Vnitrostátní platnost mezinárodních smluv, na které se nevztahuje čl. 10 Ústavy

The issue of the transformation of international treaties into domestic law has been accompanied by intense discussion since the Czechoslovak Republic was founded in 1918. The reason has been that the Constitution and constitutional instruments did not contain solutions and adequate provisions. In the end, the legislature accepted the position of the judicature under which an international treaty became a part of the domestic legal order after the Czechoslovak legislator had embodied the contents of such a treaty into the legislation through a special legal instrument. Such an intent on the part of the legislator took various forms. For example, a special statute provided that a certain international treaty, or a previous or consequent treaty of a certain kind, attained the force of law. In the late 1930ʼs, however, we began to see another solution, commonly used in the last decades: a certain statute provided that those provisions of international treaties published in the Collection of Laws which were inconsistent with the domestic law, were valid pending the international operation of the treaty, and thus replaced the domestic law provisions (a new relationship was created of lex generalis and lex specialis). The Constitution of the Czech Republic expressly regulates only the transformation of international treaties on human rights and fundamental freedoms (Art. 10). Other treaties are affected by Art. 52, which states that a treaty, the ratification of which depends upon the consent of the Parliament, shall be declared in order for the treaty to come into force by means stated by law. The Constitution does not deal further with the treaties, which leads to some kind of inconsistency and variability in the legislative practice although the issue of what is and is not apart of the legal order should be principal and fundamental. The importance of the problem is multiplied by the fact that the Constitutional Court does not have the power to review the consistency with the Constitution of the Parliamentary resolutions consenting to the ratification of international treaties (the consent of the Parliament is not given by means of a law). Nor does the Court have the power to review the consistency with the Constitution of the ratification act by the President. The Constitution does not authorize the Constitutional Court to express its opinion concerning the consistency with the Constitution of an international treaty before it is adopted and ratified, if officially asked to do so by the Parliament or the President. Relationships between international law and domestic law are becoming closer and more complex; it is, therefore, not possible to act as if the problems did not exist.