Introduction
Over the past several decades, the role of international law within domestic legal orders has attracted significant scholarly attention.Footnote 1 Constitutional and international legal scholars have extensively examined the use of international law by domestic courts, clarifying its causes, functions and implications for both domestic and international legal systems. Some scholars argue that domestic courts, through their interpretations, enforce a global rule of law by acting as ‘guardians’ of international law.Footnote 2 Others contend that these courts invoke international legal materials to resist the influence of international organizations on domestic law.Footnote 3 In either case, scholars conceptualize the international legal system as a coherent, monolithic and singular body of law awaiting either incorporation or resistance by judges.
This singular understanding of the international legal system ignores the fact that states often enter into multiple, sometimes competing, legal frameworks.Footnote 4 Domestic stakeholders with conflicting interests may rely on divergent international laws to justify opposing claims before domestic courts.Footnote 5 Accordingly, domestic courts invoke specific international legal instruments to mediate these overlapping commitments.Footnote 6 Such judicial use of international law is particularly pronounced, yet understudied, at the intersection of national security and human rights.Footnote 7 Some constitutional courts appear more willing than others to empower political actors by invoking collective-defense treaties.Footnote 8 What explains these divergent judicial uses of collective treaties in constitutional adjudication? What roles do constitutional courts play in shaping the national and even transnational order of national security, human rights and the rule of law?
In this article, I examine how the Constitutional Courts of Lithuania (LitCC) and Latvia (LatCC) engage with collective defense treaties. Following the end of the Soviet occupation, both governments sought to strengthen democratic governance and human rights protection under the European Convention on Human Rights (ECHR).Footnote 9 Their commitment to democratic values and the rule of law remains a central aspiration, largely driven by a desire to integrate into European society.Footnote 10 Meanwhile, these countries emphasize the importance of regional stability in the face of external threats by participating in transnational defense treaties, such as their 2004 accession to the North Atlantic Treaty Organization (NATO).Footnote 11 Against this background, the LitCC and the LatCC often face disputes involving the competing international commitments to human rights and national security.Footnote 12 A key point of focus is the governance of state secrets, a field that presents a profound dilemma: balancing the empowerment of state officials to facilitate security governance under NATO obligations with the protection of citizens’ right to information and other constitutional guarantees under the ECHR.Footnote 13
The LitCC and LatCC similarly invoke the NATO treaty to recognize the institutional legitimacy of domestic security governance. Nevertheless, their uses of the NATO treaty diverge in analytically significant ways. The LitCC constructed its rights-based jurisprudence on state secrets when the pressure of NATO obligations had not yet become imminent, in contrast to the LatCC, which established its jurisprudence simultaneously with the state’s accession to NATO, a timepoint when the pressure of NATO obligations had become imminent and had been channeled into constitutional proceedings. Accordingly, the LitCC’s judgments processed identical NATO obligations through a pre-existing analytical framework derived from the internalization of the ECHR, producing more rights-protective outcomes. In contrast, the LatCC’s early jurisprudence (2002–2005) treated NATO treaty obligations as near-determinative justifications for restricting access to court. The LatCC nevertheless partly reversed its rights-constraining posture following the Ternovskis v. Latvia (2014), a ruling by the European Court of Human Rights (ECtHR) that demanded greater protection of individual rights.Footnote 14
I advance a path-dependent thesis from the perspective of transnational law by building upon the above analysis of the LitCC and LatCC: the early internalization of ECHR norms shapes the function of the NATO treaty in subsequent constitutional adjudication. Internalization here refers to the process by which courts, through adjudication, incorporate international legal ideas and practices into the domestic legal system.Footnote 15 This process allows courts to establish a rights-based jurisprudence through continued engagement with international human rights norms, such as those embodied in the ECHR, creating a rights-protective culture. By contrast, when a constitutional court is subject to the self-reinforcing framework established under intense security pressure, an ECtHR decision may serve as an external shock that motivates the court to achieve equivalent rights-based outcomes, primarily because perceived non-compliance with an ECtHR ruling can undermine the reputation of a constitutional court or a member state within the European community.Footnote 16 To be sure, this embedded norm does not guarantee that a path will always evolve toward a rights-protective end, as the existing path may be altered toward a different trajectory. Still, pre-established norms shape how subsequent international commitments are incorporated into domestic institutional arrangements, creating a hierarchical legal structure of competing international obligations within a given constitutional system.
This analysis contributes to understanding how domestic constitutional courts serve as sites of transnational norm harmonization, a function not yet fully recognized in the literature on the relationship between courts and international law.Footnote 17 Existing scholarship on the domestic reception of international law tends to examine individual frameworks in isolation. It often asks how courts receive human rights norms without addressing how courts assess the relative weight of different international commitments at the same time.Footnote 18 Nevertheless, the Baltic cases show that when courts operate within a ‘dense web of multilateral international commitments’,Footnote 19 the path-dependent structure of previously internalized commitments may determine the analytical framework used to justify their decisions.Footnote 20 Constitutional courts construct a hierarchical framework through which multiple international obligations are organized within the domestic constitutional system.Footnote 21 This framework determines the boundaries of power exercised by state institutions in matters of domestic and international significance, thereby enhancing the legitimacy and operation of international organizations.Footnote 22
I structure this article as follows. In the next section, I review the theoretical perspectives on courts and the transnational order. I then present case studies of Lithuania and Latvia in the subsequent two sections. In each section, I examine the constitutional background of each state and the role of its constitutional court in handling security-related disputes. In the next section, I analyze the LitCC’s and LatCC’s engagement with collective treaties and the implications for the international order. Based on these findings, I advance the thesis regarding the prior internalization of human rights norms and examine alternative explanations. The subsequent section will use the Constitutional Court of the Czech Republic as a shadow case study to examine the generalizability of this article’s theoretical framework.Footnote 23 The final section concludes the article.
Constitutional courts, path dependence and transnational legal orders
The relationship between domestic courts and the international sphere has received considerable attention in the scholarship on constitutional and international law. Over the past several decades, legal scholars have grappled with the role of courts in adopting or resisting international law within the domestic legal order. Some scholars argue that constitutional courts function as ‘agents’ of international law, ensuring the integration and application of international legal norms within domestic legal systems.Footnote 24 Others contend that domestic courts invoke international law to create a protective shield for domestic institutions, enabling them to expand democratic deliberation and resist external pressures.Footnote 25 In doing so, domestic courts bolster their authority in the eyes of domestic institutions facing economic, financial and political pressures from supranational entities.Footnote 26
This discussion is built on a presumed gap between the domestic and international legal systems, which I refer to in this article as ‘vertical tensions’.Footnote 27 This focus on vertical tensions presupposes that courts primarily engage with a coherent body of international law that invites a consistent reaction, either adherence or resistance, from domestic judiciaries.Footnote 28 Nevertheless, a state often belongs to multiple treaties or agreements in order to acquire international credibility, thereby becoming subject to the binding force of numerous international norms.Footnote 29 At the domestic level, a litigant may invoke a broadly defined international norm to challenge an opposing party’s claim, which may itself be justified by a different international agreement pursuing different normative goals.Footnote 30 In this context, both parties are contesting not only which international obligation should prevail, but also the meaning and scope of international commitments and expectations, as well as their political or normative roles in guiding the state’s exercise of public authority.Footnote 31 The dispute thus reflects what I call ‘horizontal tensions’ between competing international commitments under divergent legal instruments.Footnote 32
In the literature on transnational legal orders, scholars have recognized that law is shaped beyond the traditional dichotomy between domestic and international law.Footnote 33 Domestic and international actors interact dynamically, creating a set of actions and rules that governs the behavior of various state and non-state actors.Footnote 34 In particular, scholars have recognized the horizontal tensions between divergent normative structures comprising conflicting international, national and domestic elements.Footnote 35 The settlement of horizontal tensions requires coordination among competing normative commitments, a process often facilitated by various state and non-state actors, including domestic courts.Footnote 36 How, then, do courts determine the use and function of international legal materials? The concept of path dependence helps resolve this puzzle. It is useful as a start point for us to establish new theses regarding the judicial use of international law and the roles of courts in shaping transnational legal orders.
