Single title - Rule of Law Programme Middle East and North Africa
This portlet should not exist anymore
The control of treaties’ constitutionality is a topic of mayor interest to the work of the Rule of Law Programme Middle East / North Africa. It is thematically assigned to a project that is of core concern for its regional and comparative studies: The “Mapping” of Constitutional Control in the MENA region. In recent years, a rising awareness for the importance of constitutional review as an instrument for judicial oversight is being witnessed among scholars, legal practitioners and society – in the Middle East, North Africa, the Golf countries, and beyond. Institutions charged with constitutional review in the countries of the MENA region (constitutional courts and Councils, Supreme Courts, High Tribunals etc.) are undergoing fundamental reforms (e.g., Morocco, Tunisia). Some have been established for the first time (e.g., Bahrain in 2002, Iraq in 2004 or Saudi Arabia in 2009), some have been attributed new competences, and new procedures have been introduced.
While the number of online collections of constitutional documents and comments have multiplied, comprehensive surveys regarding constitutional review in the Middle East and North Africa, the ongoing reforms and achievements, the different approaches countries adopt in dealing with old and new challenges, is still lacking. Comparative analysis of the scope of jurisdiction of institutions charged with constitutional review in the region, competences and procedures, the decisions themselves and their impact on subsequent legislation, are rare or non-existent, as are studies on the often complex position of constitutional courts and councils between the state powers and the relationship with other state institutions.
This publication can be seen as part of the over-all endeavour of “Mapping Constitutional Control in the MENA Region” started by the Rule of Law Programme Middle East / North Africa in 2017, an undertaking that aims to better understand the extent and functioning of constitutional control mechanisms, its challenges and recent reforms. It shall set ground for debates on how to improve or render more effective constitutional review institutions in the MENA region by developing insights on topics of cross-cutting interest to the region and internationally1. In contemporary constitutional law the relationship between constitutional law and international law is of great importance. The recognition that certain tasks, due to their specific character, can be better dealt with in cooperation with other states, has led to an increasing number of international treaties concerning areas that are traditionally subject of national legislation. International treaties no longer exist only in classical areas of international law, such as international humanitarian law or international commercial law, but also concern environmental protection, health, cyberspace, telecommunication and transport, only to mention a few. Traditionally, the conclusion of treaties under international law has been a classic task of the executive branch. However, the growing number of international treaties in a broadening range of topics have led to the involvement of the legislature and thus the control by the judiciary. One of the first legal texts to introduce explicitly a system of ex-ante review of the constitutionality of international treaties was the French Constitution in 1958. The ex-ante review of international treaties is by now a widespread idea in Europe, Africa and Latin America - whether it is explicitly standardized or a consequence of practice.
However, the constitutional control of international treaties poses major challenges, most of them relating to the relationship between international treaties and national constitutional law – a question that is especially difficult to answer in cases the constitution remains silent on this subject. How to deal with an international treaty that is considered to be in violation of the in Art. 27: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Presenting different ways of how countries of the region accommodate the complex relation between international treaties and national constitutional law, including views from outside the region is a means to this end. With contributions on Tunisia, Egypt, Lebanon, Irak, including outlooks on France and Germany, the compilation is only a first attempt to a regional overview and invites to more comparative research. Research is becoming more easily accessible, the world becoming more and more global, regional debates may link up with international ones, inspiring one another. The symposium, held in Beirut on 25th and 26th October 2018, as a result of the fruitful cooperation between the Rule of Law Programme Middle East / North Africa with the Lebanese Center for International Studies, has been a basis for fostering ties between experts and continuous exchange on questions of constitutional control – regionally, and worldwide. I would like to express my gratitude to Marie Ghantous, for the many hours of inspiring discussions on the need of discerning to what extent and by what means constitutional control is exerted with regard to international treaties, exploring into the complex relation between constitutional law and international law; and to Issam Sleiman, for his continuous cooperation over the years in developing a forum of debate on constitutional law. To La Sagesse University, I wish to extend my thanks for the generous hospitality we experienced. For excellent support in coordination, I am grateful to Sandy Haddad and my entire team, to which I express deep appreciation for tireless assistance at all times. My thanks go out to all those who have contributed to successfully realizing this joint project. This volume shall serve to present and evaluate what options or solutions have turned out most successful in different contexts - always aware that “copy-paste” will not work, that a good solution in one country may not necessarily serve for another – but to inspire debates in regional or country specific contexts.
Dr. Anja Schoeller-Schletter