International law clause

The term international law clause is understood in a broader sense to mean constitutional regulations that regulate the relationship between the domestic legal system and the norms of international law. In a narrower sense, the term is used for the regulation in Article 25 of the Basic Law , according to which the general rules of international law are part of German federal law and take precedence over the laws .

The regulations of customary international law are recognized as general rules of international law within the meaning of Art. 25 GG . In the opinion of the Federal Constitutional Court and the prevailing doctrine , the term also extends to the general legal principles of international law, such as the principle pacta sunt servanda . On the other hand, international treaty law is not covered unless it follows the customary law of international law or has itself become customary international law.

According to prevailing opinion and jurisprudence, Art. 25 GG places an “intermediate rank” between (federal) constitutional law and ordinary law. As a result, in the event of a contradiction between general rules of international law and domestic law, the latter must first be interpreted in accordance with international law or, if this is not possible, cannot be applied (priority of application of the general rules of international law). However, the conflicting domestic law is not null and void. Like the legislature, German authorities and courts must ex officio observe the general rules of international law. If there is a dispute in pending court proceedings as to whether a general rule of international law is part of federal law and whether it directly creates rights and obligations for the individual, the court must refer the question to the Federal Constitutional Court in accordance with Article 100, Paragraph 2 of the Basic Law.

literature

• Rudolf Streinz : Commentary on Article 25 of the Basic Law. In: Michael Sachs : Basic Law. Comment. CH Beck, 6th edition, Munich 2011, ISBN 978-3-406-62413-1 .

Individual evidence

1. ↑ See instead of all Ingolf Pernice, in: Dreier (Ed.), Basic Law , Volume II, 2nd edition, Tübingen 2006, Art. 25 Rn. 24 with further evidence.