Reichweite und Grenzen der völkerrechtskonformen Interpretation des Grundgesetzes

Abstract

This article deals with the constitutional limits of interpretations of the German Basic Law in the light of public international law. To this end, it first presents the jurisprudence of the Second Senate of the German Constitutional Court that has developed constitutional limits for the accommodation of public international law within the interpretation of the German Constitution. The central assumption here is, that openness to international law can only be effective within the framework of the democratic and constitutional system of the Basic Law. However, two recent decisions of the First Senate call this approach into question. The triage decision of the First Senate of 16 December 2021, and the climate decision of 24 March 2021, point to a more creative and less restrictive approach to the use of international law when interpret the German Basic law. Finally, it is argued that it is absolutely necessary to adhere to the constitutional limits established by the Second Senate, especially because of the danger of a possible autocratisation of international law. The openness of the Basic Law towards international law is not arbitrary, but in the words of the German Constitutional Court connected to “an international legal order that preserves freedom and peace”.