The theory of path dependence holds that a choice made at an earlier point in time will likely create positive feedback at one or several ‘critical junctures’.Footnote 37 This feedback is reinforced when later decision-makers follow the existing path, making it more stable, entrenched and dominant.Footnote 38 A reversal of the path is not impossible but highly costly, potentially requiring an external shock or an event of enormous weight to change existing practices.Footnote 39
Alec Stone Sweet argues that courts operate in a path-dependent way.Footnote 40 Judges develop precedents, allowing judicial decisions made at an earlier point in time to influence subsequent litigation. There are two mechanisms underlying the evolution of a path-dependent structure. The first is outcome-based: a judicial ruling often expands opportunities for parties to demand remedies or compensation, creating advantages for similar classes of litigants in the future.Footnote 41 The second is discursive or analytical. When adjudicating disputes, judges select a particular analytical framework or discursive viewpoint to organize (1) the questions asked in the courtroom and (2) the reasoning structure of judicial decisions.Footnote 42
Based on the concept of path dependence, the analytical frameworks and commitments adopted by a court at an early stage can shape how it assesses later disputes.Footnote 43 A confluence of factors profoundly shapes a court’s initial choices. For instance, courts may rely on available legal resources to assist their decision-making process when confronting with a new legal challenge. One powerful instrument is international legal materials, especially international human rights treaties, since many countries have adopted them at an early stage of constitutional development.Footnote 44 International instruments are powerful tools of argumentation. They help courts identify the questions at issue, assess the range of applicable international legal norms, formulate justifications and determine consequences.Footnote 45 Courts may thus internalize existing methods of argumentation, reducing the unpredictability associated with adopting a new analytical framework for every case.Footnote 46
Moreover, international instruments carry a profound weight of obligation in the eyes of state institutions and citizens. They provide additional justificatory weight for courts to assess competing claims and buttress their decisions.Footnote 47 Internationally based justifications also enhance judicial legitimacy because courts operate in accordance with public expectations rather than against them.Footnote 48 These expectations create a self-reinforcing structure for courts to continue relying on a path.
Once established, the previously selected legal frameworks influence how later disputes of a similar kind are adjudicated and justified. To be sure, these frameworks and commitments do not always predict the outcomes of every judgment on the subsequent path. Endogenous factors, including the nature and constitutional stakes of a new dispute, as well as exogenous factors, such as transformations within the domestic and international environments, may direct the existing path of judicial precedents toward a different end.Footnote 49
In particular, rulings of international or regional courts play a crucial role in influencing the decision-making of domestic courts, primarily because of the perceived authority of such courts within a given international community.Footnote 50 This is not simply because domestic courts are legally bound by their international obligations to comply with the decisions of international or regional courts. Institutionally, international and regional courts are often regarded as authoritative institutions by legal communities or even citizens within a given jurisdiction, primarily because non-compliance with their rulings can result in reputational losses for a constitutional court or a member state, as well as other costs associated with the state’s standing within the international community.Footnote 51 Backed by such authority, international courts may thus constitute a particularly powerful form of external shock that motivates or pressures domestic courts to comply with their decisions with international standards.Footnote 52
The implications of judicial engagement can be profound. This is especially true of constitutional courts, which adjudicate cases involving competing international obligations. Constitutional courts harmonize a state’s competing international commitments within the domestic constitutional order.Footnote 53 Courts shape state behavior by empowering state institutions to craft policies within the bounds of law or by constraining their capacity to engage with international collective defense treaties because of concerns about accountability or transparency.Footnote 54 In either case, courts set a policy agenda that facilitates the enforcement of a particular international treaty, especially for questions of domestic and international significance, providing a legal framework for institutions to follow.Footnote 55 The harmonizing function of constitutional courts suggests that they play a significant role in shaping transnational law, a contribution that has received little recognition in literature that predominantly focuses on international organizations.Footnote 56
By aligning the power of state institutions with a state’s international obligations, constitutional courts invite further invocation of these organizations by politicians, litigants and civil society actors in policy deliberation.Footnote 57 This is because constitutional courts subject international commitments to a hierarchical structure of norms, signaling that these commitments constitute genuine legal obligations worthy of continued judicial or political engagement.Footnote 58 Judicial rulings that take international obligations seriously as binding law embed international institutions within domestic legal discourse. In the long run, this judicial recognition may strengthen the perceived salience and legitimacy of international organizations within the domestic constitutional order and beyond.Footnote 59
Case study: Lithuania
The constitutional court of Lithuania, international law and the ECHR
The LitCC is a product of the 1992 Lithuanian Constitution, the adoption of which marked an important moment in the nation’s regained independence.Footnote 60 The Constitution received significant public support, with over 70 percent of registered voters approving it, a strong endorsement from the citizenry.Footnote 61 The promulgation of the Constitution also signified Lithuania’s entry into the global constitutionalism movement, aligning with the worldwide trend of democratization and the proliferation of constitutional instruments.Footnote 62 As Egidijus Jarašiūnas noted, ‘the constitutional process in Lithuania [was] in full conformity with this trend of global constitutional development’.Footnote 63
Pursuant to the 1992 Constitution, the LitCC was established under the Law on the Constitutional Court in 1993.Footnote 64 The LitCC’s primary function is to review the constitutionality of statutes and regulations, as well as to arbitrate disputes between governmental bodies.Footnote 65 A key feature of the LitCC is its design, which mirrors the German model of constitutional review.Footnote 66 This model includes judicial independence mechanisms such as fixed term limits for justices and strict nomination rules. The court consists of nine justices, each appointed to a non-renewable nine-year term, with one-third of the justices replaced every 3 years.Footnote 67 These justices are nominated by the President, the Chairperson of the Seimas (the Lithuanian parliament) and the Chairperson of the Supreme Court, all subject to approval by the Seimas. Importantly, the Constitution prohibits executive interference in the selection and management of justices, ensuring that the judiciary remains free from political influence.Footnote 68
The LitCC has served as a critical institution in determining the role of international law within the country’s constitutional system.Footnote 69 The Lithuanian Constitution emphasizes the state’s participation in international affairs. Article 135(1) requires the Lithuanian government to follow universally recognized principles and norms of international law. Article 136 also declares that the state ‘shall participate in international organizations provided that this is not in conflict with the interests and independence of the State’. Article 138(3) stipulates that international treaties ratified by the Seimas constitute a part of Lithuania’s legal system. This suggests that the Constitution rejects a general monist approach, which would treat all international law as part of Lithuania’s domestic law; consequently, non-ratified treaties cannot prevail over domestic law in cases of conflict.Footnote 70
