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Lovric, Daniel --- "A Constitution Friendly to International Law: Germany and its Volkerrechtsfreundlichkeit" [2006] AUYrBkIntLaw 4; (2006) 25 Australian Year Book of International Law 75

A Constitution Friendly to International Law: Germany and its Völkerrechtsfreundlichkeit

Daniel Lovric[∗]

I. Introduction

Some argue that Australia has ‘deep anxieties’ about international law.[1] In particular, many Australian lawyers think that the influence of international law on Australian law should be limited; this line of thinking has led to the Australian legal system moving more and more towards the dualistic model. According to this model, international law and domestic law are separate systems, and therefore, international law cannot flow into domestic law directly.

This tendency towards dualism is not a necessary feature of a modern legal system. Other countries have not adopted the dualist model. Even clearly dualist legal systems, such as that of the United Kingdom, can be friendlier towards the reception of international law. Other common law systems, in particular that of the United States, are even friendlier towards international law. Many civil law systems tend toward the monist model (which views international and domestic law as unified). These legal systems function without serious problems. They operate in modern, open and effective democracies embracing the rule of law. Their acceptance of international law has not compromised the foundations of their legal system.

This article examines one modern legal system, that of the Federal Republic of Germany, which has accepted the influence of international law. This paper aims to show how this acceptance can strengthen a legal system rather than weaken it.

The article examines the constitutional foundation of Germany’s acceptance of international law. A basic principle of German constitutional law is Völkerrechtsfreundlichkeit (friendliness towards international law). In accordance with this principle, international law can have effect in the domestic legal system of Germany. In particular, the ‘general rules of public international law’ have direct domestic effect, and can override statutes. A treaty, once approved by the parliament, can also have effect in domestic law. As a result, Germany arguably tends towards the monist model (although it would be misleading to describe it as purely monist in nature).

It is useful to clarify a number of things that this paper will not do.

First, I am not suggesting that Australia should adopt German constitutional principles relating to international law. Bare transplants of legal principles often fail in their new environment, regardless of how well those principles operate in their original system. German principles of constitutional law are particularly adapted to German legal culture and history. It is quite unclear as to how they would be useful in the Australian context.

Nevertheless, examining unfamiliar principles can often shed useful light on a familiar system. Australian lawyers need to look at the assumptions of their legal system in a critical light. It is often difficult to identify those assumptions, let alone criticise them, from a purely Australian perspective. A comparative legal perspective can overcome this difficulty. For example, Australian assumptions about how international rules could be applied by domestic courts can usefully be challenged by the experience of other legal systems. Examining the German experience is likely to raise such useful challenges.[2]

Second, I am not suggesting that tending towards a monist system is better than tending towards a dualist system. I am simply suggesting that tending towards a dualist system is not necessary in a functioning and democratic legal system.

Third, I am not suggesting that international law, because it is international, is necessarily good law. Much international law is flawed or unfair. Certainly, the process of creating international law, particularly treaties, is opaque and has a questionable democratic basis. The international legal agenda is not neutral, and in some cases has been captured by special interests. By contrast, many domestic systems, such as those in Australia and Germany, are far more open and democratic.

But domestic legal systems are not perfect, and international law has something to offer them. At its best, international law can cure deficiencies in domestic legal systems by giving a voice to disadvantaged players. International human rights and trade law are classic examples of this aspect of international law. At its best, international human rights law provides a forum for disadvantaged groups to express their point of view: a forum that would otherwise be non-existent. At its best, international trade law provides a forum for disadvantaged economic interests to advocate their point of view. For example, the law of the World Trade Organization is (partly) based on the idea that export interests are disadvantaged in relation to protectionist interests in domestic debates. It therefore creates a domestic forum for export interests to plead their case. This is not to suggest that international human rights and trade law are perfect in their content or processes. At the very least, however, they have something to offer domestic legal systems.

The article first describes the basic features of the German constitutional system and its relationship to international law (Part II). Second, it considers ways in which that system filters out the influence of international law, without rejecting it wholesale (Part III). These filters are:

• the filter of interpreting domestic rules in conformity with international law

• the filter of identifying ‘general rules of public international law’

• the filter of direct applicability.

Third, the article describes the very recent and important case of Görgülü, and its implications for the relationship between international and domestic law in Germany (Part IV).

II. The German Constitutional System and International Law

(a) General features of the German constitutional system[3]

Germany is a federal system, with a written federal constitution (Grundgesetz or Basic Law) . Each regional unit in the federation, known as a Land (and in the plural as Länder) has its own constitution, subject to the Basic Law. There is a supreme constitutional court, known as the Bundesverfassungsgericht (Federal Constitutional Court).[4]

The German court system is divided into five separate divisions: civil law/criminal law, administrative law, finance law, labour law and social security law. There are specialised courts that deal with each of these five divisions. Above all of these courts stands the Federal Constitutional Court, which deals exclusively with constitutional issues. Unlike the traditional Anglo-Saxon model, the supreme constitutional court of Germany does not hear appeals of law as such: it only considers matters of constitutional law. This model of constitutional review is based on a system originally introduced in Austria in the 1920s.[5] Cases come to the Federal Constitutional Court through:

• referrals by other courts;[6] and

• original jurisdiction to hear complaints by government and public bodies;[7] and

• original jurisdiction to hear complaints by private persons about violations of their rights.[8]

The Federal Constitutional Court may declare federal or state statutes invalid on the ground of unconstitutionality.

There is no common law as such in Germany (although there may be a residual application of German customary law).[9] Instead, the statute book provides the basis for dealing with legal issues. Major codifications include the Civil Code (Bürgerliches Gesetzbuch or BGB), the Commercial Code (Handelsgesetzbuch or HGB) and the Criminal Code (Strafgesetzbuch or StGB). This focus on codification has prompted the production of detailed Commentaries on important statutes. The Commentaries often give a comprehensive synthesis of history, theory and practice on every provision in a particular statute. They are impressive legal institutions, with no direct equivalent in the common-law world. This paper draws heavily from several Commentaries on the Basic Law.[10] Nevertheless, the case law of the Federal Constitutional Court remains the basis of constitutional interpretation.[11]

The Basic Law, like all constitutions, has its features heavily marked by national history. This includes the features of the Basic Law relating to international law. For example, article 25 of the Basic Law incorporates the ‘general rules of public international law’ into federal law (this is discussed in more detail below). This article was added to the predecessor to the Basic Law (the Weimar Republic Constitution) as a result of Allied claims that Germany had not complied with international humanitarian law during the First World War.[12]

One of the most visible influences on the Basic Law is the experience of the Nazi regime in Germany. The German legal regime was systematically ‘perverted’ during the period 1933 to 1945.[13] The Nazi regime itself was created through apparently legal means, in particular, through a 1933 ‘law’ that allowed Hitler to issue decrees overriding the Constitution.[14] Many lawyers of the day served Nazi goals by developing a peculiar legal analysis and philosophy. This included a philosophy of international law.[15]

It is sometimes said that we learn more from our worst mistakes than from our greatest successes. This is probably true of German constitutionalism as well. The Nazi legal system, and the Weimar Constitution that permitted it to develop, are clear negative models for German constitutional law. As a result, German constitutional lawyers are extremely cautious of rules that give unchecked power to the state.

Basic human rights have pride of place in the Basic Law, with the first sentence of article 1 providing that ‘Human dignity shall be inviolable’. A long list of legally enforceable Basic Rights follows. These rights cannot be removed by constitutional amendment.[16] There is a sophisticated jurisprudence supporting the application of these rights.[17]

The Basic Law also entrenches the principles of democracy, federalism, the rule of law, and of the social nature of the state. The concept of Rechtsstaat (‘law state’), roughly corresponding to the concept of rule of law, is particularly well developed.[18] There is a formal division of powers between executive, legislature and judiciary. These features of the Basic Law cannot be amended.[19] There are also special provisions designed to protect the constitutional order.

The features of the Basic Law relating to international law are also aimed at avoiding an over-authoritarian state. Article 25 of the Basic Law provides that the ‘general rules of public international law’ are part of federal law. The wording of article 25 of the Basic Law was strengthened (in comparison to its predecessor in the Weimar Republic Constitution) so as to promote Germany’s re-acceptance into the international community following the Second World War.[20] Article 59 II of the Basic Law gives the parliament a veto over the ratification of important treaties, that is, treaties that require legislative implementation or that relate to the fundamental status of the state in the international community. Article 59 II of the Basic Law was included to prevent important treaties being concluded and implemented by the executive without the consent of the parliament, as was done under the Nazi regime.[21] The Preamble to the Basic Law refers to the German people’s ‘determination to promote world peace as an equal partner in a united Europe’. Accordingly, article 26 of the Basic Law states that preparing for a war of aggression is unconstitutional and subject to criminal prosecution. More generally, article 24 of the Basic Law allows Germany to transfer sovereign powers to international organisations, to join systems of mutual collective security and to enter agreements providing for general, comprehensive and compulsory international arbitration.

