Die Grenzen der Anwendung des Völkerrechts im Deutschen Recht (The Limits of Application of Public International Law in German Domestic Law)

Abstract

The relationship between German domestic law and public international law is often described as one of 'openness’ or 'friendliness towards international law.' The main gateway for international law into German domestic law is Article 25 of the Constitution which provides that the 'general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.’ The 'general rules of international law’ include the rules of customary international law, including jus cogens, and the general principles of law recognized by civilized nations. Customary international law, however, does not require that all States have expressly consented to these rules. Germany thus need not necessarily have recognized such a rule for it to become an integral part of federal law.

In recent years, rules of customary international law have increasingly been 'found’ by domestic, international and internationalized tribunals without due regard for the opinio juris and practice of States. There is thus a possibility of customary international law rules emerging in the future which may not necessarily be in line with German basic laws and values. For example, Holocaust denial could well be covered by customary international law rules on freedom of expression and 'Scientology’ could benefit from customary international law rules on freedom of religion. The paper therefore examines whether there exist any limitations to the application of general rules of international law in German domestic law. Limits are developed both from customary international law itself as well as from German constitutional law. In particular, the division of powers as well as the principle of the rule of law (the requirement that any act limiting individual freedoms must have a statutory basis and must be clear and foreseeable) and the principle of democracy preclude certain customary international law rules from becoming an integral part of federal law.

Note: Downloadable document is in German.

Keywords: relationship between domestic and international law, customary international law, rule of law, democracy