Lithuania signed the ECHR on 14 May 1993, the same day that it applied for accession to the Council of Europe. In 1995, the President requested that the LitCC determine whether the ECHR was compatible with Lithuania’s Constitution.Footnote 71 The LitCC issued an opinion that same year concluding that the Convention was compatible with the Constitution, thereby establishing the basis for its ratification. The ECHR was ratified on 27 April 1995 and entered into force on 20 June 1995.Footnote 72
Today, the ECHR has become a prominent ‘living instrument’ in Lithuanian legal practice.Footnote 73 Indeed, in its 1995 opinion, the LitCC distinguished between the application of the ECHR in civil and criminal cases, stating that direct application of the ECHR is permissible only in civil cases.Footnote 74 Furthermore, the LitCC remained silent on the application of the ECHR in administrative law.Footnote 75 Nevertheless, the LitCC’s early restrictions on criminal and administrative law became increasingly irrelevant in practice. The ECHR has since been widely invoked by domestic courts in all types of cases, including those of a criminal and administrative nature.Footnote 76
The constitutional court of Lithuania’s decisions concerning state secrets
The LitCC has developed its jurisprudence on state secrets with sustained reference to the ECHR.Footnote 77 On 19 December 1996, the LitCC rendered judgment in Case No. 3/96 concerning state secrets.Footnote 78 This decision predated the establishment of administrative courts and the adoption of the Law on Public Administration in 1999.Footnote 79 In Case No. 3/96 (1996), the LitCC scrutinized Article 5 of the Law of the Republic of Lithuania on State Secrets and Their Protection (the Old Secrets Law), which had been adopted in 1995 to govern classified information as a condition of NATO accession.Footnote 80 Nevertheless, the implementation of these new standards provoked serious social controversy regarding their compatibility with constitutional requirements.Footnote 81
In Case No. 3/96, the petitioner, the First Vilnius City Local Court, argued that Article 5 violated Article 25 of the Constitution. The petition rested upon the claim that Article 5 excessively empowered the political branches of government to determine the procedures for designating, classifying and administering state secrets, as well as managing access to confidential information.Footnote 82 The petitioner also challenged Article 10 of the Old Secrets Law, which stipulated that individuals may access and use classified information only if they have been granted security clearance.Footnote 83
In its decision, the LitCC established its rights-based jurisprudence on state secrets at a time when the country had not yet acceded to NATO. The LitCC recognized that the right to information under Article 25 of the Constitution is compatible with Article 10 of the ECHR.Footnote 84 Although the state may designate critical military, economic or political information that might harm national interests as a state secret, thereby rendering Article 10 of the Old Secrets Law constitutional, the classification of state secrets cannot deny the ‘protection of common interests in a democratic state’,Footnote 85 such as the right to information. Therefore, the court found Article 5 unconstitutional because it amounted to a blanket authorization and lacked legal constraints on the scope of executive power, thereby violating an individual’s right to information.Footnote 86
Following Case No. 3/96, the Seimas adopted the Law of the Republic of Lithuania on State Secrets and Official Secrets (Lithuania’s State Secrets Law, LitSSL).Footnote 87 The LitSSL renumbered Article 10 to Article 11, stipulating that only individuals granted clearance at corresponding levels may access and use the classified information associated with those tiers.Footnote 88 In addition, the new Article 10 stipulated that personal security clearance may be revoked by the Commission for Secrets Protection Coordination (the commission), a specialized body responsible for the protection of classified information.Footnote 89 Because Articles 10 and 11 empowered the commission as the final decision-maker regarding personal security clearances, effectively shielding other institutions, including courts, from scrutinizing the commission’s decision, the Vilnius Regional Administrative Court challenged the provisions before the LitCC.Footnote 90
The LitCC issued its judgment on 15 May 2007 (No. 7/04-8/04), following Lithuania’s accession to the EU and NATO in 2004.Footnote 91 In light of Lithuania’s new international status, the LitCC recognized the state’s critical interest in protecting not only Lithuania’s state secrets but also classified information held by other countries, which is essential for ensuring collective security.Footnote 92 However, the LitCC also faced a horizontal tension between its commitment to collective security and its obligations under the ECHR. In response, the LitCC treated the jurisprudence of the ECtHR and the European Court of Justice (ECJ) as an integral part of the Lithuanian legal system.Footnote 93 On that basis, the court cited their decisions to emphasize the rights of individuals in the context of classified information.Footnote 94
In conclusion, the LitCC appears to have integrated NATO obligations successfully into its pre-existing rights-based jurisprudence in a post-NATO era. It found Article 11 to be constitutional by following its precedent in Case No. 3/96.Footnote 95 Nevertheless, the LitCC held that Article 10 should not be interpreted as restricting an individual’s right to seek judicial remedies.Footnote 96 Based on this construction, the LitCC did not strike down Article 10 but instead incorporated the elements of judicial remedies into its interpretation of the LitSSL.
In its judgment of 7 July 2011 (Case No. 22/2008-31/2008-9/2010-35/2010), the LitCC addressed a petition concerning the revocation of personal security clearance under Articles 16 and 18 of the LitSSL.Footnote 97 These two articles provided more than 20 conditions under which a person’s security clearance, and thus their ability to handle and access classified information, could be revoked. Such revocation often resulted in the dismissal of the affected person from positions requiring security clearance.
The petitioner, the Vilnius Regional Administrative Court, challenged two specific provisions. The first was Item 13 of Article 16(2), which mandated revocation if a person was ‘prosecuted for an intentional criminal act or subject to a pre-trial investigation or operational investigation related to the said act’.Footnote 98 The second was Item 4 of Article 18(1), a general clause encompassing any of the circumstances referred to in Article 16(2), including the aforementioned Item 13. The petitioner argued that these two clauses violated an individual’s right to work; specifically, it contended that, before judicial proceedings had concluded, there was no basis for determining that the person was responsible for the alleged criminal act.Footnote 99
In response, the LitCC clearly recognized the horizontal tension between the state’s NATO obligations and its human rights commitments. It explicitly emphasized that, given Lithuania’s ‘geopolitical orientation’, it is necessary to fulfill international obligations under NATO and the EU within the domestic legal system.Footnote 100 Given Lithuania’s membership in these organizations, it must establish a system for protecting classified information with standards no lower than those required by these entities.Footnote 101 Moreover, the LitCC cited its precedent in Case No. 7/04-8/04, emphasizing the need to ensure the loyalty and reliability of those who can access classified information to maintain national security and territorial integrity.Footnote 102 Nevertheless, the LitCC also stressed that the governance of state secrets must comply with established constitutional principles, such as proportionality, so that individual rights are restricted only when necessary.Footnote 103
The LitCC balanced collective defense commitments against Lithuania’s constitutional protection of human rights. Regarding the first issue, the LitCC held that the fact that an individual was subject to criminal proceedings raised doubts about their loyalty and reliability to Lithuania; therefore, restricting their access to classified information was deemed necessary to achieve the legitimate objective of protecting national security.Footnote 104 However, regarding the second issue, the LitCC found that Item 4 of Article 18(1) disproportionately restricted an individual’s right to work, as it failed to provide individualized screening to determine whether an individual’s loyalty to the state had actually been compromised. Under the challenged provision, any minor circumstance could constitute grounds to doubt a person’s loyalty and reliability, resulting in the loss of their job. Accordingly, the LitCC struck down Item 4 of Article 18(1).Footnote 105