More recent developments in international relations have also left their mark on the Basic Law. The growth of the European Union (EU) has been most influential in this regard, and has resulted in several changes to the Basic Law. For example, an early decision of the Federal Constitutional Court[22] held that the democratic principles of the Basic Law prevented granting foreigners the right to vote in local government elections. Following development of EU law in this area, it became necessary to grant foreigners such rights. Accordingly, article 28 I of the Basic Law was amended to permit this to happen.[23] More generally, a new article was added to the Basic Law (art 23) to permit and regulate Germany’s participation in the EU, as a result of the changes brought in by the Maastricht Treaty[24] (it was thought that the transfer of sovereign powers under article 24 of the Basic Law was an inadequate way of dealing with such matters).[25] There is currently a lively debate underway concerning how to reform article 23 of the Basic Law in the light of further constitutional developments in the EU.[26]

In 2000, the Basic Law was amended to allow Germany’s further participation in two particular international regimes. Most notably, the Basic Rights in the Basic Law were altered to allow Germany to participate in the International Criminal Court. Previously, article 16 II of the Basic Law had prevented the extradition of any German citizen, and there were some doubts as to whether this would allow the transfer of German citizens to the Court.[27] Accordingly, article 16 II of the Basic Law was altered to allow extradition to an international court or to a member state of the EU, provided that this was done according to law and that the principles of the rules of law were preserved.[28] Even more recently, the Basic Law was amended to allow Germany to comply better with the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW).[29] Article 12a IV 2 of the Basic Law previously prevented women from rendering military service involving the use of arms, and as a result, Germany had lodged a reservation to article 11 of CEDAW. In 2001, the Basic Law was amended to prevent women from being compelled to render military service involving the use of arms. Germany then withdrew the reservation.[30]

(b) The ‘friendliness’ of the Grundgesetz towards international law

It has often been suggested that Germany has a monist system of law; that is, it views international law and domestic law as parts of a united system. This suggestion is misleading. German constitutional scholars consider that the provisions of the Basic Law neither confirm nor deny the proposition that Germany has a monist system,[31] although it has obvious features tending towards monism. Nevertheless, the Federal Constitutional Court has shown some tendencies towards the dualist model.[32]

Whether or not Germany is monist or dualist, it is clear that the Basic Law is friendly towards international law. The Federal Constitutional Court itself has referred to a principle of Völkerrechtsfreundlichkeit,[33] or friendliness to international law.[34] It has held that the Basic Law ‘presumes the integration of the State it creates into the international legal order of the community of States’.[35] An important consequence of Völkerrechtsfreundlichkeit is the principle that statutes[36] and the Basic Law itself[37] are to be interpreted as consistently as possible with international law (völkerrechtsfreundliche Auslegung). (Interestingly, this principle has recently attracted some criticism in Australia.) [38] Additionally, the German courts are bound to pay respect to foreign legal systems and norms.[39]

The Völkerrechtsfreundlichkeit principle is derived from numerous provisions in the Basic Law dealing with international law. For example, article 25 provides for the application of ‘general rules of public international law’ as federal German law. Article 25 also provides that such rules override ordinary federal statutes. Since federal law prevails over state law, the ‘general rules of public international law’ also prevail over state statutes.[40] Any doubts as to the existence or content of international law rules are to be resolved by the Federal Constitutional Court under article 100 II of the Basic Law. Individuals have standing in most cases to request the Federal Constitutional Court to consider cases involving international law, if they can claim that their basic rights have been infringed.[41] Other provisions of the Basic Law also provide some support for Völkerrechtsfreundlichkeit.

This Freundlichkeit is a little bewildering to Australian lawyers accustomed to a much greater distance from international law rules. Australian lawyers might ask how a domestic legal system can function when domestic statutes are subject to ‘general rules of public international law’. Does this not compromise the predictability of the operation of statutes? Why does the German legal system not simply collapse under the weight of tons of treaty text and opinio juris?

The answer is that a legal system can function quite effectively if it allows access to international law, provided that it does so with some degree of control. German constitutional law encourages the mutual interaction of international and domestic rules. But Völkerrechtsfreundlichkeit does not mean an uncritical acceptance of international law rules. German lawyers have exercised Völkerrechtsfreundlichkeit with a sharp eye to the practicality of applying international law in a domestic context. They use a cluster of rules and techniques to temper the influence of international law, when necessary. These techniques will be described in Part III.

The main difference between Australia and Germany seems to be who exercises control over the inflow of international law. In Australia, with its strongly dualist legal framework, this control is primarily exercised by the parliament, with the courts playing a secondary (but nevertheless important) role in using international law as an interpretive tool. In Germany, by contrast, far more of this control is exercised by the courts, particularly by the Federal Constitutional Court. They do so by employing the techniques described in Part III.

Before analysing these techniques, however, it is helpful to describe in more detail the articles of the Basic Law that deal with “general rules of public international law” (article 25) and treaties (article 59 II).

(c) The ‘general rules of public international law’: article 25 of the Basic Law

Article 25 of the Basic Law provides as follows:

The general rules of public international law are an integral part of federal law. They take precedence over statutes, and directly create rights and duties for the inhabitants of the federal territory.[42]

What are the ‘general rules of public international law’? The Federal Constitutional Court has defined them as ‘the universally applicable rules of customary international law as well as the general principles of law’.[43]

But not every rule of customary international law is a ‘general rule of public international law’. Such rules must be general rules to qualify under article 25 of the Basic Law. This does not mean that they must be of general application, in the sense of being principles applicable to the entirety of international law. Rather, it means that they must be accepted by the generality of the subjects of international law,[44] that is, states. Germany’s express consent to such rules is not necessary under article 25 of the Basic Law.[45] Regional rules of customary international law are not ‘general rules of public international law’.[46]

An example of the operation of article 25 of the Basic Law can be seen in the Iranian Embassy Case.[47] Here, a German firm repaired the heating in the Iranian Embassy building in Cologne, and claimed payment in a local court. The court referred the issue to the Federal Constitutional Court, to decide whether a ‘general rule of public international law’ prevented the claim being heard before a German court. The Federal Constitutional Court examined the decisions of German and other courts, the content of relevant treaties, and the writings of prominent commentators. It concluded that there was no ‘general rule of public international law’ that would rule out a claim against a foreign state in relation to its non-sovereign activities.[48]

Under article 25, the ‘general rules of public international law’ take precedence over federal statutes. In an early case, the Federal Constitutional Court held that such rules ‘without a transposing act, that is, directly, have entry to the German legal system and have primacy over German domestic law – not constitutional law’.[49] The ‘general rules of public international law’ also take precedence over state statutes. This is a direct result of article 31, which provides that federal law takes priority over state law.[50]

An interesting question is whether the ‘general rules of public international law’ can render a statute invalid. Generally, it seems that this is not the case. A statute that is inconsistent with the ‘general rules of public international law’ is merely inoperative to the extent of the inconsistency.[51] However, where the inconsistency concerns jus cogens human rights standards, the statute may, in theory, be invalid.[52] Of course, such a hypothetical statute would almost certainly be invalid as a result of inconsistency with the Basic Rights set out in the Basic Law.

The supremacy of ‘general rules of public international law’ over ordinary statutes is an astonishing proposition for an Australian lawyer. However, as we will see, this proposition does not have astonishing results in practice.

(d) Treaties: article 59 II of the Basic Law

The general rule for applying treaties in Germany is set out in article 59 II of the Basic Law.[53] The article reads as follows:

Treaties that regulate the political relations of the federation or relate to federal legislative competences require the consent or participation, in the form of a federal statute, of the bodies responsible in each particular case for the enactment of federal legislation. For Executive Agreements, the provisions [in the Basic Law] about federal administration apply in a corresponding way.[54]

Treaties are concluded by the executive branch of government.[55] The more important treaties (state treaties or Staatsverträge) require parliamentary assent under the first sentence of article 59 II of the Basic Law,[56] while less important treaties (‘Executive Agreements’ or Verwaltungsabkommen) only need parliamentary approval where the constitutional interests of the German states are concerned.[57] Parliamentary assent to state treaties is given by way of a Treaty Consent Statute (Vertragsgesetz, also known as Zustimmungsgesetz).

The details of the ratification and parliamentary approval process need not concern us here.[58] What is more relevant is the way in which the rules in treaties take effect in German domestic law.

The text of article 59 II does not expressly say whether treaty text has direct effect in German law. On one interpretation of the article, one might argue that treaty rules cannot apply in domestic law without a statute expressly providing for such application. But this interpretation has been rejected. Article 59 II has been interpreted so as to apply treaty rules in domestic law (provided that a Treaty Consent Statute has been passed in relation to a state treaty). Put another way, if the Treaty Consent Statute is silent as to the domestic effect of the treaty rules, such rules will nevertheless have effect in domestic law. The extent of that effect is determined according to the concept of ‘direct applicability’, which is discussed in Part III(a) of this paper.

The theoretical basis for applying treaty rules as domestic law in Germany is controversial. There are three main theories.

The first theory is based on the concept of transformation, that is, a Treaty Consent Statute transforms the treaty rule into a domestic statutory rule. (For Executive Agreements, an analogous transformation takes place via the actions of the executive in issuing regulations or administrative guidelines.)[59]

The second theory is based on the concept of incorporation, that is, a Treaty Consent Statute (or equivalent executive act in the case of an Executive Agreement) allows the treaty rules as international rules to have force domestically.

This theory might have practical results that are different from the transformation theory. For example, under the incorporation theory it is clear that the treaty rules are to be interpreted in accordance with the international law of treaty interpretation. This result is not so clear under the transformation theory.

The third theory is based on the concept of implementation command (Vollzugsbefehl or Rechtsanwendungsbefehl). This theory avoids distinguishing between incorporation and transformation, and simply views the passing of the Treaty Consent Statute as a command by the parliament to implement the treaty.

All three theories are compatible with the wording of the Basic Law, and there is no prevailing opinion in favour of any particular theory.[60] The concept of Rechtsanwendungsbefehl has been used by the Federal Constitutional Court in recent cases.[61] However, in a recent case the Federal Constitutional Court seemed to use the concepts of transformation and Rechtsanwendungsbefehl simultaneously. In relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),[62] it said that the parliament had ‘transformed the Convention into German law and made a corresponding Rechtsanwendungsbefehl’.[63] The theoretical basis for applying treaty rules as domestic law in Germany remains open for discussion.

Once a state treaty rule is transformed, incorporated or otherwise made into domestic law, it has the rank of a federal statute (or, in the case of an Executive Agreement, the rank of the approval instrument issued by the executive). Therefore, unlike the ‘general rules of public international law’, it will not rank above other federal statutes; rather, it will rank equally with such statutes. But it will rank above state statutes according to the general federal superiority rule (Bundesrecht bricht Landesrecht) in article 31 of the Basic Law.

