The
relationship between international and domestic law constitutes one of the most
prominent challenges facing jurists of constitutional and international law.
This is because the state, through its Constitution, is obligated to develop
mechanisms that guarantee the enforcement of international treaty requirements
at the level of national law, for the state to avoid the effects of
international responsibility. Many national constitutions have stipulated
specific mechanisms for this and have clarified the status of international
treaties in the domestic legislative hierarchy, by their supremacy over
domestic legislation, their equality in strength with national legislation, or
in rare cases their supremacy over the constitution itself. In Palestine, the
current constitutional document does not specifically include the status of
international treaties in the domestic constitutional system and the domestic
legislative hierarchy. The State of Palestine’s accession to and ratification
of dozens of international treaties without reservation makes the issue of
studying the status of international treaties in the Palestinian constitutional
system a problematic one at the level of the judicial application of these
international treaties.
1.1
Research Problem
In
light of the Palestinian constitutional legislature’s inaction in clarifying
the status of international treaties in the Palestinian constitutional system,
as well as its inaction in explaining the mechanisms of integrating international
treaties into the domestic legal system, this study focuses on the consequences
of the judicial application of treaties when they are invoked before national
courts, raising a problem in the combined application of both theories of
monism and dualism, which emerged clearly in the relevant jurisprudence of the
Palestinian constitutional judiciary.
1.2
Significance of the Research
The
significance of this research lies in its attempt to ground modern theories in
the relationship between domestic and international law by extrapolating views
on jurisprudence and regarding relevant constitutions and projecting those onto
the Palestinian constitutional system. The importance of this research also
highlights the analysis of the rulings issued by the Supreme Constitutional
Court of Palestine regarding the status of international treaties in the
domestic law system and the resulting analysis in terms of placing the
constitutional system in the context of pairing monist and dualist theories.
This pairing may contribute to framing the relationship between the
international treaties that the State of Palestine has ratified and acceded to,
as well as explaining the effects and consequences of their enforcement through
judicial application.
1.3
Research Questions
This
research poses a pivotal question: What is the status of the international
treaties that the State of Palestine has ratified and acceded to in the
domestic legal system? Three sub-questions arise from this central question:
1- Has the
Palestinian constitutional system adopted the theory of monism or dualism?
2- What are the
mechanisms for integrating international treaties into the Palestinian domestic
legal system?
3- What is the
position of the Palestinian Constitutional Court’s jurisprudence regarding the
relationship between domestic and international law?
2. Mainstream
Theories Regarding the Relationship of International Treaties to Domestic Law
Jurisprudence interacts with
two basic theories to determine the relationship between international and
domestic law. While the dualism theory is based on the concept of separation of
international law and domestic law, the theory of monism is based on the idea
of the unity of international and domestic law, so that they form a single
legal bloc.[1]
As
for defining the relationship between international and domestic law and
approaching it with views that can be projected onto the Palestinian
constitutional system, research is required into these two theories as the
division among them is still unclear and does not stop at the point of
jurisprudential disagreement. The argument has also touched the judicial
application within the national courts. This embrace requires clarifying the
idea on which each of the two theories is based, by the following two main
points:
1
2.1
Research Structure
Monism
is based on “the unity of both international and domestic law and its formation
of one legal system according to a gradual hierarchy, such that the lower rule
is subject to the higher rule, reaching the basic upper rule that governs all
rules.” This theory is considered an extension of the modern positivist school,
which maintains that international and domestic law constitute one legal
system.[2] Although the proponents of this theory agree on the unity
of international and domestic law, they differ in determining the superiority
of any law over the other, and this reflects a difference in the concept of
gradation of the rules of these two laws in terms of which rules are applicable
when a conflict occurs between them.
The
proponents of this theory are
divided into two different categories. The first calls for the unity of
international and domestic law with the supremacy of domestic law. This
category is expressed mainly by the jurist Eric
Kauffman (1880-1972)[3], who said, “The basic rule of the
international and domestic legal system is found in domestic law, given that
national constitutions express the will of states to accept their international
obligations, and this is what places the constitution and domestic laws in a
higher rank than international law, especially since the constitution
undertakes the process of organizing international obligations and determining
the arrangement of these rules of international law in the domestic legal
system, plus the authorities competent to conclude treaties determine the
constitutional conditions associated with their conclusion, ratification and
entry into force.”[4] Accordingly, proponents of the theory of monism with the
supremacy of domestic law believe that public international law is nothing but
a branch of domestic law.
