Judgment No.14 of 02.05.2017

Judgment on the interpretation of article 11 of the constitution


Type of judgment: interpretation of the Republic of MoldovaConstitution

Provision: Interpretation of the Constitution

Files:
1.  en-Judgment-142017neutralityengfinalrectificat-230620177d380.pdf


Complaints:

1.  ( 26.05.2014)



1.    The case originated in the complaint lodged with the Constitutional Court on 26 May 2014 under Article 135 para.(1) p.b) of the Constitution, Article 4 para.(1) p.b), Article 25 p.g) of the Law on the Constitutional Court and Article 4 para.(1) p.b), Article 38 para.(1) p.g) of the Code of Constitutional Jurisdiction by the MPs Mihai Ghimpu, Valeriu Munteanu, Gheorghe Brega and Corina Fusu on the interpretation of Article 11 of the Constitution, which reads as follows:

"(1) The Republic of Moldova proclaims its permanent neutrality.

(2) The Republic of Moldova does not admit the stationing of any foreign military     troops on its territory."

2.    The author of the complaint asked the Constitutional Court to interpret Article 11 of the Constitution and thereby to explain whether:

"1.  The provisions of Art. 11 of the Constitution is applicable, considering that following the adoption and entering into force of the Constitution, on the territory of the Republic of Moldova there were deployed military troops of another state, these provisions thus being deemed null and void ab initio?

2.  Considering the raison d,être of the state the Republic of Moldova, is it admissible any derogation from the principle of permanent neutrality enshrined in Article 11 of the Constitution, in case the perpetuation of neutrality may lead to the state being dismantled or even to its disappearance?

3.  The deployment on the territory of the Republic of Moldova of military troops of a group of states or under an international warrant is in breach of Article 11 of the Constitution?"

3. By the Decision of the Constitutional Court of 10 September 2014, the complaint was declared admissible, without prejudicing the merits of the case.

While examining the complaint, the Constitutional Court requested the opinions of the Parliament, of the Presidency, of the Government, as well as other information from the Ministry of Foreign Affairs and European Integration.

133. Relevant provisions of the Constitution (M.O. 1994, no.1) are the following:


Article 1

The State of the Republic of Moldova

"[...]

(3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed.


Article 3

Territory


"(1) The territory of the Republic of Moldova is inalienable.

(2) The borders of the country are sanctioned by an organic law, subject to the unanimously recognized principles and norms of international law."


Article 8

Observance of International Law and International Treaties

"(1) The Republic of Moldova commits to observe the Charter of the United Nations and the treaties to which it is a party, to ground its relationships with other states on the unanimously recognized principles and norms of international law.

(2) The coming into force of an international treaty containing provisions which are contrary to the Constitution shall be preceded by a revision of the latter. "


Article 11

The Republic of Moldova - a Neutral State

"(1) The Republic of Moldova proclaims its permanent neutrality.

(2) The Republic of Moldova does not admit the stationing of any foreign military troops on its territory."

1. In the meaning of Article 11 of the Constitution corroborated with Article 1 para.(1), Article 3 and Article 8 of the Constitution:

-    the military occupation of a part of the territory of the Republic of Moldova at the moment of declaring neutrality, as well as the lack of international recognition and guarantees of this status, do not affect the validity of constitutional provisions on neutrality;

-    in the event of any threats to constitutional fundamental values, as well as national independence, territorial integrity or state security, the authorities of the Republic of Moldova are obliged to take all necessary measures, including military that would allow it to efficiently defend against these threats;

-    stationing of any military troops or bases on the territory of the Republic of Moldova, managed and controlled by foreign states, is unconstitutional;

-    the participation of the Republic of Moldova in collective security systems, such as the United Nations security system, peacekeeping operations, humanitarian operations, etc., which would impose collective sanctions against aggressors and international law offenders, is not in contradiction with the neutrality status.

2. This decision is final, cannot be subject to any appeal and enters into force on the date of adoption. It shall be published in the Official Journal of the Republic of Moldova.

3.1. Fundamental principles  

 

1) The Law of Neutrality  

159. Neutrality is a complex concept in international law and in politics, which basically means that such a state does not participate in wars between other states. 

