International Treaties and Constitutional Challenges: A Legal Analysis

International Treaties and Constitutional Challenges

If there are any doubts about the constitutionality in the conduct of the treaty, give full consideration to the court.

• The timing is important; the time when the consultation occurs is crucial because it's the right time to address the court.

No, not initially.

No, not one final time.

The Constitutional Tribunal (TC) is advised to act once the text is set but still without consent. A final text, but not the last, because it is not ratified. The site is requested to attend legitimate constitutional bodies.

The court shall not sentence or issue a statement. Why no sentencing? Because this is not a legal rule, since the state still has not given consent. We have a project or text that has been set but without consent. Is it a binding declaration? Yes, it obliges the state. Would you close the door completely to the business? No.

State Actions Before Declaration of Unconstitutionality

What can the state do before the declaration of unconstitutionality of the international treaty?

• Change the European Constitution (EC).
• Modify the treaty to adapt to the Constitution, enter a negotiation phase, and conclude a treaty renouncing the established terms.
• Partially approve the treaty with the introduction of reservations.

We conclude the treaty unless the other party amends my EC. Not all treaties allow reservations, just a few.

Modifying the EC will pose problems domestically and should be avoided or put in last place. Constitutional reform should be a last resort; one must first try to negotiate the text, enter reservations, or withdraw.

Subsequent Use and Control

Subsequent use (another way of control) is control thereafter. Once filed with the court on constitutional challenges, the procedure ends with a binding ruling. If there is no problem, the effects are dismissed. However, if the sentence deems the treaty unconstitutional, it poses a difficult dilemma: What effects should the court's decision have? The treaty is contrary to the EC, but the treaty is ratified and binding on the Spanish state. An alternative?

• • Ignoring the internal decision (not available).
  • Ignoring the treaty, leading to international responsibility.

To avoid bankruptcy domestically or internationally, doubtful cases of constitutionality must be raised beforehand, which then allows for appropriate corrections.

Community Law

Community Law:

Article 96 EC: "Through organic law, powers may be granted for concluding treaties by which they are attributed to an international organization or institution to exercise powers under."