The
second category is based on the recognition of the unity of international and
domestic law but with the supremacy of international law as the basic rule
under which the rules of domestic law fall. The proponents
of this category, including the jurists Hans Kelsen (1881-1973)[5] and Alfred Verdross (1890-1980),[6] base their opinion on the fact
that “international law is supreme because its rules have a broader
application, as the state itself, with all its legal institutions, is subject
to international law that applies to all states, and therefore international
law will apply to all legal institutions existing in all states around the
world, which makes international law superior to domestic law.”[7]
In
light of this idea, and with the prevailing theory of monism indicating the
supremacy of international law over domestic law, this theory has become,
according to this perception, “one of the basic paths for integrating
international obligations into the domestic legal system. The feature that
distinguishes it in the case of a conflict between the rules of international
law and the rules of domestic law is the predominance of international rules as
they have hierarchical supremacy over domestic rules.” The proponents of this
theory liken the relationship of international law to domestic law and to the
nature of the relationship that exists between state laws in the federal and
central legal system, which gives priority to the enforcement of the federal
and central laws in the case of a conflict.
2.2
The Theory of Dualism
The theory of dualism is
considered an extension of the non-legally binding school in explaining the
basis of the binding force of international law. It is based on the different
sources of both international law and domestic law, and the difference in the
legal nature and structure of the two legal systems, in addition to the
difference in the subject and persons addressed by legal rules in the two
systems. Adopting this theory results in complete independence between the two
systems, and the domestic judiciary refrains from applying international legal
rules unless they are transformed into domestic legal rules through what is
called reception, which is “the process of converting the rules of
international law into domestic rules by creating domestic rules from the
legislative authority in the state.”[8] This is because international laws cannot be applied
internally in countries that adopt the theory of dualism unless their
ratification at the international level is accompanied by an internal procedure
that gives them the status of application within the domestic legal system.
In
light of the mechanisms included in the reception process for transforming
international rules into domestic legal rules, it is evident that this process
is not merely a process that includes formal procedures for putting a treaty
into application, but rather one that represents an objective process related
to the idea of dualism of law. For instance, Article 29 of Ireland’s
constitution states, “No international convention shall constitute part of the
domestic law of the state except what may be approved by Parliament.”
Additionally, the Kuwaiti Constitution, issued in 1962, contains a ruling
similar to that of the aforementioned ruling in Article 70 that states “The
Emir shall conclude treaties by decree and notify them immediately to the
National Assembly, accompanied by an appropriate statement. The treaty shall
have the force of law after its conclusion, ratification, and publication in
the Official Gazette. However, peace and alliance treaties, treaties related to
the state’s lands or natural resources, sovereign rights, or the public and
private rights of citizens, trade, navigation, and residency treaties, and
treaties that charge the state treasury some expenditures not included in the
budget or include an amendment to the laws of Kuwait, must be issued by law to
enter into force. In no case may a treaty contain secret terms that contradict
its public terms.”[9]
The
proponents of this theory, led by the German jurist Karl Strupp (1886-1940) and the Italian jurist Dionisio Anzilotti (1867–1950) argue that international and
domestic law do not overlap and are separate, so that each is independent of
the other, for multiple considerations, including the differences in the
sources, persons, and topics of the two, plus the structure and legal
composition of the two systems differ.[10] The proponents of this theory
justify their opinion by saying “domestic law is formed by the solo will of the
state, while international law is formed by the common will of a number of
states, which leads to a discrepancy in the sources of both laws. The same
concept applies in terms of the people being addressed, because the rules of
domestic law primarily address individuals, while international rules address
states. This also applies to the subjects of the two laws, because
international law regulates relations between states, while domestic law
regulates relations between individuals.”[11]
The
proponents of this theory also believe that “The state’s failure to comply with
its international obligations does not invalidate the domestic law that
violates the international obligation. Rather, the domestic law remains valid,
and the violation only results in the state’s bearing international
responsibility. This requires that the concept of independence means that
international laws cannot acquire binding character at the domestic level
unless the state takes legislative action by which the content of international
rules is transformed into domestic rules, through the normal procedures for
issuing domestic legal rules.”[12] This is what leads the
author to say that the role of the domestic judiciary is limited only to
considering what is before it based on interpreting and applying domestic law
only, without applying international rules, unless the legislative authority
takes the formal procedures prescribed to transform those rules into domestic
rules. Countries that adopted the theory of dualism of law; include France
before 1940, the United Kingdom, Kuwait, and Jordan, where measures are
required by the legislative authority or the head of state to enforce them in
the domestic legal system.[13]
Despite
the importance of the dualism theory, modern international legal jurisprudence
has come to believe that this theory is untenable in light of the stability of
many international treaties to address individuals in countries directly, as
well as their imposition of obligations on individuals such as those related to
preventing human rights violations. It has become clear that “The rules of
international law are not limited to regulating relations between states, but
rather extend that to concern for human rights in states. In addition, the
difference between the sources of international law and domestic law is
apparent and it does not reflect a difference in the legislative structure
between them.