160. The rights and obligations of belligerents and those of neutral states in times of an armed conflict are governed by the law of neutrality. The law of neutrality was transformed in the 19th century into a customary law and was codified in part in two conventions signed on October 18, 1907 at The Second Hague Peace Conference:

  • The Fifth Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land;
  • The Thirteenth Convention concerning the Rights and Duties of Neutral Powers in Naval War.

161. The law of neutrality confers a certain number of rights to a neutral state. For example, it prohibits any attack on the territory of the neutral state by belligerents, or the passage of any troops, munitions or provisions through its territory. The neutral state is also entitled to free movement of its economic goods and its nationals are free to trade on land and by sea with any other state, whether belligerent or not. On the other hand, the law of neutrality also imposes certain obligations on the neutral state. It is not permitted to play any direct part in armed conflicts or to assist belligerents by furnishing them with troops or arms. It is forbidden to place its territory at the disposal of belligerents for military purposes, whether to install operational bases, to move troops through it, or nowadays even to overfly it. The neutral state is obliged to ensure the inviolability of its territory with a suitably equipped army.

162. The law of neutrality does not impose any further conditions limiting the foreign policy of a neutral state, neither does it define the peacetime position of a permanently neutral state. In particular, traditional practice and doctrine have not prevented neutral states from collaborating with foreign military authorities to prepare joint defence measures. Similarly, a state that has proclaimed itself permanently neutral is under no obligation to extend its neutrality to the political, ideological or economic realms (see The White Paper on Neutrality, Annex to the Report on Swiss Foreign Policy for the Nineties of 29 November 1993).

163. The law of neutrality grants great freedom of action, and limits the political decision-making of the state only to a very small extent. Neutrality is not an institution that determines the overall conduct of foreign policy; rather, it is a status under public international law whose narrow essential content leaves great latitude for formulation of a foreign policy adapted to the needs of the moment and one which, in practice, has to be constantly developed to meet changes in the international political scene. The only unchanging principle inherent in neutrality is nonparticipation by a state in armed conflicts between other states.

164. The rights of a neutral state may be summarised as follows:

- The right to independence, sovereignty and territorial integrity, which are ensured through suitable means in accordance with the principles applied by international community.  

- A permanently neutral state enjoys the rights that follow from its international personality (the right to be a party in treaties, to participate in international conferences).

- The neutral state is entitled to protect its nationals on the territory of belligerent states.

- The neutral state has the right to the observance of its goods.

- A permanently neutral state will actively support the efforts of international community in the field of disarmament, confidence building, and interstate cooperation. In this regard, the neutral states are entitled to participate in the activities of international organisations to ensure collective security of states. Therefore, a state with permanent neutrality is entitled to become a party of defensive alliances, when it is under attack. The participation of neutral states in such alliances under certain conditions, may become a guarantee of their security and territorial inviolability. At the same time, a permanently neutral state is not entitled to become a member of an international organisation with goals and principles which are in breach of its status.

- The right to legitimate defence (individual and collective) against an armed attack directed to the sovereignty and territorial integrity of the state.

- A neutral state is entitled to take part in peacekeeping operations conducted by international organisations. The practice shows that the neutral states participate actively in such types of operations.

 

2) Neutrality as an instrument adapted to defend national interests  

 

165. Historically, neutrality has never been a rigid, fixed and unchanging institution, neither in its content, nor in its duration. On the contrary, the states have adapted neutrality to international requirements and their own interests. The periods of active involvement in foreign policy of the states alternate with more reserved periods of involvement in their foreign policy.

166. Neutrality describes the position of a state in a war involving other states. Neutrality is thus defined in relation to tensions and military conflicts, i.e. in relation to basic forms of insecurity. It is essentially in this context that it has a function as a foreign and security policy maxim. Such a status is appropriate when antagonistic states or blocs oppose each other and the country in question fears the outbreak of military conflicts in which it may become involved and have to defend itself on its own.    

167. Neutrality should continue as a foreign and security policy instrument, as long as it remains more appropriate than other instruments to safeguard national interests.

 

3) Neutrality and security  

 

168. In view of the number of interdependent challenges of the final decade of the 20th century and beginning of the 21st century, neutrality cannot be understood as a position of passivity and isolation. Solidarity has always been a determining maxim in the current collective security system, because in many fields, the individual interests of the states can be achieved only through the availability to share international responsibilities and to participate in solving international issues and to take part in international decision-making. The interests of the states can be satisfied only through global solidarity, cooperation and participation at regional and global level.