Following the decision, the Seimas amended Articles 16 and 18 to implement the LitCC’s ruling.Footnote 106 The amendment established that a work permit or security clearance can be revoked only after a supplemental background check and an assessment of facts that substantiate doubts about the person’s reliability and loyalty.Footnote 107 The amendment was adopted by the Seimas and promulgated by the president on 2 July 2013.Footnote 108
The LitCC’s analytical framework has also prompted further legal debates. In 2021, the Seimas Committee on National Security and Defense (the Committee) considered further amendments to the LitSSL.Footnote 109 The State Security Department proposed abolishing the screening requirement for accessing information classified as ‘restricted use’, the lowest level of classified information, below ‘confidential’, ‘secret’ and ‘top secret’.Footnote 110 The Department justified its proposal on the ground that few NATO member states require such screening for ‘restricted use’ information, placing Lithuania in a difficult position when negotiating classified information agreements with other states.Footnote 111
Nevertheless, the Committee disagreed. It emphasized the large volume of information in this category, which requires careful handling given Lithuania’s delicate geopolitical position.Footnote 112 More importantly, the Committee invoked the LitCC’s 2011 decision to justify its view that Lithuania, given its geopolitical circumstances, can establish more stringent requirements than other EU or NATO states to ensure the loyalty of security personnel.Footnote 113 This position is prohibited by neither the EU nor NATO. As a result, the proposal was not incorporated into the final version of the LitSSL.Footnote 114
Case study: Latvia
The constitutional court of Latvia, international law and the ECHR
The Constitution of Latvia (Satversme) was adopted in 1922 following the country’s first declaration of independence in 1918. After being forcibly incorporated into the Soviet Union in 1940, Latvia restored its independence in 1991. The original Constitution was also restored pursuant to the doctrine of state continuity, which treats Latvia before and after the Soviet occupation as the same sovereign state.Footnote 115
The Latvian Constitution established the LatCC, which became operational in 1996 after extensive discussion.Footnote 116 Under Article 85 of the Constitution, the LatCC consists of 7 justices: 3 are nominated by at least 10 members of the Saeima (Latvia’s parliament), 2 by the Cabinet of Ministers and 2 by the Plenum of the Supreme Court.Footnote 117 A case for constitutional review can be initiated by an application from the President, the Saeima, the Cabinet of Ministers, the Procurator General or the State Audit Office.Footnote 118 Additionally, a lower court may submit an application to initiate review.Footnote 119 Since 2000, individuals believing their fundamental rights have been infringed upon by legal norms can also file a constitutional complaint with the LatCC.Footnote 120
Over the past several decades, the LatCC has played a significant role in safeguarding the nation’s constitutional and democratic order.Footnote 121 Notably, the LatCC has embraced international law relating to fundamental human rights, such as the ECHR, which the Saeima ratified in 1997, and the case law of the ECtHR.Footnote 122 To be sure, the original Constitution did not explicitly address the role of international law within the domestic legal order, primarily due to its 1992 provenance.Footnote 123 Nevertheless, since the 1990s, it has been widely recognized that ratified international treaties may have equal force of law, meaning that they are directly applicable at the domestic level.Footnote 124 Furthermore, the LatCC has established its jurisdiction to review the compliance of domestic law with international treaties ratified by the Saeima.Footnote 125 Constitutional doctrines developed by legal scholars have also incorporated principles of international human rights into domestic application.Footnote 126 Accordingly, the LatCC supports the view that domestic law should be interpreted in line with Latvia’s European and international obligations.Footnote 127
The constitutional court of Latvia’s decisions concerning state secrets
The LatCC first encountered questions regarding state secrets in the early 2000s, as Latvia intensified its preparations for NATO accession, which was achieved in 2004. Case No. 2002-20-0103 (2003) concerned Article 11(4) of the Law on State Secrets (LatSSL), which originally came into effect in 1997 to strengthen the governance of classified information.Footnote 128 Article 11 stipulated that a decision to reject access to classified information may be appealed to the Constitution Protection Bureau (CPB), the agency responsible for intelligence and the protection of state secrets.Footnote 129 The decision of the CPB could then be appealed to the Procurator General, whose decision was final and non-appealable. Article 9 further stipulated that a denial of access to classified information constitutes sufficient grounds to dismiss an individual from a position requiring access to state secrets.Footnote 130
In Case No. 2002-20-0103, the petitioner, Andris Ternovskis, was unable to perform his duties requiring access to classified information because his special permit had been denied. Mr. Ternovskis challenged Article 11(4) of the LatSSL, arguing that it violated his constitutional right to a judicial remedy under Article 92 of the Constitution, Article 10 of the Universal Declaration of Human Rights, Article 6 of the ECHR and Article 14 of the International Covenant on Civil and Political Rights.Footnote 131 On the other hand, government representatives suggested that the Law on State Secrets complied with the necessary standards adopted by many other EU states and NATO.Footnote 132
In response, the LatCC resolved the horizontal tensions between the country’s NATO obligations and human rights commitments by upholding Article 11(4).Footnote 133 It accepted the government’s view that the right to access state secrets is not an essential human right. Moreover, the LatCC stated that requirements for individuals accessing classified information are extremely strict in many democratic states, including NATO members.Footnote 134 The LatCC further invoked the Agreement between the Parties to the North Atlantic Treaty for the Security of Information, as well as other NATO documents, to justify its view that the petitioner’s claim to employment was not constitutionally protected.Footnote 135 Moreover, the court held that the petitioner’s right of access to justice was fully protected by law, as he could be fully heard before the CPB and the Procurator General.Footnote 136 As a result, the LatCC found Article 11 to be in full compliance with Latvia’s human rights obligations under the Constitution as well as other international or European instruments.Footnote 137
In 2005, 1 year after Latvia acquired NATO membership, the LatCC encountered a similar issue regarding state secrets in Case No. 2005-07-01.Footnote 138 Article 11(6) of the LatSSL stipulates that a decision by the director of the CPB regarding access to classified information of foreign states or international organizations shall be final and non-appealable.Footnote 139 In this case, the petitioner challenged Article 11(6) for violating his right to a fair trial.Footnote 140 During the litigation, government representatives, including those from the CPB, cited Latvia’s obligations under NATO and the EU to protect classified information, arguing that by becoming a member state, Latvia had assumed significant international responsibilities in this field.Footnote 141
Recognizing these arguments, the LatCC maintained its pre-existing approach to the horizontal tensions between NATO and human rights commitments by rejecting the petitioner’s claim.Footnote 142 The LatCC invoked ECtHR jurisprudence to emphasize that the right of appeal is not absolute and may be restricted. The court reasoned that Latvia had observed international standards established by both the ECtHR and NATO by considering the interests of the individual under investigation and ensuring a right to be heard before a final decision is made.Footnote 143 Therefore, Article 11(6) was deemed proportionate to its aim and thus in line with the Constitution.