As
a result, despite the importance of these two theories in the academic arena,
they have become currently irrelevant. This is because countries, through their
constitutions, have begun to adopt practical positions. For example, a single
constitution adopts monist trends and at the same time takes on some aspects of
dualism, including what was stipulated in the new Moroccan Constitution of
2011, where some scholars went on to say that this constitution has moved
“toward a compromise theory” between these two theories. This aligns with what
Charles Rousseau (1902-1993) proposed regarding the description of
international law, in form and content, as a law of coexistence and
coordination.[14]
The
dualism theory in many countries, such as the United Kingdom, considers
international law a part of domestic law immediately after being received into
the domestic legal system. In other countries, this difference tends to be
unclear.[15] In most democratic
countries outside the Commonwealth of Nations, the legislative authority is
responsible for ratifying international treaties so that they become directly
enforceable in domestic law. The United States, for example, has a mixed
system, as treaties ratified by the constitution automatically become part of
domestic law. Some treaties are applied automatically. For instance, Article VI
of the United States Constitution stipulates that treaties are part of the
supreme law of the state. However, the United States Supreme Court reaffirmed
that some treaties are not self-executing, as in the 2008 case Medellín v.
Texas.[16] These treaties must be
implemented under domestic rules before their provisions can be enforced by
national courts.
As for
customary international law, the U.S. Supreme Court stated in the 1900 case Paquete
Habana,[17] “International law is part
of American law,” but also stated that international law would not apply in the
event of a conflicting legislative, executive, or judicial law.
The
French legal system stipulates that a treaty to enter into force in French
domestic law must be ratified by the competent authorities and published in the
Official Gazette. The publication procedure aims to inform the public authorities
and individuals within the country of the treaty so that there is sufficient
evidence, and so that the legal effects arising from its conclusion are
produced in terms of establishing rights for individuals, institutions and
companies, or burdening them with obligations, according to the circumstances.
For these reasons, ratification of the treaty and then publication are required
for it to enter into force within French domestic law.[18] Another approach entails
that “A valid treaty is considered effective and enforceable without the need
to issue domestic legislation, as it is in the Spanish and the Dutch
Constitutions.”[19] Others maintain: “There is
nothing in the field of application of international law that favors one of the
previous two theories over the other, but rather this application tends to the
ideas of separation and connection together. The truth of the matter is that
international and domestic law - even if they are not a single legal bloc - are
not at the same time separate, as the connection between the two sets of laws
exists to a large extent, but without reaching the point of saying that they
are merging into one system. Rather, each of them maintains itself as an entity
and sphere of authority independent of each other.” [20]
In
general, international law jurists, regarding determining the rank of
international treaties about domestic law, have settled on the superiority of
international legal rules over domestic law. However, they have differentiated
between Human Rights treaties and others, considering that, “International
human rights rules are peremptory rules that must be respected even if there is
no contractual agreement regarding them because violating these rights is
violating the public interest of the international community, as violating
these rights results in a violation of rules related to human values, which
objectively exceed the political borders of states. Additionally, violating
these rights leads to violating values that the international
community is enabling to prevail, which are well-founded in international
practice. The proponents of this trend agree with the International Court of
Justice’s 1951 Advisory Opinion regarding the 1948 reservations made to the
Convention on the Prevention and Punishment of the Crime of Genocide, which
included considering the principles contained in that agreement as binding even
in the absence of contractual obligations.”[21]
In
the same sequence, “The jurisprudence of the international judiciary has
settled on affirming the principle of the supremacy of international treaties
over domestic law, in implementation of the provisions of Article 27 of the
Vienna Convention on the Law of Treaties of 1969, which stipulates that, “A party may not invoke the
provisions of its internal law as justification for its failure to perform a
treaty. This rule is without prejudice to Article 46.”[22]
2.3
The Status of International Treaties in the
Palestinian Basic Law and the Jurisprudence of the Constitutional Judiciary
In this section, the author
will address the perspective of the Palestinian Basic Law and jurisprudence on
determining the rank of international treaties in the domestic legal system
through two divisions. The first division reviews the position of the
Palestinian Basic Law on determining the rank of international treaties in the
domestic legal system, while the second reviews the position of the Supreme
Constitutional Court on determining the rank of international treaties in
domestic law.
2
3. The Status
of International Treaties in the Palestinian Basic Law
In the amended Palestinian
Basic Law of 2003, the constitutional document applicable in Palestine, the
constitutional legislature followed the approach of inaction about the text
regarding the place of international treaties in the domestic legislative
pyramid. This is because it lacked an explicit reference to the place of
treaties in the Palestinian legal system and it was content with an implicit
reference to the important value of international human rights treaties.
