Application of International Law in the Domestic Legal Order: Control of Treaties’ Constitutionality

From 25th to 27th October, the Rule of Law Programme Middle East / North Africa of the Konrad-Adenauer-Stiftung conduct in cooperation with the Lebanese Centre for International Studies (LCIS) a workshop on the unconstitutionality of treaties.


Since the drafting and the formation of the new Lebanese Constitution in 1990 laying down the basic values of statehood, fundamental rights, main paradigms of the rule of law, independent administration of justice, and separation of powers, the constitutional court has taken over the role as guardian of these values by enforcing the constitutional norms, monitoring their implementation and declaring the nullity of Government Acts (actes de Gouvernement).

However, the bylaws of the Lebanese Constitutional Court do not address the issue of unconstitutional treaties. The court has, indeed, the responsibility to control the constitutionality of the acts of the Legislative and Executive power, such as laws and decrees. But the question has different facets.

On the one hand, a Treaty, as a deed of the Executive power is considered as an act of sovereignty (acte de souveraineté). Should it thus be submitted as such to the control of the Constitutional Court, or is it not falling under its jurisdiction?

On the other hand, a treaty that was duly ratified by competent authorities acquires force in the international legal system and creates duties and obligations for the State. If such treaty is declared null and void internally (e.g. by a Constitutional Court), the State, by refusing the implementation of the afore-mentioned treaty would violate its international obligations. Is there a mechanism for prior ratification control?

The Lebanese Constitution is silent about the hierarchy of the norms, and the by-laws of the Constitutional Court did not tackle this issue. Article 2 of the Code of Civil Procedure declares the supremacy of Treaties in the norms hierarchy, and imposes to the Judge to apply the Treaty if there is contradiction between a duly ratified Treaty and a Law. Nevertheless, what if the Treaty is not in conformity with the Constitution? Is the Judge forced to apply such Treaty? The domestic judge is not entitled to raise the issue of unconstitutionality of a law; therefore, he cannot refuse to apply a Treaty for this reason, which means that technically he is obliged to apply an unconstitutional treaty. This raises again the question of who is eligible and competent to declare the unconstitutionality of a treaty?

By bringing together constitutional and international experts from the MENA and Europe the workshop intends to compare the different regulatory models and options that have been developed in different countries, their practical application and relevance, that should lead the way to find a solution for how to coherently deal with the existing discrepancies and contradictions in Lebanon

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The Control of the Constitutionality of Treaties
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Dr. jur. Anja Schoeller-Schletter