Nearly 9 years later, in 2014, the ECtHR rendered its decision in Ternovskis v. Latvia in response to Andris Ternovskis, the petitioner in the LatCC’s 2003 decision.Footnote 144 Mr. Ternovskis complained that the Riga Regional Court had deprived him of his right to a fair trial in a civil lawsuit filed in tandem with his petition before the LatCC.Footnote 145 The ECtHR held that the state had violated Mr. Ternovskis’ right to a fair trial under Article 6 of the ECHRFootnote 146 because no evidence supported the claim that he had been afforded a substantial opportunity to defend himself, an essential criterion for satisfying the requirements of Article 6.Footnote 147
The LatCC faced the issue of state secrets again in its judgment of 10 February 2017 (No. 2016-06-01).Footnote 148 The petitioner contested several provisions of the LatSSL, arguing that he could not appeal the State Security Police’s decision to revoke his special permit to access classified information before a court. Moreover, his access to state secrets was denied while he appealed his case before the CPB and then the Procurator’s Office, rendering him unable to perform his duties and causing the loss of his job.Footnote 149
In response, the LatCC accepted the case. It explicitly stated that Case No. 2002-20-0103 (2003) had been decided more than a decade earlier, at a time when Latvia was transforming its legal system from Soviet law to a system compatible with democracy.Footnote 150 The LatCC also noted that significant changes had since taken place, such as the entry into force of the Administrative Procedure Law in 2004. Thus, the court emphasized a genuine need to examine the petitioner’s claim regarding the constitutionality of the LatSSL.Footnote 151
As in prior cases, government representatives emphasized Latvia’s obligations under NATO and the EU to protect classified information. The LatCC accepted that these international obligations served a legitimate aim.Footnote 152 However, the court adopted a new approach to resolving horizontal tensions. Although it found the restriction on the petitioner’s right to work constitutional in principle, it rejected the government’s view that an individual’s opportunity to reapply for a special permit in the future could be restricted without further specification. The court emphasized that the practices of other NATO and EU member states, specifically Lithuania and Estonia, should be considered.Footnote 153 Based on these comparisons, the LatCC stated that the Saeima could have specified the conditions under which a new special permit might be issued.Footnote 154 Ultimately, the court concluded that the measure in question was not the least restrictive means of preventing the applicant from reapplying for a special permit related to state secrets in the future.Footnote 155
Finally, the court found that the petitioner’s fundamental right of access to the courts had been denied.Footnote 156 The LatCC invoked the ECtHR’s decision in Ternovskis v. Latvia as a key reference, emphasizing the need to examine whether the petitioner had in fact been afforded the right to be heard.Footnote 157 Based on the case law of the LatCC and the ECtHR, the LatCC reasoned that, because the Procurator General held significant powers in state security matters, the office acted as a decision-maker rather than as an independent judicial body under Article 6 of the ECHR. This arrangement therefore violated the petitioner’s right to a fair trial.Footnote 158
Following the LatCC’s decision, the Cabinet of Ministers established a working group to amend the LatSSL.Footnote 159 In 2018, the Saeima passed amendments stipulating that an individual can contest and appeal a decision by the Procurator General regarding the refusal, cancellation or downgrading of a special permit within 14 days from the date of notification to a Regional Administrative Court.Footnote 160 Furthermore, the LatSSL established procedures for the court to hear such cases. For instance, cases must be heard by a panel of three judges who must consider both the grounds given in the Procurator General’s decision and the classified information that served as the basis for the original decision. Although state security institutions may determine the scope of classified information to be disclosed to the individual, the court is empowered to evaluate that information even if public disclosure is prohibited.Footnote 161 Consequently, the CPB published these judicial remedy procedures on its website for public information.Footnote 162
A comparative analysis of the LitCC and LatCC
So far, I have provided a descriptive analysis of the two courts’ use of the NATO treaty to resolve horizontal tensions. This section provides a comparative analysis of the LitCC and LatCC. To facilitate the discussion, I offer a table summarizing the two courts’ rulings and the major events discussed in this section.
A comparison of Lithuania and Latvia in the context of state secrets
Table 1. Long description
The table consists of three columns: Year, Lithuania, and Latvia.
* 1995: Lithuania ratified the E C H R.
* 1996: Lithuania Case Number 3 forward slash 96. The Lit C C declared parts of laws unconstitutional by invoking Article 10 of the E C H R with no NATO reference.
* 1997: Latvia ratified the E C H R.
* 1999: Lithuania Law on Public Administration came into force and administrative courts were established.
* 2003: Latvia Case Number 2002-20-0103. The Lat C C held that restrictions on constitutional rights were compatible with the Constitution and E C t H R case law given NATO obligations.
* 2004 February: Latvia Administrative Procedure Law came into force.
* 2004 March: Both Lithuania and Latvia achieved NATO membership.
* 2005: Latvia Case Number 2005-07-01. The Lat C C held that restrictions on constitutional rights were compatible with the Constitution and E C t H R case law given NATO obligations.
* 2007: Lithuania Case Number 7 forward slash 04-8 forward slash 04. The Lit C C upheld laws but emphasized judicial remedies supported by E C t H R case law and invoked NATO obligations regarding state-secrets governance.
* 2011: Lithuania Case Number 22 forward slash 2008-31 forward slash 2008-9 forward slash 2010-35 forward slash 2010. The Lit C C declared parts of laws unconstitutional and invoked NATO obligations for state-secrets governance.
* 2016: Latvia Case Number 2016-06-01. The Lat C C struck down parts of laws, invoking both E C t H R case law and NATO obligations.
Source: Created by Author.
Similarities
Owing to their similar historical and geopolitical backgrounds, Lithuania and Latvia demonstrate similar trajectories in the ratification of the ECHR and accession to NATO. Lithuania and Latvia ratified the ECHR in 1995 and 1997, respectively, and both acceded to NATO in 2004. Their participation in collective-defense and human rights organizations suggests that these matters tend to be politically salient in both nations. Therefore, the LitCC and LatCC both invoked the NATO treaty together with the ECHR in cases involving state secrets to resolve horizontal tensions between their respective NATO obligations and human rights commitments.
A likely reason for this use of the NATO treaty lies in the courts’ motivation to cultivate institutional reputation.Footnote 163 NATO participation has rarely been disputed in either country;Footnote 164 it was widely regarded as an important means by which Baltic states could safeguard their national security against potential attacks from Russia.Footnote 165 Moreover, the LatCC and LitCC are relatively young, newly reformed institutions operating in rapidly changing societies.Footnote 166 Strong domestic support for NATO offered both courts a powerful instrument with which to strengthen their democratic legitimacy in the eyes of domestic audiences concerned with national security.Footnote 167
Constitutional provisions also enhanced the two courts’ roles in invoking international treaties. This factor appears stronger in Lithuania, given that Articles 135, 136 and 138 explicitly stipulate the country’s obligations to comply with international treaties.Footnote 168 By contrast, Latvia’s Constitution primarily emphasizes the state’s obligations to protect human rights in accordance with international agreements binding upon Latvia.Footnote 169 Nevertheless, Article 41 emphasizes the President’s role in enforcing international treaties ratified by the Saeima, confirming the state’s obligations under international law.Footnote 170
Differences: Use of the NATO treaty and the path-dependent power of precedents
The LitCC and LatCC revealed different patterns of path dependence in their responses to the horizontal tensions between NATO and the ECtHR, resulting in divergent uses of the NATO treaty in state-secrets cases. In its 1996 decision (Case No. 3/96), the LitCC established a foundational precedent that, although national security is a legitimate government interest, it cannot justify an excessive exercise of state power. By internalizing the ECHR framework at a point when NATO obligations had not yet become imminent, the LitCC ensured that state authority remained constrained by a rights-based legal framework. Following this entrenched approach, the LitCC’s post-NATO decisions remained reasonably rights-protective. In Case No. 7/04-8/04 (2007), the LitCC emphasized that the LitSSL cannot be interpreted to restrict an individual’s right to seek judicial remedies. Similarly, in Case No. 22/2008-31/2008-9/2010-35/2010, the court held that the government cannot restrict an individual’s right to work without an individualized determination of whether the person’s loyalty to the state had actually been compromised.
