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The rules of consensual international law have witnessed a tremendous development recently, so that international treaties and the other international rules that take their ruling have become – the most important means of organizing cooperation and communication between members of the international community in all fields, which made the issue of oversight over the constitutionality of international treaties of great importance, as it is related to the protection of His Highness The constitution and its sanctity before international legislation, in addition to the fact that this oversight, in its ideal form, constitutes an impenetrable dam against any violation of the sovereignty of the state, and prevents the threat to its interests, especially when there appears to be a conflict between these interests and the interests of some other international entities under the circumstances in which interests are intertwined.
Hence the great importance of addressing the issue of constitutional control of international treaties in Egypt, and the importance of holding lectures and discussion sessions on this vital topic, which raises problems related to the relationship between international law and internal law, the treaty’s rank in the hierarchy of legal rules within the state, and how to monitor the constitutionality The treaty after its entry into force, the consequences of ruling the treaty’s unconstitutionality, what is the role of the constitutional judiciary specifically in this field, what parts of the treaty around which the constitutional judge’s jurisdiction revolves, and what are the parts away from his oversight, all without addressing the new jurisdiction that The law bestowed it on the Supreme Constitutional Court under Law 137 of 2021 amending its Law No. 48 of 1979, which is to monitor the constitutionality of the decisions of international organizations and bodies and the rulings of foreign courts that are required to be implemented in the face of states. This new jurisdiction is completely far from what we are dealing with in this research.
The issue of oversight of the constitutionality of international treaties raises many problems, perhaps the most important of which is related to the issue of distributing constitutional competencies between the public authorities in the state, and between contracting or ratifying the treaty, as well as the issue of the legal value of the international treaty in the internal system, the extent to which it is considered one of the sources of legitimacy, and the position of international treaties regarding The issue of the constitutionality of laws oversight and the relationship of treaties to national constitutions will be dealt with in turn:
Definition of international treaties:
An international treaty is defined by jurisprudence as a written agreement between two or more persons of international law, whatever the name given to it, concluded in accordance with the provisions of international law with the aim of producing legal effects.
This definition is derived from Article 2, Paragraph 1/A of the Vienna Convention on the Law of Treaties of 1969, as well as from the corresponding article of the Convention on the Law of Treaties between States and International Organizations signed in Vienna on March 21, 1986.
It is learned from this definition that the international treaty is based on basic elements: (1):
That the agreement is between two or more persons of public international law.
The agreement must be in writing.
That the agreement be concluded in accordance with the provisions of international law.
To aim to create or arrange legal effects.
The Supreme Constitutional Court has dealt with the definition of the treaty “that the phrase international treaty is nothing more than a general term that extends to all forms of international agreement between two or more states if this agreement is included in one or more documents, and whatever issues it regulates, or its subject matter, and then It includes under it what is related to its concept of the forms of this agreement, whether it is a covenant, a charter, a declaration, a protocol, a system, or an exchange of two notes” (2)
The international treaty – in the judiciary of the Supreme Constitutional Court – accommodates all of these types, all of which fall under the description of “the agreement”.
The constitutional judge’s oversight of international treaties:
The constitutional judge’s oversight of the constitutionality of the international treaty has different patterns that differ according to the different systems established to control the constitutionality of laws, and these differ according to different constitutions. Remedial practice on laws after their publication and implementation.
With regard to treaties, the matter is not much different, if the legal systems’ paths regarding subjecting them to the oversight of the constitutional judge are not the same.
In some countries, the previous method of censorship is sufficient, and not others, as in France, Senegal, and Mauritania.
In other countries, treaties are basically subject to the method of prior control, with the possibility of subjecting them also to post control, like the rest of the legislation.
As is the case in Congo, Portugal, Spain, Algeria and Germany (3).
The supervision of the constitutional judge can take place in one of two ways, the direct method and the indirect method.
Monitoring in a direct manner: It means subjecting the draft treaty itself to the oversight of the constitutional judge, and his oversight is directly focused on it. It works in this way in France, Portugal, Spain and Algeria.
As for oversight through the indirect method, in which the oversight is focused on the ratification law of the treaty, like the rest of the legislation. This method is described as indirect because the judge’s examination of the constitutionality of the ratification law can lead him to examine the constitutionality of the treaty itself.
Whether the treaty is subject to previous oversight, directly or indirectly, the examination of its constitutionality does not focus only on reviewing its substantive provisions, but must also address the oversight of the form of the treaty to ensure that the provisions of its convening do not violate the constitution, and also to ensure respect for the rules of distributing jurisdiction.