Article 10 of the Palestinian
Basic Law of 2003
states, “1-Basic human
rights and liberties shall be protected and respected. 2- The Palestinian
National Authority shall work without delay to become a party to regional and
international declarations and covenants that protect human rights.”[23]
A
part of scholars believes that the failure of the Palestinian Basic Law to
address rank and
integration mechanisms of
international rules through its articles in the text; leads one to believe that
the priority has been determined in favor of the constitution and laws, given
that no status has been determined for international rules in the national
system. Accordingly, all the rights contained in these treaties will remain,
from a constitutional standpoint, at the mercy of the ordinary legislator. This
denies the supremacy of international treaties and their meaning. In addition,
the document does not include numerous factors that must be present to
determine the status of the treaties in domestic law. Among them is the failure
to address the authority competent to conclude and ratify treaties and the
mechanisms for localizing and enforcing them, as they were enforced through the
executive authority by issuing some of them in the form of a law which is
issued by the Legislative Council, or in form of a decree that issued by the
President of Palestine. Others were issued in the form of a decree-law, and
some of them were through decisions issued by the Council of Ministers, without
any legal basis.[24]
In
this regard and based on the aforementioned Article 10 of the Palestinian Basic
Law, the Palestinian Court of Cassation issued a decision in its ruling in
Appeal No. 56 (2014) that there was a suspicion of unconstitutionality in the
text of Article 16, Paragraph 1[25] of the Juvenile Reform Law No. 16
(1954),[26] and referred the matter to
the Supreme Court in its constitutional capacity to decide on the
constitutional issue. The Court of Cassation decided that the Juvenile
Correction Law’s inclusion of the impermissibility of cassation appeal in the
Court of Appeal rulings related to the cases of delinquent children was its
final ruling. It further found that this could constitute a constitutional
violation of the provisions of the amended Palestinian Basic Law of 2003, as it
is an effective constitutional document.
If
it is consistent that the Court of Cassation’s application of the
constitutional defense by way of referral in an appeal submitted to it is
considered a unique ruling in itself, then the contents of the ruling indicate
the existence of judicial thought based on its spirit on a desire to devote the
role of the judiciary to harmonizing legislation with the treaties it has had
ratified recently.[27] This ruling was based on
the provisions of the Convention on the Rights of the Child of 1989, which the
State of Palestine ratified on 2 April 2014, as well as on the text of Article
10 of the aforementioned Palestinian Basic Law.
Although
the aforementioned Court of Cassation ruling does not include anything
explicitly indicating that it has a clear vision of the relationship between
domestic legislation and international treaties, and even though the Court of
Cassation used the constitutional appeal by way of referral for implementing
the international treaties, we can say that the failure to enshrine the
supremacy of the constitution does not prevent the Palestinian national
judiciary from relying on the application of international treaties to resolve
various disputes, and even allowing them to prevail over domestic laws in many
provisions. This includes the ruling of the Palestinian Court of Appeal in
Civil Appeal No. 220 (2008),[28] in which “adherence to the
contradiction between the international agreement signed between the
Palestinian National Authority and the United Nations Refugee and Works Agency (UNRWA)
is misplaced” because the immunity enjoyed by the UNRWA stems from
international conventions according to the rules of international law,
especially the International Convention on the Immunity and Privileges of the
United Nations of 1946.
In
the same context, the Palestinian Court of Appeal in Civil Appeal No. 17 (2009)
gave priority to Article 105 of the United Nations Charter, which contradicts
the Palestinian Basic Law, as well as what was stated in the ruling of the
Jenin Court of First Instance in its legal capacity No. 542 (2015),[29] when it indicated “The
aforementioned headquarters agreement, which was signed by the Palestinian
National Authority, is an international agreement that stipulates immunity for
the defendant, and since this agreement is binding on the Palestinian National
Authority, it is the highest in application, as it relates to international law
and has a higher legal rank than the laws applied within the areas of the
Palestinian National Authority.”
In
another context, the amended Palestinian Basic Law of 2003 did not contain a
text clarifying the mechanisms for ratifying international treaties as stated
in the comparative constitutional documents, noting that the Palestinian
Council of Ministers had issued Resolution No. 51 of 2004 regarding the signing
of bilateral agreements, which prohibited the signing of any bilateral
agreements by any official Palestinian body unless it is approved by the
Council of Ministers.[30] Article 79 of the third
amended version of the draft Constitution of the State of Palestine stipulated
a specific mechanism for that,[31] and it has been customary
for the Palestinian President to sign international treaties and conventions
directly without submitting them to any legislative or executive body for approval,
which creates many problems regarding the legality of their implementation.