By contrast, the LatCC first encountered state-secrets disputes in 2003, exactly when the state’s NATO obligations were becoming material. Unlike the LitCC, which had already established a rights-protective threshold, the LatCC approached these disputes without a pre-existing domestic rights-based path. Although the LatCC invoked ECtHR jurisprudence and the practice of other European states, it did so primarily to uphold state power, giving priority to the immediate and influential demands of NATO accession. For instance, in Case No. 2002-20-0103 (2003) and Case No. 2005-07-01 (2005), the LatCC applied the principle of proportionality to justify restrictions on individuals’ rights to a fair trial and employment under the ECHR framework. In these instances, the NATO treaty served as a tool for legitimizing the government’s exercise of power rather than as a framework to be balanced against human rights.
The LatCC’s deferential path was interrupted by an external shock: the ECtHR’s 2014 decision in Ternovskis v. Latvia. The ECtHR criticized the Latvian judicial procedures, ruling that they did not offer the applicant a substantial opportunity to defend himself. Although the ECtHR did not directly overturn the LatCC’s previous decisions, Ternovskis v. Latvia gave the LatCC a significant opportunity to engage with international legal materials and depart from its existing path.
In Case No. 2016-06-01 (2017), the LatCC adopted a more rights-protective posture, emphasizing the necessity of judicial review in state-secrets cases. Although the LatCC recognized the legitimacy of NATO obligations, it demonstrated that national security cannot automatically outweigh human rights. Instead, the LatCC invoked the Ternovskis v. Latvia to emphasize the viability of a more rights-protective approach. Backed by the persuasive authority of the ECHR, the LatCC relied on the Ternovskis v. Latvia to recalibrate its proportionality analysis, leading it to conclude that Latvia’s current approach was not the least restrictive means of protecting constitutional rights.Footnote 171 In the end, the LatCC’s approach appears to have converged with the precedents adopted by the LitCC.
Hypothesis: The internalization of the ECHR norms
What accounts for the initial divergence and subsequent convergence of Lithuania and Latvia? Building upon the case study, this article proposes a hypothesis related to the early internalization of ECHR norms. As discussed, the LitCC incorporated the ECHR’s principles regarding judicial review more successfully than the LatCC in the context of state secrets, as evidenced by its 1996 decision. In this decision, the LitCC was likely not yet confronted with competing arguments grounded in Lithuania’s NATO obligations, which would materialize in 2004. Without substantial pressure from NATO-related arguments, the LitCC created its state-secrets jurisprudence primarily grounded in the pre-established rights-protective norms of the ECHR. By contrast, the LatCC delivered the judgment of Case No. 2002-20-0103 at a time when Latvia’s NATO accession was imminent, and its associated obligations were already present in constitutional proceedings. Against this backdrop, the LatCC was expected to deal with NATO-related arguments, which state authorities had advanced to justify their pro-security position.Footnote 172 Accordingly, the LatCC was motivated to address the tension between fundamental rights and national security in a more explicit manner. Moreover, the LatCC’s internalization of ECHR norms was more constrained.
However, the significance of the LitCC’s early internalization should not be overstated. An external shock, such as an ECtHR decision, can motivate a court to rein in the government’s excessive exercise of power, primarily due to the perceived authority of the ECtHR within the European community. In fact, this perceived authority of the ECtHR manifests itself in the legal system of Latvia. Legally, Article 89 of the Latvian Constitution provides an important textual anchor for the LatCC to follow ECtHR case law.Footnote 173 Functionally, invoking international human rights treaties as ‘persuasive authority’ allows the LatCC to validate its decisions and bolster its institutional authority.Footnote 174 To be sure, in the absence of an international court decision, judicial redirection might still be possible if supported by other factors (see the following discussion on alternative explanations). Nevertheless, non-compliance with the ECtHR’s ruling may give rise to reputational costs for the LatCC or even Latvia. As a young democracy seeking integration into the European community, the Latvian public broadly respects and supports participation in international organizations, including the ECHR system, implying a general concern of being excluded from the international community.Footnote 175 Therefore, there is little dispute regarding the normative force of the ECHR within Latvia’s legal system.Footnote 176 The widespread reception of the ECHR in Latvian society likely gave the LatCC a useful opportunity to rely on ECtHR case law and craft its jurisprudence rigorously following the external shock of Ternovskis.
Alternative explanations
In addition to the variable of norm internalization, three alternative variables may also explain the LitCC’s and LatCC’s initial divergence and subsequent convergence: docket sequencing, institutional design and administrative procedures. First, docket sequencing. The timing of the LitCC’s and LatCC’s first state-secrets case may be quasi-random. It may depend on the timing of when a dispute emerges, clears prior judicial proceedings and enters the pipeline of constitutional review. Accordingly, the LitCC might have rendered a decision similar to that of the LatCC had it first encountered a state-secrets dispute closer to NATO accession. Future research may scrutinize the two courts’ institutional details to demonstrate how much discretion each court exercises over case selection.
Second, institutional design. The LatCC’s later transition toward a rights-protective approach may be explained by its adoption of a constitutional complaint system in 2000, allowing individuals to challenge acts of government directly before the LatCC. To be sure, the creation of the institution does not guarantee a more rights-protective approach. Judges can reject an individual’s petition when they deem to have compelling justifications, as the LatCC did in the judgments of Case No. 2002-20-0103 and Case No. 2005-07-01. As such, future research needs to explore whether and how greater accessibility of constitutional review channels contributes to rights-protective judicial behavior over time.
Third, administrative procedures. European administrative law emphasizes the procedural rights of ordinary citizens in administrative proceedings, including the right to be heard and the right to judicial review.Footnote 177 Administrative courts are recognized as providing an ‘effective remedy’ under Article 13 of the ECHR.Footnote 178 Lithuania established its administrative courts, along with the Law on Public Administration, in 1999. This development codified citizens’ rights to challenge administrative acts or omissions by public authorities.Footnote 179 By contrast, Latvia adopted the Administrative Procedure Law in 2001, which did not enter into force until 2004. This law enabled citizens to challenge administrative actions under statutory conditions.Footnote 180 Its relatively late adoption likely reflected a broader institutional reluctance toward judicial review and its application in administrative law, an attitude also reflected in the LatCC’s decisions in Case No. 2002-20-0103 (2003) and Case No. 2005-07-01 (2005), in which the LatCC did not deem an independent judicial proceeding necessary to protect the petitioner’s right to a fair trial. It was not until Case No. 2016-06-01 (2017) that the LatCC explicitly recognized that the maturation of administrative law justified a new approach to state-secrets cases.Footnote 181
To be sure, both courts delivered their first state-secrets decisions before contemporary administrative procedures came into force. This variable alone may therefore be insufficient to explain the two courts’ initial divergence. Nevertheless, as with the institutional design variable discussed above, administrative procedures reflect a constitutional culture that recognizes the protection of individual rights through judicial review.Footnote 182 As such, Lithuania’s earlier adoption of contemporary administrative procedures and establishment of administrative courts may thus align with the LitCC’s earlier adoption of a rights-protective approach in the context of state secrets. In a similar vein, Latvia’s later adoption of administrative procedures and courts may also demonstrate similar trends with the LatCC’s later transition toward a more rights-protective approach. If this hypothesis holds, the variable of administrative procedures constitutes a plausible explanation for the two courts’ initial divergence and subsequent convergence.
Taken together, these alternative explanations provide additional analytical frameworks to examine the behavior of the LitCC and LatCC. Understanding the interaction between these alternative mechanisms and the behavior of constitutional courts, therefore, would be vital for further examining the legal orders that govern fundamental rights and national security and the roles of constitutional courts in shaping them.