169. With the end of the Cold War, different types of dangers have come to the fore, some unexpected, some forgotten: regional conflicts within East European countries sparked by nationalism, minority problems, secessionist aspirations or border disputes, wars raging outside Europe with implications for our continent, coercion with weapons of mass destruction or equally effective conventional weapons, terrorism, mass migration and waves of refugees, destruction of the environment, and disasters.

170. Since joint efforts are necessary to combat these threats, these cannot be addressed through national measures, but only through international cooperation, especially through joint actions at European level. Such defence requires a multinational approach.

171. The same is valid for the creation of efficient preventive instruments and restriction of regional conflicts that threaten European stability and security.

172. If neutrality meant prohibition of cooperation with other states in the field of security policy, it would have represented a dangerous obstacle for international measures that refer to the elimination of these threats.  

173. Any country that does not participate in international security cooperation, it risks to be isolated. Such a country would not be a respected and equal partner in Europe. In case of a threat, it might not be able to rely on solidarity and support from its partners and it would become particularly vulnerable to certain dangers.

174. The law of neutrality, developed from the beginning of the past century, refers to the behaviour of neutral states in case of war and does not mention preventive defence measures during peace. Insofar as the arms have evolved at the end of last century, and we cannot ensure our defence except through cooperation with other countries in certain fields, this cooperation (provided it does not exceed certain limits) shall be considered compatible with the spirit of neutrality. This applies even more, given a neutral state is not only entitled, but also obliged to take military precaution measures that can be requested reasonably to be able to defend efficiently against possible attacks.


3.2. The practice of other states  


175.  As a political option, some states have declared, by different internal documents, their status of permanent neutrality.  

Switzerland. The status has been established since 1815 by the Act on the Neutrality of Switzerland, reconfirmed by Art.435 of the Versailles Treaty.

Luxemburg. Its neutrality ceased to be guaranteed by the Versailles Treaty, but was unilaterally maintained until the Luxemburg territory was invaded by Germany in 1940.

Austria. Austria declared permanent neutrality to force the withdrawal of occupation troops in an internal law in 1954, which entered into force on 5 November 1955, after the State Treaty between Austria and 4 great powers (England, France, the USSR and the USA) was signed on 5 May 1955 and joined the UN in the same year.

Malta. Declared unilaterally its permanent neutrality, and the European states took note of this declaration in the Concluding Document of Madrid Meeting in 1983 of the Conference on Security and Cooperation in Europe.

Laos. Its permanent neutrality was established by the Government Declaration of 9 July 1962 and by the Declaration on the Neutrality of Laos of 23 July 1962, Geneva.

Cambodia. The neutrality of Cambodia was established by a constitutional law on 12 January 1957, defined by the Prince Norodom Sihanouk as an expression of international policy. According to the principle of neutrality, Cambodia was not to undertake any aggression against a foreign state, but if it becomes a victim of an attack, it reserves the right to defend itself, to call upon the United Nations, as its member, or to a greater power with which it is in good relations.   

A separated case is Turkmenistan, a new state that emerged as a result of the USSR disintegration. It decided in an internal law that it will have permanent neutrality, which was recognised by the General Assembly in 1995 and asked the UN member states to respect and support it.

176. In order to be effectively enforceable internationally, some states obtained the recognition through multilateral acts and international guarantees of neutrality (Austria and Laos cases).


3.3. The application of the abovementioned principles in this case  


177. Neutrality refers to foreign policy and security of the State. The neutrality of the Republic of Moldova is closely related to its historical background; the military occupation of its Eastern area was a determinant factor in proclaiming its neutrality in the Constitution. From a historical and constitutional point of view, neutrality has never been a goal in itself, but rather an instrument among many others that would allow the Republic of Moldova to meet its true objectives, among which the withdrawal of foreign troops from its territory, consolidation of its independence and restoration of its territorial integrity.

178. According to Article 11 of the Constitution, there are two distinctive characteristics of the permanent neutrality instrument of the Republic of Moldova. First, permanent neutrality means that the Republic of Moldova commits itself to stay neutral in any present or future conflict, irrespective of the identity of the belligerents, location and its onset. Second, the neutrality of the Republic of Moldova means that the Republic of Moldova does not admit the stationing of foreign military troops on its territory. This, however, does not impede the Republic of Moldova to make use of all its means to defend itself militarily against any aggressor and to prevent any act that is incompatible with its neutrality, which may be committed by the belligerents on its territory.