Since Palestinian Basic Law does not specify whether the condition of
publication is necessary for enforcement, this circumstance makes the
mechanisms for integrating international treaties into the Palestinian domestic
legal system a problematic issue in judicial application, in addition to the
problem of lack of a constitutional stipulation of the status of international
treaties in domestic law.
3.1
The Status of International Treaties in the
Domestic Legal System in the Jurisprudence of the Constitutional Judiciary
For the first time through
Constitutional Appeal No. 4 (2017), the Supreme Constitutional Court addressed
the issue of the status of international treaties in the Palestinian domestic
legal system. The ruling was based on a constitutional referral from the Jenin
magistrate judge in support of Article 27, Paragraph 2 of the Constitutional
Court Law, where the Constitutional Court found that international jurisprudence
and judiciary have established a common understanding that international
treaties express in essence, the will of states to express their sovereignty in
signing and ratifying international treaties. The state’s expression of this
sovereignty indicates that it has implicitly accepted to give up part of its
sovereignty in favor of the rule of public international law by expressing a
common will among states to ratify these treaties in terms of the right of the
international community to form a system of international law in which
international rules, both conventional and customary, become part of domestic
law. As a result, it has become untenable for states’ adherence to their
sovereignty to be an obstacle to respecting their legal obligations. “International
treaties emanating primarily from the Charter of the United Nations and the
human rights conventions that carry within some rights have become jus cogens.”
The Constitutional Court concluded that international agreements supersede
domestic legislation so that the rules of these agreements acquire a higher
force than domestic legislation in a way consistent with the Palestinian
people’s national, religious, and cultural identity.
In
the context of commenting on the aforementioned court decision, one side of
jurisprudence believed that it cannot be assumed that there is a place for
international treaties within domestic legal systems without the presence of a
constitutional text regulating them —especially in light of the presence of
explicit texts in terms of the responsible party (the Legislative Council in
the case of laws, and the head of the Palestinian National Authority in the
case of decree law) regarding the enactment of legislation, which is considered
in principle to be closer to “continental law” or “civil law” systems. However,
in the absence of regulation of the status of the international treaty, the
author can only conclude that those international treaties ratified by the
President of the Authority cannot be relied upon before the Palestinian courts,
and their application to disputes that take place in Palestine and are
considered by the national courts cannot be claimed. In other words, the State
of Palestine is violating its international obligations in that it does not do
what is necessary to ensure the implementation of international treaties.[32]
The
author believes that this ruling raises a very important issue related to a
problem facing many constitutional systems; namely, the problem of the conflict
between the universality of human rights and national specificity. Even though
the ruling the Palestinian Constitutional Court referred to has ruled that
international treaties prevail over domestic legislation, which is a trend that
is consistent with most comparative constitutional systems and what the
jurisprudence of international law has settled on, it has placed restrictions
on this transcendence, by stipulating that international treaties must be
compatible with the national, religious, and cultural identity of the
Palestinian people. It seems clear that the restrictions included in this
caveat amount to a large extent to what was stated in the issue of the Moroccan
Constitution of 2011, which stipulated the supremacy of international treaty
law to be within the scope of the provisions of the Constitution, the laws of
the Kingdom of Morocco, and its rooted national identity.
In
addition, the author believes that these restrictions comprise the
constitutional text, as well as the result of the Court’s ruling, characterized
by the lack of definitive significance in determining the rank of international
treaties about domestic laws because the concept of national, religious, and
cultural identity is considered a broad concept and is subject to many
interpretations at the level of judicial application. One way to address this
problem is to allow the state parties to make reservations on the texts of the
treaty. However, “adherence to privacy in implementation of the philosophy of
human rights and respect for the will of peoples and their culture must be
interpreted narrowly in line to recognize this exception, and this exception
must not be a means used by state governments to evade the application of
international human rights treaties, and thus adherence to privacy is
permissible from a logical standpoint based on respect for others.”[33]
In
this context, and with the possibility of this problem emerging at the level of
judicial application, what is included in the ruling of the Constitutional
Court may constitute an entry point for holding a Palestinian State responsible
for repudiating the Convention it ratified and acceded to. This has been raised
by international contractual committees as a repudiation of the state’s
obligations. The contractual obligations of Palestine, including what the Committee
on the Elimination of Discrimination Against Women expressed in its concluding
observations on the initial report of the State of Palestine regarding its
concern about linking the superiority of the provisions of the (CEDAW)
Convention to the extent of its compatibility with the national, religious and
cultural identity of the Palestinian people.”[34]
What
is also striking about the referenced Constitutional Court ruling is that the
Court ruled that international treaties are acts of sovereignty, when it indicated
that “the apparent text of Article 30/2 of the amended Basic Law did not refer
to international treaties, as it indicated the lack of legal immunity. Any
administrative decision or action is subject to judicial oversight. Therefore,
international treaties are not administrative decisions or actions but rather
have been classified in the context of administrative law as acts of
sovereignty that are beyond the oversight of the administrative judiciary.