Constitutional courts and transnational legal orders
From the perspective of transnational legal orders, the LitCC and LatCC serve as key sites of norm harmonization. By delineating the limits of state power regarding state secrets, these courts determine the priority of their states’ international commitments within the domestic legal order. They internalize the normative priority of constitutional rights protection under the ECHR and other international human rights treaties.Footnote 183 Within this embedded normative structure, the courts further determine the extent to which state authorities can limit citizens’ constitutional rights, such as the right to a fair trial and the right to employment, under the aegis of NATO obligations.Footnote 184 Accordingly, human rights protection functions as a foundational normative framework, whereas NATO obligations act as a functional tool for legitimizing and empowering state officials’ exercise of power. While this does not suggest that courts always triumph human rights in all cases, the courts thus construct a hierarchical structure of law in which competing international commitments are organized into a coherent domestic legal order.Footnote 185
The harmonizing function of constitutional courts influences the operation of transnational legal orders in two primary ways. First, constitutional courts establish a policy agenda that guides national policymaking.Footnote 186 As discussed, the executive and legislative bodies in Lithuania and Latvia generally implemented amendments in line with the courts’ decisions. The compliance of political elites not only reinforces the legitimacy of the courts within domestic society but also strengthens the judiciary’s capacity to influence national policymaking.Footnote 187 Although the influence analyzed in this article is mainly domestic, focusing on judicial review and the protection of individual rights, the two courts’ decisions demonstrate a broader impact. For instance, the LitCC and LatCC both established policy frameworks that require governmental officials to ensure the loyalty and reliability of individuals who have access to classified information, a principle required by NATO.Footnote 188 Moreover, the LatCC’s Case No. 2005-07-01 upheld the limitation on judicial review for classified information originating from foreign states and international organizations. In doing so, the LatCC lowered the legal costs for state officials to facilitate cross-national collaboration and flow of information between member states as demanded by NATO.Footnote 189 As such, both courts have defined the legal boundaries within which governmental authorities interact with foreign and international entities.Footnote 190
Second, constitutional courts create future opportunities for policy deliberation based on international treaties.Footnote 191 In the case of Lithuania, state officials and legislative representatives debated the screening requirement for information classified as ‘restricted use’. Although state officials advocated removing the requirement in order to facilitate cross-national collaboration, legislative representatives invoked the LitCC’s 2011 decision to emphasize that NATO permits member states to adopt stricter rules for classified-information governance.Footnote 192 This invocation demonstrates that Lithuania’s NATO commitments carry significant weight in policy debates, mediated by the LitCC’s prior interpretations. By encouraging such debates, constitutional courts strengthen the authority of international organizations by embedding them within domestic legal discourse.Footnote 193
By arguing that constitutional courts are essential sites of transnational norm harmonization, this article contends that existing scholarship on the domestic incorporation of international law often overlooks the judiciary’s engagement with multiple, concurrent international commitments. These commitments often serve as catalysts for domestic disputes, enabling domestic actors to frame arguments using international legal standards.Footnote 194 In response, constitutional courts do not simply resolve domestic conflicts; they process a ‘dense web of multilateral international commitments’Footnote 195 within the domestic legal order. In doing so, they arrange the internal mechanics of domestic governance, define and implement their nations’ external relationships and shape the overall operation of transnational legal orders.Footnote 196
Shadow case study: The Constitutional Court of the Czech Republic
How can the internalization thesis be generalized beyond the cases of Lithuania and Latvia? While Estonia may be a natural extension of this article’s comparative analysis, the Supreme Court of Estonia has not produced adequate rulings concerning state secrets to test the generalizability of this article’s argument. By contrast, the Constitutional Court of the Czech Republic (the CCC) offers a substantial body of rulings in the context of state-secrets governance.Footnote 197 In particular, the CCC delivered its landmark ruling, Judgment No. Pl. ÚS 11/2000, in 2001. As the ruling was made 8 years after the ECHR entered into force in the Czech Republic in 1993, it potentially indicates a sustained and substantive engagement with the ECHR. Meanwhile, Judgment No. Pl. ÚS 11/2000 was delivered 2 years after the country’s accession to NATO in 1999, demonstrating a similar trajectory with that of Latvia given the similar temporal proximity between NATO accession and the delivery of a landmark decision. However, the CCC produced contrasting outcomes compared to the LatCC: the CCC has taken a more rights-protective approach in the context of state-secrets governance. These features thus made the CCC a useful shadow case to investigate the generalizability of this article’s theoretical framework and identify space for theoretical refinement.Footnote 198
In Judgment No. Pl. ÚS 11/2000 (2001), the CCC invalidated several provisions of the Act on Protection of Classified Information and on Amendments to Certain Acts (the Classified Information Act, No. 148/1998).Footnote 199 The case concerned a complainant’s security clearance, which had been revoked by the National Security Authority. Several provisions of the Classified Information Act empowered the Authority to determine the conditions for accessing classified information largely on the basis of its own assessment of security risks, without subjecting the decision-making process to judicial review. Furthermore, the Authority was not required to disclose its justifications to the affected person.Footnote 200 The complainant argued that the revocation, and the statutory provisions upon which it had been based, had rendered him unable to continue work requiring security clearance. Relevant governmental entities, by contrast, emphasized the necessity of strengthening control over state secrets. This is particularly significant given that the government had expressed its commitments to fulfilling the conditions for exchanging classified information with NATO and EU partners.Footnote 201
In response, the CCC emphasized that pre-established norms of fundamental rights should serve as the guiding principle for resolving the tension between security imperatives and fundamental rights in this domain. Crucially, ECtHR jurisprudence and the principles of the Czech Republic’s Charter of Fundamental Rights and Basic Freedoms were treated as applicable when determining the scope of rights protection in the present case.Footnote 202 The CCC did not invoke the Czech Republic’s NATO obligations to justify its decision. Instead, it ruled that the Classified Information Act did not establish necessary procedures for the handling of classified information, resulting in an unconstitutional concentration of power in a single executive authority. The relevant provisions were thus declared unconstitutional.Footnote 203
Judgment No. Pl. ÚS 11/2000 profoundly shaped the CCC’s subsequent jurisprudence.Footnote 204 The CCC consistently affirmed the significance of procedural guarantees in keeping with the principles established in Judgment No. Pl. ÚS 11/2000 in the context of state-secrets governance.Footnote 205 A notable development in this line of cases was Judgment No. III.ÚS 3044/10 (2010), in which the CCC rejected a complaint regarding the National Security Authority’s decision to revoke a security clearance and the Supreme Administrative Court’s judgment upholding that decision.Footnote 206 The complainant argued that during the judicial proceedings, he had had no opportunity to examine all the evidence upon which the National Security Authority had relied in reaching its decision. In response, the CCC invoked Judgment No. Pl. ÚS 11/2000 to affirm that the protection of classified information and the conditions imposed on persons handling such information may justify a less stringent standard of procedural guarantees.Footnote 207
Judgment No. III.ÚS 3044/10 (2010) was upheld by the ECtHR in Regner v. the Czech Republic (2017). The ECtHR found that the proceedings satisfied the requirements of Article 6(1) of ECHR regarding the independence and impartiality of the reviewing tribunal.Footnote 208 The applicant had been kept informed and given the opportunity to make submissions, indicating meaningful participation in the judicial proceedings to the extent possible. Moreover, the court had determined the necessity of maintaining confidentiality, which the ECtHR regarded as a robust safeguard of the applicant’s fundamental rights.Footnote 209 The ECtHR accordingly concluded that the decision-making process satisfied the requirements of independent and adversarial proceedings sufficient to protect the applicant’s interests.Footnote 210 The CCC’s approach thus retained its validity as a precedent available for subsequent adjudication.