179. The Republic of Moldova included the status of neutrality in the Constitution without requesting its confirmation by the UN. Actually, no state has recognised the neutrality of the Republic of Moldova and there are no international guarantees of this status (as in the case of Austria). The military occupation of a part of the territory of the Republic of Moldova when the neutrality was declared, as well as lack of international recognition and guarantees of this status, do not affect the validity of constitutional provisions on neutrality.  

180. Article 11 of the Constitution stipulates that the "Republic of Moldova proclaims its permanent neutrality". Although the second paragraph of the article specifies that the "Republic of Moldova does not admit the stationing of any foreign military troops on its territory", since the Soviet occupation of the present territory of the Republic of Moldova (1944-1991) until now, in the Eastern part of the country there are still stationed occupation troops of the Russian Federation. Practically, the Soviet/Russian occupation has never stopped in the Eastern part of the country, although the independence of the Republic of Moldova has been proclaimed. The Russian Federation has recognised it, but withdrew its army only from the western part of the Moldovan territory (11% of the territory of the Republic of Moldova is still under occupation).

181. Hence, the fact that the Russian Federation did not withdraw its occupation troops from the Eastern region of the country, but on the contrary, has consolidated its military presence in the Transnistrian region of the Republic of Moldova, this constitutes a violation of constitutional provisions regarding the independence, sovereignty, territorial integrity and permanent neutrality of the Republic of Moldova, as well as of international law. 

182. Neutrality and independence are interdependent: the independence is both what neutrality seeks to protect and, given the state has to make decisions freely, it is a sine qua non condition of neutrality. To show credibility, a permanently neutral state has to prove a sufficient degree of real independence from other states. Only then will it be able to resist pressures during crisis and meet its obligations as neutral state.

183. The Court notes that inasmuch the Republic of Moldova remains under military occupation, the more relative are rendered its independence and autonomy, which are required by the status of neutrality.

184. The law of neutrality does not impose additional conditions that would limit the foreign policy of a neutral state nor it defines the position during peace of a permanently neutral state. The only unchanging principle of neutrality is the non-participation of a state in armed conflicts between other states. 

185. The Court notes that the purpose of every security policy should be the security at four levels: individual (citizens), collective (associations of interest), national (State) and international (foreign environment). It implies a continuous adjustment of the national security system to the foreign and domestic environment in order to face the new challenges and security issues at all five levels: political, military, economic, ecological and social, including: individual, cultural, energy, food, informational, communications, telecommunications, resources, etc.

186. The security of the Republic of Moldova should be ensured considering the geopolitical factors that exercise their influence in the South-Eastern European region and directly on the State.

187. Ensuring security and national defence means that the national interest may not be sacrificed in favour of another state, group of states or international organisations and in case of attacks against the components of its security, the State may keep them, including with the support of national and international armed forces.  

188. The Court notes that the Constitution is not a suicide pact. Hence, if there is any threat against fundamental constitutional values, such as national independence, the territorial integrity or the security of the state, the authorities of the Republic of Moldova are under the obligation to take all the necessary measures, including military to defend itself efficiently. 

189. Moreover, under the conditions of more and more obvious independent limited capacities of defence, an increased international cooperation, both bilateral and multilateral, is imperative.

190. It is obvious that neutrality does not constitute an obstacle in the defence policy of the Republic of Moldova. A too narrow interpretation, limiting very much the defence possibilities, would be a handicap for our country and its citizens. The purpose of neutrality is to enhance the security of the country and not to limit its defence capacity.

191. If the Republic of Moldova is not capable to defend itself against threats, it should adapt its current security and defence policy to the new circumstances.

192. Moreover, neutrality cannot be applied to the aggressor, as the state cannot abstain when it is aggressed. Neutrality creates special rights and obligations, which as a rule, do not exist during peace times and which end with the conclusion of hostilities or when the war starts between a neutral state and one of the belligerents. The neutral state enjoys the right to legitimate defence (individual and collective) against an armed attack targeting the sovereignty and territorial integrity of the state. 

193. Along the same line, article 51 of the Charter of the United Nations provides the following: ,Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security,.