It is clear, however, that the legislature is free to enact rules that are inconsistent with a statute. In an early case, the Federal Constitutional Court commented as follows:

the [Basic Law] does not go so far in its support for international law as to secure compliance with existing international treaties, by binding the legislator to law corresponding with them. ... Particular treaty agreements, even where they lay down objective law, do not enjoy this constitutional position. The legislator accordingly has power of disposition over the stock of laws even where a treaty commitment exists, insofar as it does not have as its general object general rules of public international law.[64]

Therefore, as in Australia, the Bundestag is constitutionally able to enact legislation that conflicts with treaties.

The German treatment of treaty rules illustrates the practical aspects of Völkerrechtsfreundlichkeit. One can see this in the German approach to treaties declaring rules of customary international law. On one view, such a treaty could apply directly with a ranking above federal statutes, under article 25 of the Basic Law. However, this result would undermine the democratic process set out in article 59 II of the Basic Law. Thus, German lawyers have worked out a practical and logical solution to the issue: the treaty as such merely has the status of a statute, while the relevant ‘general rules of public international law’ as such rank above statutes. Therefore, the treaty wording as such will not override other statutes. But its wording, to the extent that it reflects the ‘general rules of public international law’, may have that effect in practice. This is a solution to a practical problem that is also tidy from a theoretical perspective.

However, theoretical difficulties do not deter German lawyers from finding practical solutions to legal problems. This can be seen in the case of a treaty (approved by parliament) that modifies a ‘general rule of international law’. From a purely theoretical perspective, one might expect that the modification will not have effect in domestic law, because the ‘general rules of public international law’ will override the statutory status of the rules in the treaty. But this is not the case. German lawyers view the ‘general rules of public international law’ as having been limited by the treaty. According to the Federal Constitutional Court:

Under Art.25 of the [Basic Law], general rules of international law only become an integral part of Federal law as to their specific content and their particular reach.[65] Art.25 of the [Basic Law] affords them access to the German legal system only to the extent of their validity under international law,[66] a status that may also be determined by reference to the degree to which they have been superseded by the treaty rules of individual states. Art.25 of the [Basic Law] does not prevent treaty arrangements, permissible under international law but not in full harmony with general rules of international law, from acquiring the force of national German law through legislation.

Customary international law is in all respects jus dispositivum, i.e., its rules apply in the absence of an agreement to the contrary. There is no known doctrine of general international law that would assign general customary rules of international law absolute priority over treaty arrangements. To the extent that it affects the parties to a treaty, international treaty law as a rule takes precedence over customary international law as lex posterior and lex specialis.[67]

Thus, a treaty rule approved through parliamentary process will override the ‘general rules of public international law’. This does not fit neatly with the wording of the Basic Law; but it does accord with common sense. There is little advantage, and a substantial democratic deficit, in confining parliament’s powers strictly to those allowed under customary international law. As such, German practice here can be seen as an example of a practical approach to international law in an environment of Völkerrechtsfreundlichkeit.

Treaty rules may apply with the rank of a federal statute (or other rank in the case of an Executive Agreement), but they are often vague, and hard to apply (in comparison with the relative clarity of domestic statutes). Again with a practical perspective, German courts will only apply such rules against individuals if the rules are clear enough to be ‘directly applicable’ in German law. A treaty rule that lacks this degree of clarity will only have limited application in German domestic law, for example, in binding government organs. The principle of ‘direct applicability’ is complex, and is discussed in more detail in the next part of this paper.

III. Limiting International Law’s Applicability in a System Tending Towards Monism:
Three Filters Applied Under German Constitutional Law

The principle of Völkerrechtsfreundlichkeit, and its major foundations in article 25 of the Basic Law (application of ‘general rules of public international law’ superior to statutes) and article 57 II of the Basic Law (application of treaty rules as law) suggest a major influence of international law in German domestic law. To some extent, this suggestion is correct. But, as mentioned earlier, German lawyers do not accept international law uncritically, and have developed ways in which it can be applied domestically in a practical way.

As noted above, German lawyers apply three kinds of filter to the international law streaming into their domestic system. These are:

• the filter of interpreting domestic rules in conformity with international law

• the filter of identifying ‘general rules of public international law’

• the filter of direct applicability.

This part will examine in some detail the ways in which these filters operate. In general, we will see that they combine with German’s Völkerrechtsfreundlichkeit to produce concrete results that are not too different from those produced by Australia’s highly dualist system.

(a) The filter of interpreting domestic rules in conformity with international law

Many developed legal systems include a principle that domestic statutory rules should be interpreted in conformity with rules of international law. It has been argued that such a principle is itself a rule of customary international law.[68] Of course, the principle only creates a presumption, which can be rebutted by the content of particular domestic laws.

For dualist-tending systems like Australia, this principle of interpretation is one of the only ways in which international law flows directly into domestic legal processes. It serves the useful function of minimising possible international tensions arising from conflicts between domestic law on the one hand, and international customary law and treaties on the other hand. Interestingly, it has come under some judicial attack in Australia in recent times.[69]

Just as in Australia, this principle of interpretation plays the role of tension-minimiser in Germany.[70] However, in Germany the principle plays an extra role, namely, that of filtering the direct flow of international law out of domestic legal disputes. Some explanation is needed here.

Imagine that a complainant before the Federal Constitutional Court wants to overcome the wording of a federal statute. She therefore produces evidence of a ‘general rule of public international law’ that will aid her case. On one view, the Federal Constitutional Court could simply apply article 25 of the Basic Law to override the federal statute. But this would create unnecessary political tension. A court overriding the words of a statute, passed by a democratically elected parliament, is bound to attract criticism. One could consider this in the context of the following statement of the Federal Administrative Court (Bundesverwaltungsgericht):

[A] recourse to the European Convention on Human Rights is unnecessary if the municipal law provides sufficient safeguards …[71]

So, the court may take another tack. Instead of overriding the statute, it could interpret it in accordance with the ‘general rule of public international law’. If the wording of the statute is sufficiently ambiguous (which is so in many cases), a völkerrechtsfreundliche-interpretation can be applied. In doing so, the full force of international law under article 25 of the Basic Law has been filtered, so as to become a mere interpretive tool.

One might argue that this is mere wordplay, and that völkerrechtsfreundliche-interpretation is the same as overriding a statute. But the distinction between the two concepts is important. A recognised judicial function is to settle disputes in accordance with the law, while at the same time minimising potential social conflicts. Courts often do this via the method of interpretation. In a system tending to monism, it is important not to allow international law to ride roughshod over democratically elected parliaments. The German parliament is free to pass statutes that directly contradict international law: although if it does so, any ‘general rule of public international law’ will prevail. But if the German parliament passes statutes that are unclear in relation to international law, it is a legitimate judicial assumption that the parliament intended any ambiguity to be resolved in a völkerrechtsfreundliche manner.

The process of interpretation in relation to treaty rules has an extra dimension. As mentioned earlier, if a Treaty Consent Statute is passed to allow a treaty to be ratified, the rules in the treaty will have the status of a federal statute. Problems may arise if those treaty rules are inconsistent with rules in an (actual) federal statute. Here, both sets of rules will have the same constitutional rank, and any conflict between them will need to be resolved by an interpretive process. In Germany, two interpretive principles have special significance here: namely, the principles of ‘later in time prevails’ and ‘special prevails over general’.[72] These principles give courts considerable room to move in determining the extent to which treaty rules are to apply domestically. The federal statute may override the treaty rules, if the Treaty Consent Statute predates the other statute (‘later in time prevails’), or even if it postdates the other statute but contains general rather than specific rules (‘special prevails over general’). Of course, these principles can also be applied to give the treaty rules priority. But the point here is that the domestic legal system determines this priority; not by any automatic rule of international law. Thus, German lawyers retain a degree of control over treaty rules flowing into their system.

(b) The filter of identifying ‘general rules of public international law’

The rules of customary international law, when they exist unchallenged, tend to be uncontroversial. This is because such rules can only be proven by evidence of custom generally accepted as law by the relevant international community of states. In other words, if there are diverging national views as to how to deal with certain legal problems, there is no customary international law as to those problems. Not surprisingly, given the multitude of states in the international community and their very different perspectives on how to deal with issues, there are not many contentious issues governed by clear customary international law. But where customary international law can solve a problem, the solution is very likely to be uncontroversial.

Of course, many claimed rules of customary international law are very controversial. The whole process of proving a rule of customary international law is permeated by struggle and disagreement. If the level of controversy is high, the chances of proving a rule of customary international law drop dramatically. It is through this process of struggle and disagreement that controversial rules are filtered out of the customary international legal system. This limits the scope of rules of customary international law. But it also means that where such rules exist, they are unlikely to give offence to a particular state.[73]

Similar considerations apply in relation to the ‘general rules of public international law’ covered by article 25 of the Basic Law. On the one hand, where a litigant in Germany argues that a statutory rule should not apply because the relevant community of states has agreed to a contrary ‘general rule of international law’, the litigant will succeed. Here, the success of the claim is likely to be uncontroversial: as those states have managed to put aside their differences and agree on the rule concerned. On the other hand, if a litigant claims that the ‘general rule of international law’ exists, and applying that rule would lead to a controversial result, chances are that the litigant does not have very clear evidence of the existence of the rule. A community of states is unlikely clearly to agree to a binding customary rule with a controversial content. The Federal Constitutional Court would be unlikely to find that such a rule exists.