The above analysis carries four critical implications for the generalizability of this article’s theoretical framework. First, this article’s central claim regarding prior norm internalization is supported by the CCC’s case law. The CCC’s sustained engagement with the ECHR suggests a potential deeper integration of relevant human rights standards into domestic constitutional practice than was achieved in Latvia before its foundational rulings. Accordingly, the CCC’s earlier sustained and substantive engagement with the ECHR may account for the CCC’s initial rights-protective choices. Future research may further explore how the duration and depth of ECHR engagement shape a constitutional court’s jurisprudence and its self-reinforcing implications on subsequent decisions.
Second, and more puzzlingly, the timing of NATO accession may be an imprecise proxy for the intensity of security pressure on judicial behavior in the Czech context. Judgment No. Pl. ÚS 11/2000 was delivered 2 years after the Czech Republic’s accession to NATO, meaning that NATO obligations were presumably available as justificatory resources in the proceedings. However, unlike the LatCC, the CCC did not substantially rely on them. Instead, the CCC recognized the right of access to court guaranteed under the ECHR. What can be extended from this article’s theoretical argument is that Judgment No. Pl. ÚS 11/2000 may reflect the CCC’s assessment of security pressure, policy priorities and public expectations. For instance, Latvia’s geopolitical location may subject it to greater security pressure from Russia than that confronted by the Czech Republic, thereby likely motivating the LatCC to engage with security-based arguments more substantively. If this hypothesis holds, the difference between Latvia and the Czech Republic cannot be captured by the timing of NATO accession alone. Future research may interrogate the defining features of security pressure and examine how they interact with the internalization of human rights norms and a state’s collective-defense obligations.
Third, the Czech case confirms that the self-reinforcing structure of a constitutional court’s initial choices profoundly shapes subsequent decisions. Moreover, it demonstrates space for further refinement because once an initial decision has established a fundamental framework concerning the availability of constitutional protections, later rulings may address more nuanced questions regarding the adequacy of those protections. The factual background and constitutional stakes of a case may therefore determine how courts invoke prior judgments in subsequent adjudication. Judgment No. III.ÚS 3044/10 is distinguishable from earlier CCC case law in the sense that the parties were not contesting the availability of independent judicial review per se but the adequacy of procedural guarantees. The self-reinforcing function of precedents may operate within limits defined by the evolving legal stakes and factual context of subsequent cases. Future research may further explore the generalizability of this finding.
Fourth, the ECtHR’s role in the Czech trajectory differs from its role in the Latvian context: rather than constituting a disruptive shock, the ECtHR reinforced the existing path. This differential role is likely explainable within this article’s theoretical framework: deeper ECHR norms internalization in the Czech context produced an institutional structure that satisfied the ECHR requirements, dissuading the ECtHR from intervening in the existing path of precedents. Future research may continue to explore the interaction between the ECtHR and domestic constitutional practice in the context of national security.
Taken together, the Czech case demonstrates the explanatory path of this article’s theoretical framework beyond the Baltic contexts. It confirms the path-dependence thesis and the self-reinforcing function of precedents across jurisdictions. At the same time, the shadow case identifies the limits of using the timing of NATO accession as a proxy for the intensity of security pressure on constitutional adjudication. A future comparative study needs to probe more nuanced indicators of the depth and intensity of security pressure and ECHR norms internalization, as well as the mechanisms through which they shape judicial behavior. This inquiry will help further illuminate the interaction between security pressure and ECHR norms internalization by domestic constitutional courts in the context of national security.
Conclusion
In this article, I have examined how constitutional courts in Lithuania and Latvia use the NATO treaty to harmonize competing international commitments to national security and human rights protection within the legal framework governing state secrets. Building upon a comparative analysis of the LitCC and LatCC, I have argued that judicial engagement with the NATO treaty exhibits distinct path-dependent features in this context. The early internalization of ECHR norms gave the LitCC a structural advantage, enabling it to integrate human rights standards into constitutional adjudication before NATO accession. This allowed the LitCC to recognize the legitimacy of NATO obligations following Lithuania’s accession to NATO without acquiescing to the unchecked exercise of power by political bodies. By contrast, the LatCC’s early jurisprudence initially prioritized the immediate demands of NATO obligations, a likely result of the intense security pressure channeled into constitutional adjudication at the time of Latvia’s NATO accession. The LatCC eventually departed from that path following an external shock, specifically a decision by the ECtHR, which prompted the adoption of higher levels of human rights protection in the context of state secrets, possibly out of concern that non-compliance with the ECtHR’s ruling may result in reputational losses for the LatCC or Latvia within the European community.
Based on these findings, I have further argued that the LitCC and LatCC serve as key sites of transnational norm harmonization. They establish a hierarchical structure of law that incorporates competing international commitments within domestic legal frameworks. In doing so, these courts delineate the boundaries of state power, establish new national policy agendas, facilitate ongoing policy deliberation among state institutions and structure external relationships in ways that bolster the perceived authority of international organizations. This argument reveals a critical yet underexplored role of constitutional courts in shaping the operation of transnational legal orders, a process that goes beyond the domestic implementation of international law. Instead, the cases of Lithuania and Latvia demonstrate that constitutional courts formulate a dynamic set of norms, rules and practices that govern the evolving interactions between domestic institutions, national governments and international organizations.Footnote 211
The path-dependent thesis and the norm-harmonization function of constitutional courts are especially relevant in an era of intensifying international, regional and geopolitical change. Such changes generate new security pressures of varying intensity. National governments are prompted to adopt novel responses, which are likely to become the source of legal disputes facing domestic judiciaries, including constitutional courts. At that point, constitutional courts must navigate the intensity of security justifications invoked by national governments in support of their decisions and determine the extent to which those security considerations are sufficiently weighty to alter the existing trajectory of judicial precedents. Intensifying international, regional and geopolitical pressures thus constitute a new testing ground for evaluating the depth and resilience of existing judicial trajectories shaped by the prior internalization of human rights norms.
As a concluding note, future research may further explore the alternative explanations identified and the generalizability of this article’s theoretical framework. In this article, I have identified three alternative explanations (docket sequencing, institutional design and administrative procedures). Future research may examine how these explanations interact with constitutional courts’ incorporation of human rights norms in the context of national security. In addition, future studies might investigate the generalizability of this article’s theoretical framework. It would be theoretically productive to analyze the nuanced mechanisms through which security pressure is channeled into constitutional adjudication across different regions. As the shadow case analysis has demonstrated, courts in other post-communist countries, such as the Czech Republic, reveal both empirically similar and divergent patterns concerning the judicial treatment of collective-defense treaties in the domain of state-secrets governance. Understanding the varying conditions and mechanisms through which different courts invoke international human rights and collective-defense treaties would allow future scholars to better understand the relationship between constitutional courts and the broader implications for the operation of transnational legal orders.
Acknowledgments
The author has employed AI tools to translate sources that do not have an English translation.
Competing interests
The author certifies that she has no affiliations with or involvement in any organization or entity with any financial or non-financial interest in the subject matter or materials discussed in this article.
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