers national security, the claim can be refused in conformity with the Convention for the procedural exception provided by the national act.

This reasoning seems to be convincing. First, it would be, we would even claim for the use of argumentum ad absurdum, absurd to grant protection for a person who is not entitled to reside on the national territory. Secondly, even the Convention allows the States to expulse persons entitled to stateless status when they endanger national security, by argumentum a maiore ad minus, it would mean that their claim can also be rejected. Third, of course, it does not mean that the person endangering national security but filling otherwise the material conditions defined by the Convention, could not be considered as stateless, it only means that a State whose national security is endangered by its presence, shall not grant the person with the related protection.

For those reasons, the decision of the Hungarian Constitutional Court is, in my opinion, well founded. Even though, there could be some specific questioning about the judicial control of the motivation of the refusal, as for obvious security reasons, the real motives, and the method by which they have been discovered, remain secret, this is usually considered as necessary and in proportion with the constitutionally protected goal to safeguard national security.

If there can be some discourses about the topic, it is more because, one could think that with respect to the Convention – and we could, as we saw, enlarge the spectre to other international and supranational legal acts – a State cannot anymore answer to its basic constitutional function. Once again, general, and abstract thoughts about such challenging and topical questions should certainly not developed by judicial decisions, but by the constitutional doctrine, those questions should, and I am sure, will be more and more discussed so that we can understand in the most possibly comprehensive way where our States should be more and where, because of the international and supranational legal achievements, should be less present.

Péter KRUZSLICZ (PhD in law and political sciences) graduated at the Faculty of Law and Political Sciences of the University of Szeged, and got a Master degree in European Law at the Faculty of Law of the University Jean Moulin Lyon 3. He is a lecturer at the University of Szeged in comparative constitutional law and European law. His research focuses on the relations between national constitutional law and European laws in different aspects.