The Croatian Constitution and Association in Alliances with Other States

Petar Bačić
5 hours ago
9 min read

Constitutions elaborate on fundamental issues related to the organization of the state, the mutual relationships of public authorities, and the relationships between authorities and citizens. The constitution represents a set of legal rules that enable the governance of a country and serves as a fixed point of political life of the community. Constitution-makers have traditionally emphasized the internal aspect of state sovereignty in terms of the legal unrestrictiveness of state authority, or the absolute authority of governance over national territory. The constitution is also a strong symbol of each state, highlighting its particularities in relation to all other state communities and serving as a means of political socialization internally.^[1]

However, the national constitution is also an important means of the state's socialization in the international environment, legitimizing it externally. In the wave of constitutionalization that followed after 1945, the role of the constitutional document as a sort of entry ticket into the society of sovereign states and their international associations has been particularly emphasized. Constitution-makers of new states, almost without exception and certainly to a greater extent than their predecessors, start to pay attention to the international element and elaboration of the external aspect of state sovereignty. This has been contributed to by various interconnected factors, particularly the accelerated development of the international community after World War II. Cooperation among states has intensified, both on a universal level under the auspices of the United Nations and its numerous specialized agencies (World Health Organization, International Labour Organization, World Bank, International Monetary Fund, etc.), as well as in regional associations such as the Council of Europe, the European Union, the Association of Southeast Asian Nations, or the Organization of American States. There has also been an expansion of international law into new areas (for example, those that were previously under the exclusive jurisdiction of the national state or were simply vacua legis), and this process has been accompanied by a rapid increase in the number of international judicial bodies as forums for resolving disputes arising in the area of international law. Significant changes in the international political scene at the end of the 20th century and globalization processes as a whole posed an additional imperative for national constitution-makers regarding internationalization.^[2]

An integral part of constitutional engineering of the broader European constitutional movement in the late 1980s and early 1990s, to which Croatia by all means also contributed, was opening of the so-called new democracies (ex socialist countries) to the increasingly important role of international and transnational law. More than twenty former socialist countries adopted completely new constitutions or thoroughly adapted their existing constitutional documents in the first half of the 1990s. The European continent during this short period was truly a laboratory of constitutional action, leading a wave of constitution-making with an intensity unprecedented until then. The reasons for the intensified internationalization of constitutions should be sought in the general democratization of these countries, the increasing importance of international human rights treaties and their protection systems, and certainly in the process of emphasized interdependence present in various spheres of international relations, especially concerning the solving of global problems and the challenges of economic integration.

In the process of establishing a new social and constitutional order, through the adoption of the first democratic Constitution at the end of 1990, Croatia expressed a firm belief that as a newly formed democratic political community, it could resolve the problem of adapting its internal legal order to the dynamic development of international law precisely through the constitutionalization of matters related to international law and foreign affairs, thereby determining its path of integration into the global community.

After the declaration of independence in 1991, the independent and sovereign Republic of Croatia began with the process of joining international organizations. The first international recognitions of the new state followed at the end of 1991, and that process was definitively completed on 22 May 1992, when Croatia became a full member of the United Nations. Subsequently, it joined other universal and regional international organizations. In the same year that it was admitted to the United Nations, a political dialogue was established between Croatia and the Council of Europe, resulting in a request for membership in that regional organization. The Republic of Croatia was admitted to the Council of Europe on 6 November 1996. The beginning of the new millennium also brought the first step in the institutionalization of relations with the North Atlantic Treaty Organization (NATO) in the form of cooperation within the Partnership for Peace program, and Croatia was admitted to this organization in 2009.

Although the Constitution has been amended on five occasions since its adoption on 23 December 1990,^[3] the constitutional basis for joining all international organizations, including the accession to the European Union in 2013, was actually always in the provisions contained in a part of the Croatian Constitution (Chapter VII) that regulates international relations. However, the content of this provisions has been amended several times, and these changes - especially as it regards the article stipulating association and dissociation - have been very significant and particularly important for Croatia's accession to the European Union.^[4]

Already in the original text of the Constitution (1990), the Chapter dedicated to international relations was divided into two parts, with first section (titled: International Agreements) consisting of three articles, and second section (titled: Association and Dissociation) consisting of one article (originally – Art. 135, now Art. 142) that regulates the procedure for Croatia's joining alliances with other states or withdrawing from such an alliance.^[5] This provision was actually incorporated into the constitutional text to ensure, along with its other relevant provisions, the constitutional basis for conducting a referendum and establishing an independent and sovereign Republic of Croatia. The Constitution grants the right of initiative to at least one-third of the parliamentary representatives, the President of the Republic, and the Government, with the decision being made by Parliament with a two-thirds majority, while the final decision is made through a referendum.

Nevertheless, with the constitutional revision in 1997, this provision was changed regarding the procedure for dissociation, and was supplemented by including a specific prohibition on Croatia joining unions with other states that would effectively mean the renewal of the Yugoslav state community: ''Any procedure for the association of the Republic of Croatia into alliances with other states, if such association leads, or may lead, to a renewal of a South Slavic state union or to any form of consolidated Balkan state is hereby prohibited''.^[6]

Furthermore, the constitutional provision on association and dissociation was amended in 2010, this time with the aim of creating a constitutional basis that would enable Croatia's long-awaited accession to the European Union (current Art. 142 of the Constitution). In this regard, the constitution-maker intervened for the first time since 1990 in the provision related to decision-making in referendums. The strict and practically difficult-to-achieve condition of obtaining a majority of votes from all voters in the country was replaced with a solution where the lower threshold of voter turnout, which also guarantees the legitimacy of the referendum, is set as the "majority vote of all voters voting in the referendum." Since this meant that not participating in the referendum no longer had the same effect as voting "against," one might argue that this change allowed the true will of the voters to be expressed in the referendum.^[7]