In this way, only the rules that satisfy the difficult requirements for the status of a ‘general rule of international law’ will flow into the German legal system under article 25 of the Basic Law. The Federal Constitutional Court has defined these requirements as follows:

The formation of rules of customary international law principally requires, firstly, a sufficient State practice, ie, a constant and consistent exercise [of the practice] through wide-ranging and representative participation. … Secondly, behind this practice there must be the opinio juris sive necessitatis, ie the understanding of acting within the framework of what international law requires and permits or what is necessary … For the establishment of customary international law, judicial decisions and the opinions of international law commentators will be called in as aids.[74]

Furthermore, the Federal Constitutional Court has expressly recognised its role of filtering out rules that are not clearly ‘general rules of public international law’:

The constitutional legislator [ie, the drafters of the Basic Law] accepted the hazards arising out of incorporation of the general rules of public international law into Federal law with precedence over the laws for the authority of the legislator and for legal security – both of them part of the foundation of the constitutional order – insofar as these hazards lie in the nature of things. … In the event of doubts as to the existence and scope of a general rule of public international law, only the [Federal Constitutional Court] is to decide, though with general validity and with force of law.[75]

The filter of clearly identifying such rules allows German lawyers to prevent propositions from entering their legal system that could cause problems when applied under local conditions.

The following list illustrates some of the asserted ‘general rules of public international law’ that have been rejected as such by the Federal Constitutional Court and other German courts. In all cases, the asserted rule would be rather controversial if applied in practice:

• a rule that domestic legal claims in relation to the real estate of a foreign mission are barred in all cases;[76]

• a rule that a person must not be extradited to another state in relation to an offence if the person has already been imprisoned for the same offence in a third state, and the state seeking extradition has not taken into account the imprisonment;[77]

• a rule that there can be no enforcement of a domestic judgment against a foreign state;[78]

• the Act of State doctrine as applied by United States courts;[79]

• the national treatment rule as expressed in article III of the General Agreement of Tariffs and Trade (GATT);[80]

• a rule that an occupied state is responsible to its inhabitants for damage caused by the occupation;[81]

• a rule that a state may not impose levies on foreigners for war-related burdens;[82] and

• a rule that a state must stop criminal proceedings if the accused was abducted (or even lured) into the jurisdiction from a foreign state by an agent provocateur.[83]

The Federal Constitutional Court did not reject these rules because they were necessarily bad rules, but rather because there was insufficient evidence that they were ‘general rules of public international law’. Such rules cannot be introduced into the domestic system by courts, because as rules they are too controversial politically. Courts do not have the democratic mandate to create such controversial rules; this should only be done by the democratically elected legislature.

Another feature of the ‘general rules of public international law’ also helps German lawyers to regulate international rules flowing into their system under article 25 of the Basic Law. This is the abstract nature of customary international law rules. The rules of customary international law tend to exist at a higher level of abstraction than the typical rules in a domestic legal system. States need to overcome major differences of opinion in creating customary international law to solve concrete problems. More often than not, they can only agree on solutions at a very abstract level.

This means that in Germany, the ‘general rules of public international law’ that flow into domestic law under article 25 of the Basic Law are also at a higher-than-usual level of abstraction. Such ‘rules’ are commonly like broad principles. Rather than dictating detailed solutions to day-to-day problems, they tend to provide broad guidelines for solving those problems. Local lawyers have considerable room to move within the limits of these ‘general rules of public international law’. They can therefore apply such rules in the way that best suits local conditions.

This level of abstraction can be seen in a list of some of the ‘general rules of public international law’ that have been accepted by the Federal Constitutional Court (the list is not intended to be comprehensive):

• the prohibition of the exercise of state sovereign powers (Hoheitsakte) on foreign territory;[84]

• the discretionary ability of a state to accept the activities of another state in its internal affairs;[85] and

• the enjoyment by foreign states of immunity from process in German courts in relation to sovereign acts, but not for acta iure gestionis (Commercial activities).[86]

All of these ‘rules’ are set at a very high level of abstraction. They allow considerable room to move within domestic law. For example, the prohibition of the exercise of state sovereign powers on foreign territory is not an absolute prohibition, but rather a guideline. It has not prevented the Strafgesetzbuch from giving German courts universal jurisdiction over certain serious crimes committed anywhere by anyone.[87] Nor has it prevented partial extra-territorial operation, for example, in setting criteria for German social security entitlements.[88]

The point is best brought out in the Iranian Embassy Case discussed earlier.[89] Here, the Court was dealing with a question of sovereign immunity. It applied the familiar distinction between sovereign and commercial acts (iure imperii and iure gestionis), which it held to be a ‘general rule of public international law’. This is a rule at a high level of abstraction. However, the Court also held that the detailed application of this rule was to be determined by domestic law. In particular, it held that the classification of a particular act under the broad rule was a question of domestic law,[90] and noted that it was not uncommon for a norm of international law to refer to rules of domestic law.[91]

Slightly different considerations apply to treaty rules brought in under article 59 II of the Basic Law. As noted earlier, such rules have effect in the domestic system only if a Treaty Consent Statute has been passed by parliament (at least in the case of important treaties). Such rules are often more controversial than customary international law, as they may be the result of accelerated negotiations, in many cases between only two governments. Treaty rules are not subject to the same filters of widespread consensus as is the case with customary international law. This means that treaty rules applied in the German legal system may have a more controversial content than the ‘general rules of public international law’.

However, much of this controversial content is dealt with in the process of passing a Treaty Consent Statute. This process has the role of giving some degree of domestic legitimacy to treaty rules. If parliament has approved a treaty, it has far more legitimacy than if it were merely agreed to by the executive. Therefore, a treaty rule with a highly specific content can be applied domestically without causing too many political headaches for the courts.

(c) The filter of direct applicability

Perhaps the most discriminating filter used by German lawyers to limit the inflow of international law is the concept of ‘direct applicability’ (unmittelbare Anwendbarkeit). According to this concept, a rule of international law will not create rights or duties for individuals unless, according to the terms of the rule, it is directly applicable to them.

A rule of international law is directly applicable if it is justiciable, that is to say, if it gives sufficient guidance to a judge to make a judicial decision.[92] This will be the case if, according to its content, purpose and setting[93] no further refinement of the rule is necessary for courts and public authorities to apply it to individual cases,[94] or perhaps more relevantly, for individuals to take advantage of it.[95] In the words of the Federal Constitutional Court:

When Art. 25 para.2, [and Art] 100 para.2 GG [Basic Law] speak of the general rules of public international law directly creating rights and duties for individuals, it is meant in those cases, in which a general rule of public international law itself directly sets out, according to its content and addressees, ie without a further normative act (for example, a domestic statute or regulation), subjective rights or duties of private individuals on the level of general public international law.[96]

This concept applies under both article 25 of the Basic Law[97] and article 59 II of the Basic Law, that is, if the rule in question is a ‘general rule of public international law’ or a treaty rule. In both cases, a rule of international law will only be applied in German domestic law to the extent that it is directly applicable.

Some German constitutional lawyers consider that direct applicability is a precondition for the domestic effect (innerstaatliche Geltung) of a rule of international law.[98] But others see the issue of direct applicability and domestic effect as separate questions.[99] For example, the latter group of lawyers sees all the ‘general rules of public international law’ as having domestic effect, but only to the extent that they are directly applicable. This raises the interesting question of what happens to a rule of international law that has domestic effect, but is not directly applicable. Such a rule is not ‘empty’ in its effect.[100] State organs may be obliged to take account of the rule: and to that extent, the rule may allow individual rights of action against the state. But the rule will not directly create rights (or duties) for individuals.[101]

The question of whether a rule of international law is directly applicable domestically or not is to be determined according to its content. An example given by one constitutional commentator relates to the customary international law rules of countermeasures. Customary international law allows, under certain conditions, a state to suspend its international obligations to another state, as a countermeasure for the other state breaching its own international obligations. The content of the rule simply allows one state to exercise the right of countermeasures, but does not fix the details of what the countermeasures should be. For example, Germany’s ability to create an economic embargo as a countermeasure would not automatically create the embargo in domestic law.[102] As the (property) rights of foreign residents of Germany would be affected, a further legal act would be needed – probably a statutory authorisation – because the declaration of the embargo in itself would not give sufficient certainty to a court to be able to implement it.

Some rules of international law are clearly directly applicable. An example is the body of detailed rules set out in bilateral tax treaties. To the extent that these rules are directly applicable, they are given direct effect in German law via a statutory provision that ranks them above other statutes.[103] (Interestingly, the same situation also exists in Australian law, although solely through the medium of a statute that expressly applies the terms of tax treaties.)[104] Another example of direct applicability is provided by certain rules of international human rights law, such as the right to life,[105] the prohibition of torture[106] and the right to property.[107]

Nevertheless, one needs to consider the concept of direct applicability in combination with other German legal concepts. In particular, these concepts concern the reserved powers of parliament and the addressee of laws. These concepts are discussed briefly below.

Under German constitutional law, certain things can only be done by law. This is known as the ‘reservation of law’ (Vorbehalt des Gesetzes). In addition, certain things subject to the reservation of law can only by done by primary statutes (as opposed to regulations, rules etc.) This is known as the ‘parliamentary reservation’ (Parlamentsvorbehalt).[108] In any case, a law must be sufficiently certain if it is to retain the character of law. These ideas are hardly surprising; they are natural consequences of the principles of the separation of powers and of the rule of law.

If a rule of international law flows into German domestic law, it will not be directly applicable if it is not sufficiently certain. In other words, it is not freed from the principle of ‘reservation of law’.[109] For example, if the German federal government declares an economic embargo against another state, this declaration is in itself not sufficient to affect the property rights in Germany of nationals of the other state. Limiting property rights is subject to the ‘reservation of law’. Thus, further domestic laws would be needed to implement the embargo.

