The Application of International Law by German Courts

According to its classical concept, international law is conceived as a system of rights and obligations of states, whereas the individual is not a subject of international law. However, over the past decades international law has faced a paradigm shift: individuals are being granted more and more rights under international law. This is particularly true due to the growing influence of international human rights law. In Europe, the binding judgments of the European Court of Human Rights concern almost all areas of a citizen’s personal life. This leads to the question of to what extent the national legal system allows for international law to be claimed by individuals in domestic courts. Traditionally, the German legal system follows the dualistic theory of the relationship between international and national law, which emphasizes a strict differentiation between both legal orders. This means that international law has to be translated into German law. After such implementation, international law applies at the level of German statuary law. This has led to a difficult conflict of international law and the supremacy of the German constitution. Over the last few years, the Federal Constitutional Court has solved the conflict. Following the constitutional principle of openness towards international law, the Federal Constitutional Court came to the conclusion that German state organs are obliged to take European Convention on Human Rights and its subsequent judgments into account when interpreting the German Basic Law. As such, a private individual may rely on such norms if they are directly applicable and supply him with subjective rights.

About the authors: Caroline von Gall – Professor, Institute of Eastern European and Comparative Law, University of Cologne, Cologne, Germany; Lisa Kujus – Research Associate, Institute of Eastern European and Comparative Law, University of Cologne, Cologne, Germany.

Citation: Von Gall C., Kujus L. (2017) Primenenie mezhdunarodnogo prava sudami Germanii [The application of international law by German courts]. Srav­nitel’noe konstitutsionnoe obozrenie, no.6, pp.78–86. (In Russian).

References

Von Arnauld A. (2016) Völkerrecht, 3rd ed., Heidelberg: C.F.Müller.

Dupuy P.-M. (2011) International Law and Domestic (Municipal) Law. In: Max Planck Encyclopedia of Public International Law. Available for subscribers at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1056 (accessed: 17.11.2017).

Riedel E., Söllner S. (2006) Studiengebühren im Lichte des UN-Sozialpakts. JuristenZeitung, no.6, pp.270–277.

Rumyantsev A. (2009) Grazhdanin protiv “bul'vara”: slozhnyy poisk kompromissov v konflikte mezhdu raznymi pravami cheloveka [The Citizen against “Boulevard”: complex search for compromises in the conflict between different human rights]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.167–169. (In Russian).

Sauer H. (2016) Staatsrecht III: Auswärtige Gewalt, Bezüge des Grundgesetzes zu Völker- und Europarecht, 4th ed., München: C.H.Beck.