Therefore, the claim that UNRWA’s work is unconstitutional from judicial
oversight by the headquarters agreement has no basis in the Basic Law.”[35]
In
essence, it seems that the Court is stating that international treaties are
acts of sovereignty that go against the scope of the administrative judiciary’s
control and have no status in the matter of ruling and referral. The referral
decision from the Jenin Magistrate Court dealt with the imposition of the
headquarters agreement regarding the fortification of UNRWA institutions
against the Palestinian citizen on suspicion of diminishing the right of the
Palestinian citizen to litigate by the text of Article 30 of the Basic Law. It
was envisaged that the Court would rule, as it concluded in the report, on the
superiority of this agreement without deciding to consider international
treaties as acts of sovereignty because acts of sovereignty involve clear
violations of the principle of legality and clear away the concept of the state
of law, and may lead to giving the executive authority absolute power to do whatever
it wishes without supervision or accountability, thus violating public rights
and freedoms.[36]
Also,
the Palestinian Supreme Court of Justice had decided in its ruling No. 531
(2010) that “acts of sovereignty are by nature administrative acts and that the
argument that some administrative decisions are acts of sovereignty aims to
protect these decisions from judicial oversight because they are tainted with
illegality, which has led to jurists considering them to be acts of
sovereignty.” Moreover, the Palestinian legislature has agreed with the
conclusions of jurisprudence in this regard and stipulated in Article 30 of the
Basic Law that it is prohibited to stipulate in the laws that any decision or
administrative action is shielded from judicial oversight.”[37]
After
issuing the aforementioned Constitutional Court ruling, the Palestinian
Constitutional Court once again raised the issue of the status of international
treaties in the Palestinian domestic law system in its decision on 2017’s
Constitutional Interpretation No. 5 (Request No. 2 of Judicial Year 3).[38] The aforementioned
interpretation decision is closely linked to its ruling No. 4 (2017) in
Constitutional Appeal No. 4 (2017) in terms of the subject matter, as
Constitutional Interpretation No. 5 (2017) was issued based on a letter by the
Minister of Justice and upon a request from the Prime Minister on 10/19/2017
submitted by the Minister of Foreign Affairs and Expatriates to interpret
Article 10 of the Amended Basic Law of 2003 based on Article 103 of the Basic
Law, Article 24/2 and Article 30/1 of the Supreme Constitutional Court Law, and
the aforementioned Article 10 of the Basic Law, which states: “1- Human rights
and fundamental freedoms are binding and must be respected. 2- The Palestinian
National Authority shall work without delay to accede to regional and
international declarations, treaties and conventions that protect human
rights.” Thus, Article 10 is considered the only Article in the Basic Law that
is suitable as an entry point for clarifying the position of the Basic Law
regarding the status of international human rights conventions and other
treaties about Palestinian legislation.
What
is remarkable about this interpretation is that the Supreme Constitutional
Court has cited it in form and subject despite the issuance of the ruling in
question earlier. This ruling affirmed the supremacy of international treaties
over legislation, and even affirmed the supremacy of the headquarters agreement
between the Palestinian Authority and UNRWA over Palestinian legislation. The
matter is, it was expected that the Court would decide to reject the
interpretation request because its subject had previously been decided in the
judgment No. 4 (2017), Case No. 12 of Judicial Year 2 of the Supreme
Constitutional Court.
The
author believes that the aforementioned constitutional interpretation decision
went beyond the contents of the previous constitutional ruling No. 4 (2017)
referred to previously, as the constitutional interpretation reached an
expanded conclusion that the Declaration of Independence document is considered
an integral part of the constitutional system in Palestine, and even superior.
Then comes the Palestinian Basic Law, and since the Supreme Constitutional
Court in Palestine has declared the supremacy of international treaties and
conventions over ordinary domestic legislation (laws and decrees),
international treaties and conventions rank lower than the Basic Law, followed
by the various laws in force in Palestine. The President of the state must
ratify the treaties and international conventions, according to what was stated
in the text of the interpretation decision, and the treaty or Convention in
itself is not considered an applied law in Palestine. Rather, it must gain
force by passing through the formal stages that must be available to issue a
specific domestic law to be enforced.