The concept of direct applicability is also closely linked to the idea of the addressee of the rule in question. Some international rules are solely directed at the organs of state. Other international rules are directed at individuals. In German constitutional law, a rule of international law will generally only directly create rights and duties for its addressees. It would be wrong, however, to say that an international law rule that is not addressed to individuals could never have an effect on individuals. It is possible to interpret a rule that is apparently directed towards the state, so as to identify individuals as addressees. German lawyers call this the ‘change of addressee’ (Addressatenwechsel).[110]

The importance of identifying the addressee of an international rule can be best seen by example. In the War Damages Case,[111] the Federal Constitutional Court dealt with a claim that international rules entitled individuals to damages arising out of the post-war occupation. British forces had temporarily seized houses and flats belonging to the claimants, and paid allegedly inadequate compensation. One argument raised was that the ‘general rules of public international law’ required adequate compensation to be paid. The Federal Constitutional Court resolved this issue by reference to the addressee of the alleged rule. It concluded as follows:

Insofar as the provisions of public international law establish claims for restitution of damage resulting in connection with the accommodation of the occupying army, these are directed exclusively against the occupying power …[112]

Therefore, the German government could not be the addressee of such a rule. Even if the rule was a ‘general rule of public international law’ that applied domestically under article 25 of the Basic Law, it could not create rights or obligations for the German state in relation to occupation by another state. The international rule was addressed to the occupying state, and lacked the quality of direct applicability in relation to the German state.

The importance of the addressee of the international rule was brought out in even more stark relief in relation to Germany’s ratification of the Convention on the Rights of the Child 1989.[113] Here, Germany declared that the terms of the treaty were only addressed at state organs:

The Federal Republic of Germany also declares that domestically the Convention does not apply directly. It establishes state obligations under international law that the Federal Republic of Germany fulfills in accordance with its national law, which conforms with the Convention.[114]

In this way, any suggestion was avoided that the CROC would create directly enforceable rights for individuals in German courts. A similar declaration was made in relation to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984.[115]

German courts have applied the filter of direct applicability in a very discriminating way in the area of international human rights law. For example, much international law dealing with civil and political rights is clearly directed at individuals, and accordingly, the International Covenant on Civil and Political Rights[116] and the ECHR[117] are directly applicable in German law.[118] (One should keep in mind here that the Basic Rights in the Basic Law are so strong that rarely ever would a call on international human rights law be absolutely necessary in litigation.)[119] However, German courts have held that CEDAW is addressed only to state organs, and therefore does not create rights directly for individuals.[120] When it comes to economic, social and cultural rights, the German courts have applied the filter of direct applicability quite strictly. For example, the International Covenant on Economic, Social and Cultural Rights[121] is seen by German courts as being merely programmatic in nature, and therefore not directly applicable in domestic law.[122]

Thus, the German courts have used the concept of direct applicability as a way of filtering out international law that does not meet minimum standards of certainty, or that is clearly not addressed to individuals. Along with interpretive techniques, and the filter of identifying general rules of international law, direct applicability is used to avoid impractical or unpredictable consequences of international law flowing into the German legal order.

IV. The Görgülü Case

A recent decision of the Federal Constitutional Court emphasises the controlled nature of Germany’s Völkerrechtsfreundlichkeit. The Görgülü Case,[123] handed down on 14 October 2004, concerns the fundamental question of what degree of deference German courts should show to the European Court of Human Rights.

The Görgülü Case is the latest in a long line of cases[124] concerning both the Federal Constitutional Court and the European Court of Human Rights. Much has been written in Germany about the obligations of German courts following a decision of the European Court of Human Rights concerning German law.[125] The Görgülü decision is the Federal Constitutional Court’s most comprehensive discussion of these obligations to date. It is a landmark case for Germany, and for development of the relationship between international courts and domestic courts generally.

The case concerned a child custody and access dispute. Mr Görgülü had a relationship with Ms M from 1997 until the beginning of 1999. In May 1999 he found out that Ms M was pregnant. In August 1999, Christofer was born in Leipzig. Immediately after the birth, Ms M gave him up for adoption. Mr and Ms B (who were registered as prospective adoptive parents) fetched Christofer from hospital four days later and took him home.

Mr Görgülü then began proceedings for custody and access. He had some initial success in gaining access. However, on 20 June 2001 the Naumburg Court of Appeal suspended Mr Görgülü’s access to Christofer. It did so because it considered that a separation from Mr and Mrs B would lead to severe and irreparable psychological damage to Christofer. Mr Görgülü challenged the Naumburg Court of Appeal’s decision before the Federal Constitutional Court, but was unsuccessful.

Mr Görgülü then took the issue to the European Court of Human Rights. In its decision of 26 February 2004,[126] the European Court of Human Rights found that the Naumburg Court of Appeal’s decision of 20 June 2001 violated Mr Görgülü’s rights under article 8 ECHR. [127] It reasoned that the Naumburg Court of Appeal had failed to consider all possible solutions to the problem. In particular, it ‘apparently only focused on the imminent effects which a separation from his foster parents would have on the child, but failed to consider the long-term effects which a permanent separation from his natural father might have on Christofer’.[128] The European Court of Human Rights also found that the Naumburg Court of Appeal’s decision failed the proportionality test.[129] It pointed out that article 46 ECHR obliges state parties to abide by the final judgments of the European Court of Human Rights (in cases to which they are parties), and said that in this case ‘this means making it possible for the applicant to at least have access to his child’.[130]

Mr Görgülü then returned to the German courts, but was unsuccessful in gaining access to Christofer. He took the issue again to the Federal Constitutional Court, and this time succeeded. The Federal Constitutional Court held that the German courts had failed to adequately come to grips with the European Court of Human Rights decision.

The Federal Constitutional Court displayed a critical and pragmatic approach to European Court of Human Rights judgments. The correctness of such judgments is presumed in German law. However, the Federal Constitutional Court also ruled that German courts need to apply German law in all cases. (In this context, it is important to remember that the ECHR is a part of German law.)

The Federal Constitutional Court carefully limited the extent of Völkerrechtsfreundlichkeit, suggesting that it exerts influence only within the framework of the democratic and rechtsstaatliche system of the Basic Law.[131]

The Court ruled that the Basic Law had not yet made the broadest of steps to accept the binding nature of international law.[132] Furthermore:

[t]he GG [Basic Law] intends an expansive Völkerrechtsfreundlichkeit, cross-border cooperation and political integration in a gradually developing international society of democratic Rechtsstaaten. However, it does not intend a submission of every constitutional limit and control to non-German acts of sovereignty. Even the far-reaching supranational integration of Europe, which accepts the direction to apply a norm [Normanwendungsbefehl], when this direction flows from Community law and has direct domestic effect, is subject to a reservation of sovereignty, albeit a greatly reduced one.[133]

From this statement of principle, the Federal Constitutional Court deduced that a German court must deal with a decision of the European Court of Human Rights (ECtHR) in a differentiated manner. At very minimum, German courts are obliged to be conscious of the content and jurisprudence of the ECtHR in the process of making their decisions.[134] German courts must recognisably take a judgment of the European Court of Human Rights into account, and if they do not follow it, must give comprehensible reasons for not doing so.[135] However, if applicable methodological standards leave scope for interpretation and weighing of interests, German courts must give precedence to interpretation in accordance with the ECHR.[136]

These principles clearly demonstrate a critical but friendly approach to international courts. Germany is open to receiving international law, but retains its own sovereignty. The correctness of an European Court of Human Rights judgment is presumed, but not irrefutably so. Such a judgment takes precedence in domestic law only if ‘applicable methodological standards’ allow this to happen: and it is clear that domestic courts have the ability to measure these standards. If a domestic court disagrees with the European Court of Human Rights, it must at least demonstrate why it does so. Failure to do so can justify a constitutional complaint to the Federal Constitutional Court, on the basis that the judgement of the domestic court is not in accordance with requirements of legality under the Basic Law.

The case illustrates that a critical but friendly approach to international law is possible in a modern legal system. In Germany, courts will not have to obey the European Court of Human Rights blindly, but must at least deal with European Court of Human Rights case law in a systematic and verifiable manner. Sometimes this will change the outcome of domestic litigation. Sometimes it will not. This will depend on the ability of German courts to fit the European Court of Human Rights reasoning into the structure of German law. German domestic law retains a stabilising and restraining effect on the influence of international law. But German law in isolation is not presumed to be correct; the Federal Constitutional Court acknowledges that the views of an international court may be a useful addition to the perspectives of domestic courts. The Federal Constitutional Court has at least allowed international law a chance of influencing domestic courts.

V. Conclusion

As mentioned in the Introduction, this paper is not intended to base an argument for introducing German constitutional principles into Australian law. The purpose of this paper is merely to show how a legal system friendly to international law can operate in an efficient and democratic way.

There is nothing inherently bad in adopting a friendly approach to the interaction of international law and domestic law. The experience of Germany shows that Völkerrechtsfreundlichkeit does not destroy the domestic legal fabric. On the contrary, Völkerrechtsfreundlichkeit, carefully applied, can be a useful addition to domestic legal processes. Admittedly, international law poses serious issues for domestic democracy and political accountability. But these issues need not result in an automatic rejection of international law as a whole as an influence on the domestic legal system. The example of Germany shows that automatic rejection as such is unjustifiable.

Therefore, Australian lawyers should not assume that international law cannot be usefully applied in the domestic legal system. Rather than making that assumption, Australian lawyers should remain open to the possibility that particular norms of international law could usefully fill gaps in Australia’s legal system. They should not make themselves blind to what international law has to offer.

For Australian lawyers, the German example could pose a challenge to think critically about the domestic/international law interface. Völkerrechtsfreundlichkeit offers one way of building such a critical approach. Völkerrechtsfreundlichkeit does not mean that German lawyers accept blindly the application of international law. Rather, they have developed sophisticated techniques to limit the application of international law in the domestic sphere (and to allow its application in particular situations). These techniques deserve a careful examination by Australian lawyers. Again, there is no suggestion here that these techniques could or should be transplanted into Australia law. Australia’s own approach to dealing with international law should be adapted to Australia’s particular history and culture, and its political and legal system. But there is nothing in that history or culture, or that political or legal system, which automatically rules out a friendly approach to international law.


[∗] Senior Assistant Parliamentary Counsel, Commonwealth Office of Parliamentary Counsel, Canberra.
The views expressed in this article are my personal views only. My thanks to Professor Philip Kunig, who made it possible for me to study at the Free University in Berlin over the winter of 2004-2005. Thanks also to the two anonymous referees, who provided helpful comments.

