Judicial Review of International Agreements: Federal Republic of Germany

Abstract

In Great Britain and the USA it has been accepted since Blackstone that [customary] international law is part of the law of the land.1 Since the two world wars, other countries have adopted similar, even stronger, solutions: the Basic Law of the Federal Republic of Germany (BRD), for instance, following Art 4 of the Weimar Constitution of 1919, provides in Art 25 that the general rules of customary international law form part of the law of the land, taking precedence over statutes and immediately creating rights and duties for the inhabitants of the BRD. A similar provision is to be found in Art 9 of the Austrian and Art 10 of the Italian Constitution; the preamble of the French Constitution of 1946, to which the preamble of the Constitution of 1958 refers, states that the French Republic, in accordance with her tradition, observes the rules of international law. All these constitutional provisions aspire to establish harmony between the general rules of international law and municipal law.2 The same tendency may be found in the constitutions of several countries with regard to the relationship between municipal law and international law as embodied in agreements concluded between states. Here the paragon has been Art VI clause 2 of the U.S. Constitution which provides that all treaties made under the authority of the U.S. shall be the supreme law of the land. Treaties which are self executing-those intended to be effective without the need of implementation by legislation-override previously enacted congressional statutes, and state constitutions and laws whenever enacted, in case of conflict.3