194. The Constitutional Court notes that the provisions of the Constitution imply that the independence and security of the State may be ensured, including with the use of armed forces, both nationally and internationally. According to the Constitution (provisions of Article 8), while considering the limits and interdictions enshrined in the Fundamental Law, the international treaties of the Republic of Moldova and laws adopted to implement these treaties may provide for different measures in order to ensure the independence and security of the state internationally, inter alia, measures of collective international defence and/or other joint measures, peacekeeping and international security measures, other international military cooperation measures, with constitutionally clear and reasoned bases, goals and character.    

195. One of the commitments of the Republic of Moldova in ensuring the security of the state and its independence was assumed by accession to the United Nations. In this context, the UN asks its members to ,take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace" (para.1, Art. 1 of the UN Charter). Also, no UN member may shirk its obligations under this Charter, except for cases when it is exempted by the Security Council.  Article 2 of the UN Charter provides that ,all Members [...] shall fulfil in good faith the obligations assumed by them in accordance with the present Charter,, and Article 25 stipulates the commitment of the Members of the United Nations to agree to accept and carry out the decisions of the Security Council in accordance with the present Charter, because the Security Council is conferred the primary responsibility for the maintenance of international peace and security (Art. 24).

196. In accordance with the provisions of Articles 41 and 42 of the Charter, the Member States of the United Nations, by decision of the Security Council, shall participate in non-military and military sanctions. The State shall authorise on its territory the actions decided by the Security Council based on Chapter VII of the Charter, including the rights of passage that shall be provided by the State to implement the sanctions against the aggressor (art. 43 of the Charter). These cannot be considered war actions in the meaning of international law, but are police actions towards the states that are guilty of violating the international law and hence, are not covered by the law of neutrality, being considered compatible with a collective security system.

197. Also, in accordance with Article 51 of the Charter, member states of the UN may assist the victim of aggression by informing the Security Council on the undertaken measures. 

198. The main task of the security policy of a state is to eliminate structural causes of potential violent conflicts. The specific instruments to avoid conflicts include among others: preventive diplomacy, early detection and timely actions, peaceful conflict settlement, but also the threat of imposing sanctions, disarmament and building military confidence. Crisis management and conflict prevention may take place within the European Union, NATO and OSCE partnerships.

199. Modern neutrality does not exclude cooperation with military alliance members to consolidate the defence capacity of the Republic of Moldova, as long as they can agree on the key issues. In this partnership context, the peacekeeping operations are perfectly consistent with neutrality. Neutral states, such as Austria, participate actively in the EU crisis management tasks, in accordance with the Lisbon Treaty. Also, Austria cooperates closely with NATO in important and necessary fields, such as crisis management, humanitarian or peacekeeping operations.

200. Similarly, the new National Security Strategy of the Republic of Moldova approved by the Parliament on 15 July 2011 provides that in the context of security of the Republic of Moldova, an important role resides with the participation in global, regional and sub-regional efforts of promoting stability and international security through cooperation within the UN, OSCE, NATO and other international organisations, as well as participation in missions of The Common Security and Defence Policy of the EU (CSDP).

201. The Strategy provides that the national security of the Republic of Moldova may not be conceived outside the European security context and that within the integration efforts, a special attention should be paid to enhance cooperation with the EU within CFSP and CSDP, directed towards the consolidation of national and regional security.


II. Interdiction on the stationing of military troops of other states


202. The provisions of Article 11 of the Constitution, according to which no foreign military bases can be stationed on the territory of the Republic of Moldova, inter alia, means that no military bases managed and controlled by foreign states can be located on the territory of the Republic of Moldova.

203. The adequate implementation of imperatives that result from territorial integrity and state security is a constitutional priority of foreign and security policy of the Republic of Moldova. Furthermore, this is applicable to the need to apply the European standards on human rights and freedoms, the duty to ensure the development of national defence system in accordance with the needs of the defence system, including the collective one and also to ensure corresponding defence expenditures for such a development. The identification of maximum and indispensable security guarantees and the insurance of constitutional democratic order, although not mentioned directly in the Constitution, bear an intrinsic ,constitutional value,. Without such an imperative, obviously, the Constitution as a public pact would be deprived of value, and the state would not be considered a common good for the entire society. Therefore, ensuring the security imperative, independence and constitutional democratic order is also a constitutional value.

204. Article 11 of the Constitution should be seen as an instrument of protection, not as an obstacle in protecting the independence, democracy and other constitutional values of the Republic of Moldova

 

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