[1] H Charlesworth, M Chiam, D Hovell and G Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 432.

[2] Some German lawyers find useful insights in the Australian legal system. One well-known German lawyer wrote as follows: ‘Australia belongs to the countries of the world that do not immediately impose themselves as a subject of legal comparison from a German perspective. … the legal world of Australia is not a sleepy place at the end of the world, but rather a laboratory of new developments, which certainly should not be taken unhesitatingly into German law, but which at least can give food for thought for current or future discussions. To this extent, Australia is an interesting field of experiment for German jurists as well.’ ‘Australien gehört zu den Ländern in der Welt, die sich aus deutscher Perspektive für einen Rechtsvergleich zunächst nicht unbedingt aufdrängen. ... die Rechtswelt Australiens [ist] nicht ein verschlafener Platz am Ende der Welt, sondern ein Laboratorium neuer Entwicklungen, die gewiß nicht unbesehen in das deutsche Recht übernommen werden sollten, die aber zumindest Denkanstöße für schon laufende oder künftige Diskussionen geben können. Insofern ist Australien ein auch für deutsche Juristen interessantes Experimentierfeld.’: I von Münch, ‘Australien als juristisches Experimentierfeld’ (1996) 50 Neue Juristische Wochenschrift 3324.

[3] On the German legal system generally, see N Foster and S Sule, German Legal System and Laws (3rd ed, 2002). For a detailed discussion in English of German constitutional law, see D Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, (2nd ed, 1997).

[4] See generally on the Federal Constitutional Court, K Schlaich and S Korioth, Das Bundesverfassungsgericht (6th ed, 2004).

[5] V Jackson and M Tushnet, Comparative Constitutional Law (1999) 457.

[6] Basic Law (Grundgesetz) 1949, art 100.

[7] Basic Law (Grundgesetz) 1949, art 93 I 1-4.

[8] Basic Law (Grundgesetz) 1949, art 93 I 4a-5.

[9] Foster and Sule, above n 3, 38.

[10] H Dreier (ed), Grundgesetz-Kommentar (vol 1, 1996), (vol 2, 1998), ( vol 3, 2000); T Maunz and G Durig (eds) Grundgesetz, (vol 5, cont update); I von Münch and P Kunig (eds), Grundgesetz-Kommentar, (5th ed, vol 1, 2000); (5th ed, vol 2, 2001); (5th ed, vol 3, 2003), and M Sachs (ed), Grundgesetz (3rd ed, 2003). These Commentaries contain a lengthy article by an eminent constitutional lawyer on each provision of the Basic Law.

[11] The citation of Federal Constitutional Court cases is rather curt from the perspective of a common lawyer; they are generally cited by only volume, first page and relevant page, eg, BVerfGE 83, 37 (38) (BVerfGE stands for Bundesverfassungsgericht Entscheidungen, ie decisions of the Federal Constitutional Court). Recent cases that have not yet been published in official volumes are cited by their court reference; eg 2 BvR 1481/04 of 14 October 2004 (which I have called Görgülü for the purposes of this article). Decisions of courts other than the Federal Constitutional Court are cited in a similar way.

Important cases tend to attract a nickname, which is often also cited; eg BVerfGE 74, 358 (Presumption of Innocence) . Sometimes these nicknames have a touch of humour; eg BVerfGE 37, 271 (So Long As (1)) BVerfGE 37, 271. This was a reference to the famous passage in the case where the Federal Constitutional Court decided (roughly speaking) that it would review the effect of decisions of the European Court of Justice so long as European Community law did not provide human rights protections equivalent to those in the Basic Law.

[12] I Pernice, in Dreier (ed), above n 10, art 25, 430 [2] (citing E Menzel, ‘Zur Revision des Grundgesetzes: Die Regelung über die Auswärtige Gewalt’ Die Öffentliche Verwaltung (1971) 532). The content of art 25 was also influenced by the writing of A Verdross, Deutsche Juristen-Zeitung (1919) 291 (see B Simma, D Khan, M Zöckler and R Geiger, ‘The Role of German Courts in the Enforcement of International Human Rights’ in B Conforti and F Francioni (eds), Enforcing International Human Rights in Domestic Courts (1997) 75, fn 15).

[13] M Stolleis, Recht im Unrecht (1994).

[14] Gesetz zur Behebung der Not von Volk und Reich, (Empowerment Act, or Ermächtigungsgesetz), 24 March 1933; <http://www.oefre.unibe.ch/law/dns/ermaechtigungsgesetz.html> .

[15] The most famous example of a ‘crown jurist’ of the Nazi era was the international and constitutional lawyer Carl Schmitt. There is an enormous literature about Schmitt. For a short introduction, see M Lauerman, ‘Versuch über Carl Schmitt im Nationalsozialismus’ in K Hansen and H Lietzman (eds), ‘Carl Schmitt und die Liberalismuskritik (1988) 37. Schmitt has an awkward legacy in German constitutional law. His technical skills as a lawyer were undoubted, and acknowledged by his opponents. According to Georg Schwarzenberger, a German expatriate: ‘At some time, I must confess that I still have a great admiration for Karl [sic] Schmitt. He is not only a ‘talent’, but a real genius, albeit an evil one. There is hardly any German writer whom I find more stimulating. Like so many other intelligent people with whom I disagree, he makes me at least think over the reasons why I do so.’ (Quoted in S Steinle, Völkerrecht und Machtpolitik: Georg Schwarzenberger 1908-1991 (2002) 171).

[16] Basic Law (Grundgesetz) 1949, art 79 III.

[17] For an introduction, see B Pieroth and B Schlink, Grundrechte (19th ed, 2003).

[18] P Kunig, Das Rechtsstaatsprinzip (1986).

[19] Basic Law (Grundgesetz) 1949, art 79.

[20] The Weimar Republic Constitution, art 4, referred to the ‘generally accepted rules of public international law’. According to the prevailing opinion of the time, this meant that a rule of international law was only covered by the article to the extent that it had been accepted by Germany; Pernice, in Dreier, above n 10, art 25, 430 [2].

[21] Section 4 of the Empowerment Act passed in 1933, above n 14, provided as follows: ‘Treaties of the Reich with foreign States relating to matters of Reich legislation shall not require assent from the bodies involved in legislation. The Reich government shall enact the provisions necessary to implement these treaties.’ Decisions of the Bundesverfassungsgericht – Federal Constitutional Court –- Federal Republic of Germany (trans 1992, vol 1 pt 1), 111.

[22] BVerfGE 83, 37. See Dreier, in Dreier, above n 10, art 28, 518 [72].

[23] Dreier, in Dreier, above n 10, art 28, 493 [24] fn 73.

[24] Treaty of the European Union (Maastricht Treaty) (7 February 1992), 31 ILM 253.

[25] Rojahn, in von Münch and Kunig, above n 10, art 23, 123 [2]; Scholz, in Maunz and Durig, above n 10, art 23, 33 [1].

[26] I Pernice, ‘Die Beteiligung Der Länder In Angelegenheiten Der Europäischen Union: Zur Reform Des Artikel 23 GG, WHI – Paper 8/04 (2004).

[27] A Fischer-Lescano, ‘Völkerrechtliche Praxis der BRD in den Jahren 2000 bis 2002’ (2004) 64 ZaöRV 198.

[28] Bundesgesetzblatt, 2000 I, 1633, Fischer-Lescano, above n 27, 198.

[29] Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979), 1249 UNTS 13.

[30] Bundesgesetzblatt, 2000 I, 1822, Fischer-Lescano, above n 27, 198. For the litigation in the ECJ giving rise to the issue, see Tanja Kreil v Germany (C-285/98) [2000] EUECJ C-285/98; [2000] ECR I-69 .

[31] Rojahn, in von Münch and Kunig, above n 10, art 25, 243 [4]; P Kunig, Völkerrecht und staatliches Recht’, in W Vitzthum (ed), Völkerrecht (2nd ed, 2001) 28ff; Pernice, in Dreier, art 25, 436 [14], above n 10.

[32] Pernice, ibid 438 [16], quoting BVerfGE 27, 253 (274) and BVerfGE 46, 342 (363, 403ff).

[33] For discussions of Völkerrechtsfreundlichkeit, see A Bleckman, ‘Die Völkerrechtsfreundlichkeit der deutschen Rechtsordnung’ (1979) Die Öffentliche Verwaltung 309; A Bleckman, ‘Der Grundsatz der Völkerrechtsfreundlichkeit der deutschen Rechtsordnung’ (1996) Die Öffentliche Verwaltung 137; and the literature cited in Rojahn, in von Münch and Kunig, above n 10, art 24, 178 [2].

[34] Rojahn, in von Münch and Kunig, ibid, art 24, 179 [2], quoting BVerfGE 18, 112 (121) and BVerfGE 31, 58 (75).

[35] BVerfGE 63, 343 (370) (Legal Assistance Agreement) ; ‘Das Grundgesetz geht von der Eingliederung des von ihm verfassten Staates in die Völkerrechtsordnung der Staatengesellschaft aus…’.

[36] BVerfGE 74, 358 (370) (Presumption of Innocence) : ‘Gesetze … sind im Einklang mit den völkerrechtlichen Verpflichtungen der Bundesrepublik Deutschland auszulegen und anzuwenden, selbst wenn sie zeitlich später erlassen worden sind als ein geltender völkerrechtlicher Vertrag; denn es ist nicht anzunehmen, daß der Gesetzgeber, sofern er dies nicht klar bekundet hat, von völkerrechtlichen Verpflichtungen der Bundesrepublik Deutschland abweichen oder die Verletzung solcher Verpflichtungen ermöglichen will.’ ‘laws … are to be interpreted and applied in harmony with the public international law obligations of the Federal Republic of Germany, even when they have been passed at a later point in time than an applicable international treaty; because one should not presume that the legislator, to the extent that it has not clearly so indicated, intends to depart from the public international law obligations of the Federal Republic of Germany or to enable the breach of such obligations.’ See also Simma et al, above n 12, 94.

