Constitutional Court: Treaty Constitutionality and Legal Principles

Constitutional Court Analysis of International Treaties

The Constitutional Court can analyze any treaty, whether it contains only self-executing clauses, only non-self-executing clauses, or a combination of both types of provisions.

This precision is crucial when analyzing the treaty's constitutionality. Non-self-executing clauses, which require pre-legislative work and are not yet part of domestic law, are not considered contradictory to the Constitution at this stage because they are not yet integrated into the internal legal order. The Constitutional Court performs this analysis as outlined in the Constitution.

Therefore, in each case, the Court must first determine the nature of the treaty provisions. Only if the standard is self-executing (meaning it is already established or requires another act of authority) must the Court rule jurisdictionally on its constitutionality.

The problem with this approach is that the Court does not resolve potential infringements of state obligations caused by inadequate regulation. Nothing guarantees that the state will issue the necessary additional rules or legal regulations to effectively apply the international standard, which could lead the state to international responsibility.

Hermeneutic Principles of Constitutional and International Law Applied to Treaties

The Constitutional Court applies two main principles:

• Presumption of Constitutionality (Presumption of Legitimacy): Rules adopted by state authorities are presumed valid and lawful. It is only prudent and advisable to declare a rule unconstitutional when the Court reaches the deep conviction that the conflict between the standard and the Constitution is clear and impossible to harmonize.
• Principle of International Seriousness: Given the seriousness for a State in the international arena of declaring treaty provisions unconstitutional by a domestic court, the interpreter must make every effort, as permitted by the supreme state law, to find a compromise between the interpretation of the treaty rules and the provisions of the Constitution.

Treaty Approval and Hierarchy According to the Constitutional Court

Based on the former Article 50, No. 1 of the Constitution and the principles governing this matter, two basic rules can be inferred regarding a treaty approved by Congress: