State clause

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A federal state clause is a provision in an international treaty that relates to the question of the implementation obligation in federal states and states that are not unitary states .

meaning

The distinguishing feature of federal states is the federal distribution of legislative powers between the state as a whole and the member states (states, cantons).

However, international law does not differentiate between different forms of government of the individual subjects of international law , i. H. how state power is organized within a contracting party. Accordingly, a federal state is valued no differently than a unitary state. This means that each contracting state is obliged to implement ( transform ) the contractual provisions within the law, regardless of the domestic distribution of competences .

In the form of a federal state clause, however, an international treaty takes into account the internal order of competencies, in particular a division of legislative competences between the federal government and the member states. According to this, a federal state is only obliged to implement the contract in its external relationship to the extent that it is capable of doing so internally. Legal consequences for the member states do not arise on the basis of the international treaty, but exclusively on the basis of national constitutional law. In Germany, these are in particular the provisions on the distribution of legislative competence between the Federation and the Länder in Art. 70 ff. GG.

Insofar as the subject matter of the contract falls within the legislative competence of the states, the states are generally obliged to fulfill the federal treaties. This duty is based on loyalty to the federal government . The federal government can violate the requirement of federally friendly behavior according to Art. 93 no. 3 GG before the Federal Constitutional Court , without having to call the Bundesrat beforehand. In addition, it can be enforced by way of federal compulsion under Article 37 of the Basic Law. A duty of the states towards the federal government to comply with the school regulations of the Reich Concordat in accordance with However , the Federal Constitutional Court denied that Article 123 (2) of the Basic Law should be observed in its legislation.

Examples

A federal state clause contains Article 41 of the Geneva Refugee Convention :

Art. 41 - Federal State Clause For federal states or states that are not unified states, the following provisions will be applied:

a) With respect to those articles of this Agreement the implementation of which is the responsibility of federal law, the obligations of the federal government will be the same as those of any non-state contracting party.
b) With regard to those articles of this agreement, the application of which falls within the jurisdiction of the legislation of the member states, provinces or cantons that are not obliged to take legal measures under the Federal Constitution, the Confederation should implement the named articles as soon as possible and with a positive accompaniment inform the competent authorities of the member states, provinces or cantons.
c) A federal state which is a party to this Agreement shall, at the request of any other contracting state, which has been transmitted to it by the Secretary-General of the United Nations, a compilation of the laws and practical implementing measures of the federal or the member states relating to one or the other provision of the Agreement, which describes the extent to which the provision in question has been implemented through an act of legislation or otherwise.

The formulation in Article 34 of the World Heritage Convention is similar .

Web links

Individual evidence

  1. ^ Walter Rudolf : Federal State and International Law. Archives of International Law 1989, pp. 1–30.
  2. ↑ Sebastian Huck: Legal basis and effects of the definition of cultural landscapes. Berlin 2012, p. 35 fmwN google books , accessed on July 9, 2020.
  3. ↑ BVerfG, judgment of March 26, 1957 - 2 BvG 1/55
  4. ↑ Convention for the Protection of the World Cultural and Natural Heritage of November 16, 1972. UNESCO , accessed on July 9, 2020.