In 2010, the Constitution was also amended to include a new Chapter VIII titled: European Union, which encompasses four articles (Articles 143, 144, 145, and 146). A similar solution can be found in the constitutions of other EU Member States. These new constitutional provisions addressed issues essential for Croatia's normal functioning as a new Member State of the European Union, such as the transfer of certain constitutional powers to joint European institutions, the participation of state bodies and the representation of Croatian citizens in the work of those institutions, as well as the application of EU law and the rights guaranteed to Croatian citizens and all Union citizens. Compared to other parts of the constitutional text, these provisions also introduce a nomotechnical novelty, as each of four new provisions has its own specific title.^[8] These provisions mainly came into force on 1 July 2013, as their entry into force was, according to Art. 152 of the Constitution, postponed until the date of accession.

Finally, all provisions regarding association with other states should be viewed in light of Article 2 of the Constitution of the Republic of Croatia, which determines the issue of state sovereignty. This article was already included in the original 1990 constitutional text and actually anticipates involvement in all regional European and Euro-Atlantic integration processes: ''The Croatian Parliament and people shall directly, independently, and in compliance with the Constitution and law, decide upon: (...) - association in alliances with other states. The Republic of Croatia may conclude alliances with other states, retaining its sovereign right to decide upon the powers to be so delegated and the right to freely withdraw therefrom''.^[9]

^[1] Bačić A., Ustavno pravo i političke institucije, Pravni fakultet, Split, 2017., p. 55 et passim

^[2] See Bačić P., Ustavi i međunarodno pravo ili o jezgri hrvatskog prava vanjskih poslova, HAZU, Zagreb, 2021., p. 411-433.

^[3] The Croatian Constitution was amended in 1997, 2000, 2001, 2010, and 2013.

^[4] This is now Chapter VII – 'International Relations' of the Constitution. It is divided in two parts: 1. International Treaties (Art. 139, 140, 141), and 2. Association and Dissociation (Art. 142). See Constitution of the Republic of Croatia, Official Gazette 'Narodne Novine' no. 85/2010 (consolidated text).

^[5] Constitution of the Republic of Croatia (1990), Article 135:

''A procedure entailing the association of the Republic of Croatia into alliances with other states may be initiated by at least one-third of the deputies of the Croatian Parliament, the President of the Republic and the Government of the Republic of the Croatia.

Any association of the Republic of Croatia shall first be decided upon by the Croatian Parliament by a two-thirds majority of all deputies.

Any decision concerning the association of the Republic of Croatia shall be made in a referendum by a majority vote of total number of voters in the Republic.

Such a referendum shall be held within 30 days from the date on which the decision has been passed by the Croatian Parliament.

The provisions of this Constitution concerning association shall also pertain to the conditions and procedures for the dissociation (secession) of the Republic of Croatia, except when owing to extraordinary circumstances the Croatian Parliament may, at the proposal of a third of the representatives, or of the President of the Republic, or the Government of the Republic of Croatia, for the purposes of protection of the Republic of Croatia, decide on secession by a two-thirds majority vote of all representatives present''.

^[6] Constitution of the Republic of Croatia (1997), Article 135:

''A procedure entailing the association of the Republic of Croatia into alliances with other states may be initiated by at least one-third of the deputies of the House of Representatives of the Croatian Parliament, the President of the Republic and the Government of the Republic of the Croatia.

Any procedure for the association of the Republic of Croatia into alliances with other states, if such association leads, or may lead, to a renewal of a South Slavic state union or to any form of consolidated Balkan state is hereby prohibited.

Any association of the Republic of Croatia shall first be decided upon by the House of Representatives by a two-thirds majority of all deputies.

Any decision concerning the association of the Republic of Croatia shall be made in a referendum by a majority vote of total number of voters in the Republic.

Such a referendum shall be held within 30 days from the date on which the decision has been passed by the Croatian Parliament.

The provisions of this Constitution concerning association shall also pertain to the conditions and procedures for the dissociation of the Republic of Croatia''.

See Smerdel B., in Sokol S. & Smerdel B., Ustavno pravo, Pravni fakultet, Zagreb, 2006, p. 432; see also Rodin S., Ustavna osnova za članstvo Hrvatske u Europskoj uniji, Informator, 2008.

^[7] Constitution of the Republic of Croatia (2010), Article 142:

Any association of the Republic of Croatia shall first be decided upon by the Croatian Parliament by a two-thirds majority of all deputies.

Any decision concerning the association of the Republic of Croatia shall be made in a referendum by a majority vote of all voters voting in the referendum.

Such a referendum shall be held within 30 days from the date on which the decision has been passed by the Croatian Parliament.

The provisions of this Article concerning association shall also pertain to the conditions and procedures for the dissociation of the Republic of Croatia''.

See Prijedlog promjene Ustava RH of 15 June 2010.; https://sabor.hr/sites/default/files/uploads/sabor/2019-01-18/080052/PRIJEDLOG_PROMJENE_USTAVA_RH.pdf

^[8] Art. 143 - Legal grounds for membership and transfer of constitutional powers, Art. 144 - Participation in European Union institutions, Art. 145 - European Union law, Art. 146 - Rights of European Union citizens.

^[9] Constitution of the Republic of Croatia, Official Gazette 'Narodne novine' no. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010, 5/2014. The only intervention in Art. 2 occurred in 2000 when the wording ''Parliament and People'' was changed into ''Parliament or People''; see Constitution of the Republic of Croatia, Official Gazette 'Narodne novine' no. 113/2000.