The
respect for human rights and fundamental freedoms and the foundations of
obligation and commitment at the national level is achieved by integrating
these various international treaties and conventions on human rights into
ordinary legislation in the State of Palestine. This must be done in a manner
that does not contradict the religious and cultural identity of the Palestinian
people. It must be done based on respect for the principle that the
constitutionality of any legislation attempting to implement the treaties and
conventions of international human rights standards depends on consistency with
the Basic Law. It is necessary to make a set of domestic legislative measures
and procedures to facilitate the implementation of these basic rights and
freedoms within the process of reviewing various relevant laws and legislation.
In this way, we can aim to achieve better integration of many of the
requirements of international treaties related to human rights that have been
ratified by the President of the State of Palestine. This will take place
through reviewing Palestine’s legal systems, the compatibility of its domestic
legislation with international mechanisms for human protection and dignity, and
setting priorities in the field of compatibility.[39]
Moreover,
the author finds that the Supreme Constitutional Court, in Constitutional
Appeal No. 4 (2017), Case No. 12 of the 2nd Judicial Year, confirmed the
superiority of the rules of international law over domestic legislation, even
if these international rules have not been incorporated into domestic law,
provided that the treaties are international standards compatible with the
national, religious, and cultural identity of the Palestinian Arab people. This
ruling also confirmed the non-obligation of incorporating international rules
into domestic law to stipulate their supremacy, as the Court explicitly
indicated that the inaction of the Basic Law means, according to what
jurisprudence has established that specific mechanisms are not required to
integrate the requirements of these international treaties into the domestic
law system or to remove any contrary provisions.
This
ruling raises many differing opinions, as one school of jurisprudence believes
that although the state has the right to conduct the initial stages of forming
an international treaty so that it becomes binding within the scope of
international law, the actual implementation of the treaty in the domestic
sphere requires legal action by the internal authorities of the state, that is,
the publication of the treaty law by the competent internal authorities of the
state ratifying the international treaty following the conditions established
in this regard, so that it becomes effective and binding on the date of this
procedure. Accordingly, the international treaty does not acquire a mandatory
status and cannot be considered effective in the domestic legal system except
after this legal action is carried out. Without it, the international treaty,
and the provisions it contains within the framework of international rules
remain irrelevant to domestic law.[40]
In
contrast to the previous viewpoint, there is a group of scholars that believes
that an international treaty, once ratified, becomes effective without the need
to carry out internal procedures. They believe in what is called self-executing
treaties, which do not require the issuance of domestic legislation. In their
view, the international treaty does not even need the issuance of domestic
legislation. To become effective because international law and domestic law are
only two parts of one legal system, one domestic and the other international,
and the latter has priority and superiority, then its rules are applied without
the need to carry out internal procedures. This is not prevented by the
requirement of some constitutional systems to publish international treaties in
the Official Gazette, as publication in the Gazette is nothing but a physical
act required by the legislature, as are the domestic laws that require this, so
that everyone is informed of the provisions of these laws of the treaties.[41]
This
jurisprudential disagreement was reflected and increased after the Supreme
Constitutional Court issued its decision in the subsequent interpretation
request on this ruling, referred to in Interpretation Request No. 5 (2017).[42] It has receded from this
jurisprudence to confirm that the treaty or agreement is not in itself a law
applied in Palestine, but rather it must gain strength by passing through the
formal stages that must be met to issue a specific domestic law to enforce it.
In other words, the agreement does not have the authority to enter into force
unless it passes parliamentary approval and is published afterwards. This is
not mentioned in any text in the Palestinian Basic Law, and in essence, it
contradicts what the Court ruled previously in Constitutional Appeal No. 4
(2017)[43] Case No. 12 in the 2nd
Judicial Year of the Supreme Constitutional Court (“Constitutional”). It is
unnecessary to incorporate international rules into domestic law to stipulate
their supremacy and enforcement at the domestic level. Indeed, in this
interpretation, the Court stipulated the necessity of taking a set of domestic
legislative measures and procedures to facilitate the implementation of these
fundamental rights and freedoms within the process of reviewing the various
relevant laws. This should be done to achieve a better integration of many of
the requirements of international treaties related to human rights that were
ratified by the President of the State of Palestine. This should be done by
reviewing the Palestinian legal system, the extent of compatibility of its
domestic legislation with international mechanisms for human dignity and
protection and setting priorities in the field of such compatibility. This
means that there must be a process of receiving international rules to be
entered into the framework of domestic laws. It also means that the Palestinian
constitutional system has adopted the doctrine of dualism, contrary to what the
Court ruled in the ruling under Commentary, which suggested that the
constitutional system had adopted the monism system.