[37] BVerfGE 74, 358 (370) (Presumption of Innocence) : ‘In interpreting the Basic Law, the content and the state of development of the European Convention on Human Rights are also to be taken into account, to the extent that this does not lead to a restriction or reduction in the protection of the Basic Rights according to the Basic Law, an effect that the Convention itself aims to rule out (art. 60 European Convention on Human Rights). Therefore the decisions of the European Court of Human Rights also serve, to that extent, as an interpretive aid for the determination of the content and field of application of the Basic Rights and principles of the rule of law in the Basic Law. Further, laws – in this case the criminal process regulations – are to be interpreted and applied in accordance with Germany’s international law obligations, even when they have been passed at a later point in time than an applicable treaty; because one should not presume that the legislator, to the extent that it has not clearly indicated, wants to depart from Germany’s international law obligations or to enable the breach of such obligations.’ ‘Bei der Auslegung des Grundgesetzes sind auch Inhalt und Entwicklungsstand der Europäischen Menschenrechtskonvention in Betracht zu ziehen, sofern dies nicht zu einer Einschränkung oder Minderung des Grundrechtsschutzes nach dem Grundgesetz führt, eine Wirkung, die die Konvention indes selbst ausgeschlossen wissen will (art. 60 EMRK). Deshalb dient insoweit auch die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte als Auslegungshilfe für die Bestimmung von Inhalt und Reichweite von Grundrechten und rechtsstaatlichen Grundsätzen des Grundgesetzes. Auch Gesetze – hier die Strafprozeßordnung – sind im Einklang mit den völkerrechtlichen Verpflichtungen der Bundesrepublik Deutschland auszulegen und anzuwenden, selbst wenn sie zeitlich später erlassen worden sind als ein geltender völkerrechtlicher Vertrag; denn es ist nicht anzunehmen, daß der Gesetzgeber, sofern er dies nicht klar bekundet hat, von völkerrechtlichen Verpflichtungen der Bundesrepublik Deutschland abweichen oder die Verletzung solcher Verpflichtungen ermöglichen will.’

[38] The principle of statutory construction is a part of Australian law: D Pearce and R Geddes, Statutory Interpretation in Australia (5th ed, 2001) 57 [3.8], as well as the authorities cited by Justice Kirby of the High Court of Australia in Coleman v Power [2004] HCA 39; (2004) 209 ALR 182. 241, fn 230. There is nevertheless some controversy about the extent of this principle of construction. In Coleman v Power (189-91), Chief Justice Gleeson supported a version of the principle that would discount the significance of international law coming into existence after the creation of the relevant legislation. He also said that this principle of construction should be formulated with care, as it was a topic of potentially wide constitutional significance (see also criticism of the principle by Justice McHugh in Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124, 140-41). Justice Kirby prefers a wider and more ambulatory method of interpretation (Al-Kateb, 163-73).

The status of the principle of constitutional interpretation is unclear, and is also controversial (as demonstrated by the well-known exchange of views in Al-Kateb between Justice McHugh (140-45, denying the principle) and Justice Kirby (163-73, supporting the principle)).

[39] BVerfGE 18, 112 (121); BVerfGE 75, 1 (17).

[40] Pernice, in Dreier, above n 10, art 25, 441 [23].

[41] Since the ‘general rules of public international law’ form a part of the general Basic Rights set out in art 2 I of the Basic Law, a constitutional complaint (Verfassungsbeschwerde) can be grounded on a breach of such rules; Simma et al, above n 12, 77, citing BVerfGE 77, 170 (Storage of Chemical Weapons) , 2 BvR 1662/91.

[42] Die allgemeinen Regeln des Völkerrechtes sind Bestandteil des Bundesrechtes. Sie gehen den Gesetzen vor und erzeugen Rechte und Pflichten unmittelbar für die Bewohner des Bundesgebietes.’

[43] See BVerfGE 96, 68 (East German Ambassador) , also BVerfGE 23, 288 (317) (War Damages II) ; BVerfGE 94, 315 (328).

[44] Pernice, in Dreier, above n 10, art 25, 438 [17].

[45] R Geiger, Grundgesetz und Völkerrecht (3rd ed, 2002) 162; BVerfGE 16, 27 (33) (Iranian Embassy).

[46] There is some dispute over the status of regional or European rules of customary international law; Rojahn, in von Münch and Kunig, above n 10, art 25, 246-47 [6]; Herdegen, in Maunz and Durig, above n 10, art 25, 17 [32].

[47] BVerfGE 16, 27 (Iranian Embassy).

[48] Ibid 33.

[49] BVerfGE 6, 309 (Concordat), above n 21, 133-34).

[50] Incidentally, art 31 is a masterpiece of concise legal drafting; in its entirety it reads ‘Bundesrecht bricht Landesrecht’ (literally, ‘Federal law breaks state law’).

[51] Herdegen, in Maunz and Durig, above n 10, art 25, 23 [43], quoting BGHSt 27, 30 (31f).

[52] Herdegen, in Maunz and Durig, above n 10, art 25, 23 [43] fn 5. See H Steinberger, HdbStR (1992) vol VII, §173 [55].

[53] Basic Law (Grundgesetz) 1949, Art 31 is also relevant to treaties. Art 31 I gives the responsibility for external relations to the federal government. Art 31 II gives each Land (or a group of Länder) consultation rights in relation to treaties that affect it (or them) in a different way to other Länder (see K Ipsen, Staatsrecht I: Staatsorganisationsrecht (5th ed 2003) 304 [1077]). Art 31 III empowers the Länder to conclude treaties in their own right, with the consent of the federal government. Treaties concluded by the Länder generally concern less important technical matters (see Ipsen, ibid 305 [1080]).

[54] The original text reads: ‘Verträge, welche die politischen Beziehungen des Bundes regeln oder sich auf Gegenstände der Bundesgesetzgebung beziehen, bedürfen der Zustimmung oder der Mitwirkung der jeweils für die Bundesgesetzgebung zuständigen Körperschaften in der Form eines Bundesgesetzes. Für Verwaltungsabkommen gelten die Vorschriften über die Bundesverwaltung entsprechend.’ An alternative translation is given by; Tschentscher, The Basic Law (Grundgesetz) (2003): ‘Treaties which regulate the political relations of the Federation or relate to matters of federal legislation requires [sic] the consent or participation, in the form of a federal statute, of the bodies competent in any specific case for such federal legislation. As regards administrative agreements, the provisions concerning the federal administration are applicable.’

[55] Basic Law (Grundgesetz) 1949 Art 59 I.

[56] For details on parliamentary assent, and the distinction between Staatsverträge and Verwaltungsabkommen, see Rojahn, in von Münch and Kunig, above n 10, art 59; Streinz, in Sachs, above n 10, art 59; Herdegen, in Maunz and Durig, above n 10, art 59.

[57] In such cases, only the upper House (Bundesrat) needs to approve the treaty.

[58] A summary in English can be found in Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995), [10.49]-[10.71].

[59] Streinz, in Sachs, above n 10, art 59, 1388 [81]; Rojahn, in von Münch and Kunig, above n 10, art 59, 1038 [51]-[56a].

[60] Ibid 1017 [33]-[34].

[61] Ibid 1017 [34].

[62] European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), 213 UNTS 222.

[63] Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004 (Görgülü Case) at [31] (‘Damit hat er sie in das deutsche Recht transformiert und einen entsprechenden Rechtsanwendungsbefehl erteilt’).

[64] BVerfGE 6, 309 (Concordat) (above n 21, 133-4).

[65] BVerfGE 15, 25, 31-32; BVerfGE 16, 27, 32-33.

[66] Moser, Das Völkerrecht in der Praxis der deutschen Gerichte, 40, 44.

[67] BVerfGE 18, 441 (448) (AG in Zürich) (above n 21, 177-8). See also L Wildhaber and S Breitenmoser, ‘The Relationship between Customary International Law and Municipal Law in Western European Countries’ (1988) ZaöRV 48, 181.

[68] R Jennings and A Watts (eds), Oppenheim’s International Law (9th ed, vol 1, 1992) 81 [20].

[69] See above fn 38.

[70] Rojahn, in von Münch and Kunig, above n 10, art 24, 179 [3].

[71] BVerwGE 9 May 1973 (1 D 8.73) above n 12, 73.

[72] Rojahn, in von Münch and Kunig, above n 10, art 59, 1021 [37].

[73] The position of the single ‘persistent objector’ to a rule of customary international may be problematic here, especially given the Federal Constitutional Court’s view that Germany’s consent is not necessary for the creation of ‘general rules of public international law’; BVerfGE 16, 27 (33) (Iranian Embassy) .

[74] BVerfGE 96, 68 (East German Ambassador) : ‘Zur Entstehung von Völkergewohnheitsrecht ist grundsätzlich erstens eine ausreichende Staatenpraxis, d.h. eine dauernde und einheitliche Übung unter weitgestreuter und repräsentativer Beteiligung erforderlich (vgl. BVerfGE 94, 315 [332]). Zweitens muß hinter dieser Praxis die opinio iuris sive necessitatis stehen, d.h. die Auffassung, im Rahmen des völkerrechtlich Gebotenen und Erlaubten oder des Notwendigen zu handeln (vgl. Verdross/Simma, Universelles Völkerrecht, 3. Aufl., 1984, S. 353 ff.; Dahm/Delbrück/Wolfrum, Völkerrecht, Bd. I/1, 2. Aufl., 1989, S. 59 ff.; s.a. Art. 38 Abs. 1 lit. b IGH-Statut). Zur Feststellung des Völkergewohnheitsrechts werden richterliche Entscheidungen und völkerrechtliche Lehrmeinungen als Hilfsmittel herangezogen (Art. 38 Abs. 1 lit. d IGH-Statut).’

[75] BVerfGE 23, 288 (316) (War Damages II) , above n 21, 203.

