CYIL vol. 14 (2023)

CYIL 14 (2023) ESTABLISHMENT OF THE REGISTER OF DAMAGE AS A RESPONSE OF THE COUNCIL … Further details are regulated by the 2013 Practical modalities governing accessions to and withdrawals from partial and enlarged agreements 32 . The word “agreements” may give rise to some misunderstandings, since this term may imply that such legal instruments are “treaties” (or “conventions”). After all, under Art. 2 para. 1(a) of the Vienna Convention on the Law of Treaties, “treaty” means “an international agreement”. The website of the Treaty Office of the Council of Europe, however, states the following: “Conventions of the Council of Europe must be distinguished from Partial Agreements which are not international treaties but merely a particular form of co-operation within the Organisation.” 33 Despite their legally binding content, this information is certainly correct, as the partial, enlarged partial and enlarged agreements are adopted by the Committee of Ministers formally as its resolutions and remain in this legal form. Unlike treaties, they are not signed by their participants, there is no depositary, no certified copies of the original text etc. In the practice of the Czech Republic, they are not published in the Official Gazette of Treaties (Sbírka mezinárodních smluv) . So what are they from the point of international law? The above-stated description of the Treaty Office as “a particular form of co-operation” does not help here. Taking into account their legal form of a resolution of the Committee of Ministers, I believe that the “partial, enlarged partial and enlarged agreements” are what the writers of international law call “unilateral legal acts of international organizations” 34 . The question of legal qualification of the partial, enlarged partial and enlarged agreements may seem to be on the first sight rather academic, nevertheless, it is of importance for the domestic approval procedure. The constitutions of the member States of the Council of Europe usually deal with the conclusion of treaties, so the question arose, what procedure should be used for a “unilateral legal act of international organizations” like the EPA on the Register of Damage prior to its adoption by the Committee of Ministers (or when joining afterwards). In the practice of the Czech Republic, a pragmatic solution was found in the procedure per analogiam with the one required for the domestic approval of treaties on the executive level (i.e., not requiring the consent of the Parliament). This procedure was followed, e.g., in 1994, in case of the Enlarged Agreement establishing the Venice Commission 35 , and in 1998, in case of the EPA on the Social Development Fund 36 (now the Council of Europe Development Bank). Regarding the EPA on the Register of Damage, the Ministry of Foreign Affairs wisely came to the conclusion that it falls exclusively within the competence of this Ministry, therefore, the approval by the Government is not necessary (nevertheless, the dossier was submitted to the Government for information 37 and the Government will 32 Practical modalities governing accessions to and withdrawals from partial and enlarged agreements, adopted by the CMD on July 3, 2013. 33 See the website of the Council of Europe: https://www.coe.int/en/web/conventions/about-partial-agreements. 34 See, e.g., ČEPELKA, P., ŠTURMA, P. Mezinárodní právo veřejné (Public International Law) , Prague 2008, pp. 173–180; MALENOVSKÝ, J. Mezinárodní právo veřejné, obecná část a poměr k jiným právním systémům (Public International Law, General Part and Relationship Towards Other Legal Systems) , Brno 2014, pp. 189–191. 35 Resolution of the Government of the Czech Republic No. 462 from August 24, 1994, on the accession of the Czech Republic to the Partial Agreement of the Council of Europe on the establishment of the European Commission for Democracy through Law. 36 Resolution of the Government of the Czech Republic No. 757 from November 18, 1998, on the proposal of the admission of the Czech Republic to the Social Development Fund of the Council of Europe. 37 Session of the Government of the Czech Republic on May 10, 2023, No. 388/23, Information on the accession of the Czech Republic to the Enlarged Partial Agreement on the Register of Damage caused by the aggression of Russia against Ukraine (submitted by the Minister of Foreign Affairs).

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