In
this regard, some professional Palestinian views in the field of international
and domestic law considered that the Court, in its decision, addressed the
issue of the system adopted by Palestine regarding the integration of
international treaties into the domestic legal system, and that there is no
indication of either systems decisively available under the Basic Law. [44]
Regarding
the requirement to publish a treaty for its validity in the Palestinian
domestic legal system, as stated in the interpretation decision, some jurists
believe that publishing a treaty in the Official Gazette does not in itself
make it binding, as it is binding on the state even without publishing it, once
it is joined or ratified. Publishing in the Official Gazette has another
purpose related to informing the citizens of the law, which means that the
treaties to which Palestine has acceded become effective and binding even
before their publication.[45]
In
the constitutional interpretation decision, the Court also attempted to
differentiate between law-making treaties and contractual treaties, in the
context of justifying its ruling and the necessity of publication to enforce a
treaty. The distinction between legitimate treaties and contractual treaties is
considered one of the most widespread and stable divisions in international
jurisprudence, as traditional jurisprudence found in it an acceptable legal
interpretation of the new phenomenon, which the international community has
known since the early nineteenth century. This has been represented by the
increasing recourse to collective international treaties, which establish mere
international legal rules, compared to the traditional legal form of a
bilateral treaty, which relates to the settlement of special situations for the
parties to it, and creates mutual international obligations on it.
This
distinction appealed to some jurists in that they found in it the technical
means to highlight the legislative role of states in the international
community. The legitimate treaty aims to create new, general and mere
international legal rules, while parties to the treaty aim to create
corresponding obligations that differ from one party to another. This is due to
the unity of the subject; some of them do not create new principles or rules in
international law, but rather constitute an expanded text for bilateral
treaties, and are often collective or multilateral treaties. As for contractual
conventions, they are those concluded between international law parties in a
matter of their own, that is, between two states or a limited number of states.
This type of Convention only binds those who sign it, and its effect does not
include countries that are not signatories to it, as they are not a party to
it, such as agreements of alliance, reconciliation, and demarcation of borders.[46]
In
light of this understanding, the researcher believes that the Court’s attempt
to create this paradox to distinguish between the effect of legitimate and
illegitimate treaties is a useless distinction in the context of the absence of
any distinction between legitimate conventions and contractual conventions in
the Palestinian Basic Law, which makes what the Court mentioned merely a
theoretical analysis with no basis in terms of legislative impact.
Concluding Remarks
This
study has elaborated a set of results and recommendations as follows:
Results:
-
The
Palestinian constitutional system has not resolved the issue of adopting either
the monism or dualism theory. The constitutional legislature’s inaction about
clarifying the mechanism for integrating these treaties, with a reading of
Article (10) thereof, can be interpreted as adopting a system of monism, as the
absence of a requirement to publish or integrate the treaty into domestic law
means that the theory of reception applied in the dualism theory does not
exist.
-
The
Constitutional Court adopts a mix of both monism and dualism in its rulings. In
addition, the Court has included, in its rulings regarding the status of
international treaties, the problem of the conflict between the universality of
human rights and national specificity. Although the aforementioned ruling of
the Palestinian Constitutional Court found that international treaties prevail
over domestic legislation, this viewpoint is consistent with most comparative
constitutional systems and what the supremacy of international law has
established. However, the court ruling placed restrictions on this supremacy,
when it required that international conventions be compatible with the
national, religious and cultural identity of the Palestinian people, which
raised concerns in the CEDAW international contractual committee.
-
The
ordinary Palestinian judiciary tends to affirm the supremacy of the
international treaties over domestic law, although this tendency does not have
a constitutional basis. In this context, the Palestinian Constitutional Court
created conditions for entry into force of a treaty that was not stipulated in
the Palestinian Basic Law when it ruled that international rules must be
incorporated into domestic law due to the requirement that they be published
and issued by the authority. Furthermore, the Constitutional Court contradicted
what was stated in the Interpretation Request No. 5 (2017), as it has receded
from jurisprudence to confirm that a treaty or Convention in itself is not
considered a law applied in Palestine. Rather, it must gain effect by passing
through the formal procedures to issue as a specific domestic law to be
enforced. In other words, a treaty does not have the authority to be enforced
unless it passes parliamentary approval and publication thereafter, which is
not included in Appeal No. 4 (2017).
Recommendations:
-
The
necessity for the constitutional judiciary to take a decisive perspective
towards the statute of international treaties through abolishing the
contradiction within its rulings by issuing a new interpretational decision
that adopts monism theory due to the absence of any restrictions within the
Palestinian Basic Law.
-
The
importance for Palestinian judges to enhance, through their rulings, the
adoption of the common orientation of enforcement of international treaties as
they enjoy a priority over domestic law once the Palestinian authority joins
these treaties.
-
The
study recommends amending the article (10) of the Palestinian Basic Law by the
legislative council to state the supremacy of international agreements over the
regular legislations within the Palestinian legal system.
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