CYIL vol. 11 (2020)

ABDULLAH ALDMOUR CYIL 11 (2020) the hierarchy of the internal order. Article 33 provides that the Executive Power has vested the right to negotiate and ratify Treaties and Conventions, and the legislative power intervenes to authorize their ratification only in exceptional circumstance. This because the King (chief of Executive power) is invested with their ratification, and the National Assembly is entitled to approve them only when the Treaties or Conventions involve financial commitments to the Public Treasury, or if they could produce negative affects to the public or private rights of the Jordanians as mentioned in Articles 5-23 of the Constitution. Consequently, according to the modality adopted in Article 33 of the Constitution, the supremacy recognized for the rules of international treaty law is reflected by their respect since they can produce their direct effects over the rules of domestic law, sanctioned by the courts of the judicial order. In this regard, it is important to mention that the Jordanian Constitution does not define the scope of the international norms vis-à-vis the domestic law. In addition, the Constitution contains no provisions regarding the superiority of international treaty law over the domestic laws. One can argue that this silence approach can be interpreted as a desire of the legislator not to grant Treaties or Conventions a force greater or even equal to that of the national law. However, in Jordan the supremacy of international treaty law over domestic laws (not over the Constitution) was established by the jurisprudence of the ordinary courts, forcing the judges to bow without hesitation. It should also be stressed that the Civil Code of 1976 enshrines the supremacy of the international treaty law. Article 24 provides that “the provisions of the foregoing Articles shall not apply in cases where there is a contrary provision in a special law or in an international Convention in force in Jordan”. For the most part, and according to Article 33 of the Constitution, the constitutional court’s review of the compliance of the international treaty law with the Constitution remains an open question, especially for categories of international treaty law that do not require an approval from the parliamentary. In addition, the constitutional jurisprudence and doctrine do not provide yet any answer. However, following the silence of the Constitution, it can be noted that the Jordanian Constitutional Court is far from carrying out the ex-post control of the national law for being in harmony with the international treaty law (so called contrôle de conventionnalité ) and it was fell to the ordinary courts. Equally, if not more important, the Constitutional Court will refuse to carry out the ex-post control of the compliance of the law with international customs, nor with the general principles of international law, since Article 59 of the Constitution confines the control of the constitutionality only to the laws and regulations in force. Consequently, the Jordanian Court of Cassation accepted to ensure le contrôle de conventionnalité to verify whether a law is compatible with an international treaty law, thus the ordinary courts are authorized to exclude the application of a law contrary to an international commitment. 2.3 The constitutionality of foreign law The conflict of laws was initially seen as a conflict of sovereignty. Each state being sovereign in determining the applicable law according to the principle of territoriality enshrined by the jurisprudence of the International Court of Justice in the famous case Lotus of 7 September 1927. 41

444

41 MAYER, Pierre et Vincent HEUZÉ, Droit international privé , 11 e Edition, LGDJ (2014) 32.