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One of the most difficult topics in a standard course on international law is the interaction between international law and domestic legal systems. When a state legally binds itself to a treaty on the international stage, how should its domestic courts respond? Should they apply the treaty immediately and vindicate the treaty rights of litigants? Should they ignore the treaty and wait for the legislature to implement its terms through regular domestic legislation? What happens if a newly ratified treaty conflicts with domestic law that was already on the books? Each state answers these questions differently. In the United States, the Supremacy Clause of the Constitution gives treaties full status of law, yet there nonetheless exists an elaborate body of treaty execution doctrine by which courts decide whether any given treaty should be directly applied by courts or ignored until the Congress passes a new law.

In Afghanistan, the answers to these questions are even less clear than in other countries – in no small measure because the Afghan constitution is so young that there simply has not been time for courts or other government institutions to interpret and elaborate on the relevant parts of the constitution. This presents both positives and negatives for my students who have been grappling with the material. On the one hand, there are no truly correct answers to the basic questions, which makes the subject difficult to study. On the other, there are no truly correct answers to the basic questions, which puts my students on the cutting edge of defining the meaning of their own constitution.

My students just completed their midterm exam last week. The major essay asked students imagine themselves as Supreme Court justices forced to decide a case where the terms of a treaty to which Afghanistan is a party conflicted with a source of domestic law. According to the constitution, how should they go about making a decision? Answers certainly varied, but certain themes emerged.

Many students proposed that Afghanistan adopt a “last-in-time” rule, which is followed by many other countries in the world. Just as a more recently passed law trumps and amends older laws on the books, a more recent treaty should trump older domestic laws. Recent domestic laws should trump older treaties. Students who favored this approach noted that under the Afghan constitution, both laws and (apparently) treaties are approved in the same manner: majority vote in both houses of the legislature and approval by the President. Moreover, Article 94 of the constitution defines law as “what both houses of the National Assembly approve and the President endorses …  .” Treaties and domestic legislation therefore have equal status as “law” and should be treated the same.

Others in the class suggested that treaties should trump domestic legislation – even old treaties. These students pointed to Article 7 of the Constitution which states that “ the state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights.” The preamble to the constitution also says as much. If Afghanistan is constitutionally obligated to “observe” treaties, then later domestic legislation that conflicts with it is void. Many last-in-timers retorted that Article 7 and the preamble should not be considered judicially enforceable. Although we teach in English at the American University, the class had an extensive conversation over the meaning of “ to observe” or “ رعایت می کند ” with some proposing that it is best understood as “consider,” and therefore only binding on the conscience of leaders, whereas other s insist it requires adherence. I am afraid I have no idea which is correct.

A couple of students proposed yet a third rule, which has its roots in canons of statutory interpretation rather than the text of the constitution: the more specific treaty or domestic law should prevail. One example raised by a student: if there is a clean air law in Afghanistan (stay with me here…) that regulates allowable emissions down to precise measurements per year, and Afghanistan later signs a treaty in which it agrees to “endeavor to eliminate harmful pollutants” then a court should consider the prior law binding because it is specific and judicially manageable whereas the later treaty is just too general to apply to specific cases.

Despite the general disagreement over how treaties interact with statutes, there was substantial agreement that one type of domestic law will trump treaties: Islamic law. The class was divided over whether it should defeat treaties, but most agreed that it would in practice. Article 3 of the constitution is very clear: “[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.” Because treaties appear to be “law” under Article 94, they are immediately void if they contradict Islam.

Still, some students could imagine some exceptions. The same students who favored the more specific treaties and statutes over more general treaties and statutes thought that the same standard could apply to Islamic law. There are some tenets of Islamic law that are not particularly precise and are still debated and open to varied interpretation by Islamic scholars. Perhaps treaties should be given the benefit of the doubt if the alleged conflicting rule of Islamic law is vague. Other rules of Islamic law do not come from the Qur’an but rather from sayings of the Prophet. There is an entire Islamic science dedicated to ascertaining the authenticity of sayings – some are unanimously agreed to come from Mohammad, whereas others have weaker chains of transmission. Perhaps, some students suggested, rules based on weakly supported sayings have less weight under Article 3.

The cleverest argument I encountered was that Article 3, as powerful as it is, is strictly limited to “law” which, as we saw before, is defined under Article 94 as that which is approved by the legislature and endorsed by the President. Therefore, when Article 7 says that Afghanistan must adhere to the UN Charter and the UDHR (which is not even a binding treaty), these two documents are not “law” because they are part of Article 7, and therefore not actually approved by both houses. Rather, Article 7 was approved by the Loya Jirga.

As much as I encouraged my students to grapple with legal arguments about the text of the constitution, one student in particular reminded me of the political realities of constitutional interpretation. In true realist fashion, he acknowledged that there were textual and other legal reasons to support arguments for and against different ways of applying international law in Afghanistan. But he said the truth was that if he were a judge, there was no way he could let purely legal considerations dictate the outcome of cases. Some laws, particularly those derived from Islam, are too sacrosanct and politically untouchable – he would have to uphold them over international law in order to remain a member of society in good standing. Similarly, there might be international obligations which the nation is under pressure from western donor states to uphold – he would uphold them to ensure his country continued to receive the support it needed. The relative social and political importance of each law would be paramount. Textual and legal analysis was secondary. This is something judges do everywhere, of course, although they find ways to cloak their decisions in legal terms of art (or create doctrines of abstention or political question). Some might even prefer judicial honesty of this sort in developed legal systems. Regardless, the essay served as a reminder that constitutional interpretation is not an abstract exercise in logic and semantics, but is inextricably bound with contingent social and political realities, particularly in the land of the brave.

-Taylor