[76] BVerfGE 15, 25 (42) (Yugoslav Military Mission).

[77] BVerfGE 75, 1 (18) (Public International Law).

[78] BVerfGE 46, 342 (364) (Philippine Embassy).

[79] OLG Bremen AVR 9 (1961/1962), 351ff, LG Hamburg AWD 1973, 163, quoted in Streinz, in Sachs, above n 10, art 25, 1006 [56], fn 116.

[80] General Agreement on Tariffs and Trade (30 October 1947) 55 UNTS 194; FG Hamburg EFG 1970, 176, FG München EFG 1970, 114, quoted in Pernice, in Dreier, above n 10, art 25, 447 [38], fn 155.

[81] BVerfGE 27, 253 (War Damages) .

[82] BVerfGE 18, 441 (449) (AG in Zürich) .

[83] BVerfG NJW 1995, 651; BVerwG NJW 1986, 1427 (1428), quoted in Streinz, in Sachs, above n 10, art 25, 1006 [60], fn 126.

[84] Streinz, in Sachs, above n 10, art 25, 1004 [51].

[85] BVerfGE 63, 343 (361) (Legal Assistance Agreement) ; Streinz, in Sachs, above n 10, art 25, 1005 [53].

[86] BVerfGE 16, 27 (33) (Iranian Embassy) ; BVerfGE 46, 342 (364) (Philippine Embassy) ; BVerfGE 64, 1 (44) (National Iranian Oil Company) ; Streinz, in Sachs, above n 10, art 25, 1005 [55].

[87] Strafgesetzbuch, s 5-6. See Fischer-Lescano, above n 27.

[88] BSGE 7, 257 (263), quoted in Rojahn, in von Münch and Kunig, above n 10, art 25, 254 [22].

[89] BVerfGE 16, 27 (Iranian Embassy) .

[90] Ibid 62.

[91] Ibid: ‘The general rules of public international law, according to which foreign States are entitled to immunity from domestic jurisdiction for their sovereign activities, do not become empty of content and lose their character as legal norms only by reason that national law is principally the measure for the distinction between acts iure imperii und iure gestionis. Their more detailed content results much more out of the national law applicable in each case. It is also not uncommon for a norm of international law to refer to rules of domestic law.’ ‘Die allgemeine Völkerrechtsregel, nach der ausländischen Staaten für ihre hoheitliche Betätigung Immunität von inländischer Gerichtsbarkeit zusteht, wird nicht inhaltsleer und verliert ihren Charakter als Rechtsnorm nicht dadurch, daß für die Abgrenzung von Akten iure imperii und iure gestionis grundsätzlich das nationale Recht maßgebend ist. Ihr näherer Inhalt ergibt sich vielmehr aus dem jeweils anwendbaren nationalen Recht. Es ist auch nicht ungewöhnlich, daß Völkerrechtsnormen auf nationales Recht verweisen.’

The Federal Constitutional Court (at 61) gave as another example of this ‘reference’ to domestic law in the international law of nationality.

[92] Rojahn, in von Münch and Kunig, above n 10, art 25 251 [16]. Simma et al, above n 12 suggest (at 85) that there is a ‘subjective element’ to direct applicability in the area of human rights treaties, ie the intent of the drafters and parties to the treaty.

[93] Streinz, in Sachs, above n 10, art 59, 1385 [68].

[94] These words are taken from Zuleeg’s description of direct applicability in relation to treaties; M Zuleeg, ‘Die innerstaatliche Anwendbarkeit völkerrechtlicher Verträge am Beispiel des GATT und der Europäischen Sozial-Charta’, (1975) 35 ZaöRV 341 [6]: ‘wenn die innerstaatlichen Verwaltungsbehörden und Gerichte aus dem Vertrag Rechtsfolgen für den Einzelfall ableiten dürfen’, quoted in Geiger, above n 45, 160.

[95] Streinz, in Sachs, above n 10, art 25, 1002 [39].

[96] BVerfGE 46, 342 (362) (Philippine Embassy) : ‘Wenn Art. 25 Satz 2, 100 Abs. 2 GG davon sprechen, daß die allgemeinen Regeln des Völkerrechts Rechte und Pflichten unmittelbar für den Einzelnen erzeugen, so sind damit einmal jene Fälle gemeint, in denen eine allgemeine Regel des Völkerrechts selbst nach ihrem Inhalt und Adressatenkreis unmittelbar, d. h. ohne einen weiteren normativen Akt etwa des innerstaatlichen Gesetzes- oder Verordnungsrechts, mithin bereits auf der Ebene des allgemeinen Völkerrechts subjektive Rechte oder Pflichten des privaten Einzelnen begründet.’

[97] However, as the quoted passage from the Federal Constitutional Court indicates, article 100 II of the Basic Law has special significance in relation to article 25 of the Basic Law. Article 100 II of the Basic Law creates an obligation for lower courts to refer to the Federal Constitutional Court all questions of whether a rule of public international law is a part of federal law, or whether it creates direct rights and duties for individuals. This provision is needed in Germany’s split court system, as without the duty to refer such questions to the Federal Constitutional Court, different court streams could answer such questions in different ways. Article 100 II of the Basic Law could be seen as another aspect of the Basic Law’s Völkerrechtsfreundlichkeit.

[98] See the works cited in Rojahn, in von Münch and Kunig, above n 10, art 25, 251 [17], and in Streinz, in Sachs, above n 10, art 59, 1385 [66].

[99] Rojahn, in von Münch and Kunig, above n 10, art 25, 251 [17]; Geiger, above n 45, 160.

[100] Ibid.

[101] This should be understood in the light of the distinction drawn in German law between subjective and objective rights and duties. Objective rights exist generally for state organs, while subjective rights are generally those of individuals. For example, the state may have clear objective rights (and duties) in relation to approval of building projects, but it is less clear whether residents of neighbouring properties have subjective rights to intervene in the approval process.

[102] Rojahn, in von Münch and Kunig, above n 10, art 25, 251 [16].

[103] Section 2 Abgabenordnung. See D Birk, §2, in Hübschmann, Hepp and Spitaler, (eds), Kommentar zur Abgabenordnung und Finanzgerichtsordnung (2002) 150ff.

[104] International Tax Agreements Act 1953 (Cth).

[105] BVerfGE 19, 1 (5).

[106] OLG München InfAuslR (1995) 383, quoted in Rojahn, in von Münch and Kunig, above n 10, art 25, 262 [29].

[107] KG, NJW (1961), 1313, quoted in Rojahn, in von Münch and Kunig, above n 10, art 25, 262 [29].

[108] Foster and Sule, above n 3.

[109] Rojahn, in von Münch and Kunig, above n 10, art 25, 251 [16].

[110] Geiger, above n 45, 166.

[111] BVerfGE 27, 253, above n 21, 206.

[112] Ibid 215.

[113] Convention of the Rights of the Child (20 November 1989), 1577 UNTS 3.

[114] Bundesgesetzblatt, II (1992), 990, quoted in Simma et al, above n 12, 79, fn 26.

[115] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984), 1465 UNTS 85; Bundesgesetzblatt, II (1993), 715, noted in Simma et al, above n 12, 79.

[116] International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171.

[117] European Convention for the Protection of Human Rights and Fundamental Freedoms (4 December 1950), 213 UNTS 222.

[118] Simma et al, above n 12, 86.

[119] Differences between the Basic Rights and international human rights law may arise in questions of balancing competing rights. For example, in the recent von Hannover v Germany decision, the European Court of Human Rights disagreed with the Federal Constitutional Court as to the balance to be struck between rights of free speech and rights of privacy: von Hannover v Germany (2004) VI Eur Court HR 294 .

[120] OVG NW 23/10/1990 DVBl. (1991), 118, quoted in Simma et al, above n 12, 86.

[121] International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3.

[122] VGH Baden-Würtemburg 17/12/91 (9 S 2162/90), quoted in Simma et al, above n 12, 86.

[123] 2 BvR 1481/04 of 14 October 2004, <http://www.Federal Constitutional Court.de/entscheidungen/rs20041014_2bvr148104.html> English transl: <http://

www.bundesverfassungsgericht.de/cgi-bin/link.pl?entscheidungen>.

[124] For a comprehensive discussion of the cases concerning criminal procedure, see O Kieschke, Die Praxis des Europäischen Gerichtshofs für Menschenrechte und ihre Auswirkungen auf das deutsche Strafverfahrensrecht (2003).

[125] See the literature cited in Kieschke ibid, 58ff.

[126] Görgülü v Germany (2004) 165 Eur Court HR.

[127] Art 8 ECHR provides: ‘1. Everyone has the right to respect for his ... family life ... and, 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.’

[128] Görgülü v Germany (2004) 165 Eur Court HR [46].

[129] Ibid [50].

[130] Görgülü v Germany (2004) 165 Eur Court HR [64].

[131] Görgülü v Germany (2004) 165 Eur Court HR [34].

[132] Ibid.

[133] Görgülü v Germany (2004) 165 Eur Court HR [36] (author’s transl, based on official transl): ‘Das Grundgesetz will eine weitgehende Völkerrechtsfreundlich-keit, grenzüberschreitende Zusammenarbeit und politische Integration in eine sich allmählich entwickelnde internationale Gemeinschaft demokratischer Rechtsstaaten. Es will jedoch keine jeder verfassungsrechtlichen Begrenzung und Kontrolle entzogene Unterwerfung unter nichtdeutsche Hoheitsakte. Selbst die weitreichende supranationale europäische Integration, die sich für den aus der Gemeinschaftsquelle herrührenden innerstaatlich unmittelbar wirkenden Normanwendungsbefehl öffnet, steht unter einem, allerdings weit zurückgenomm-enen Souveränitätsvorbehalt. (Basic Law (Grundgesetz) 1949 art 23 Abs 1).

[134] Ibid [48].

[135] Görgülü v Germany (2004) 165 Eur Court HR.

[136] Ibid [62].


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