Transformation (law)

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In jurisprudence, transformation is the implementation of international law into national law through a legislative act .

General

State legal systems generally provide how international law is to be implemented in state law, i.e. how it is ensured within the state that the relevant state organs behave in such a way that the state fulfills its obligation under international law.

Theories on the relationship to national law, national enforcement, applicability and national rank
Relationship between international law and national law Domestic enforcement of international law Enforcement Domestic rank
  • specially defined by international treaty
  • not specifically set
  • monism
Unity of international law and national law
  • with primacy of IL
Primacy of international law
  • radical monism (strict monism)
every national sovereign act contrary to international law is null and void
  • tempered monism
every national sovereign act contrary to international law is initially valid, but must be rejected by judicial review
  • with primacy of national law
National law takes precedence
  • dualism
International law and national law are different legal systems
  • radical dualism (strict dualism)
no conflicts possible, as there are separate, possibly tangent circles
  • tempered dualism
partial overlaps and thus conflicts possible; in the area of ​​overlap: conflict of law rules, otherwise: domestic sovereign act still valid, but the state is liable to the outside world
Adoption theory (adaptation)

International law is applicable domestically without any further act

only self-executing norms are applicable, enforceable or transformable:
  • the norm must be sufficiently determined and
  • authorize or oblige the individual according to wording, purpose and content
Execution theory (execution)

Enforcement order establishes domestic applicability, but does not change the addressees or the legal nature (international law)

Transformation theory (transformation)
  • strict transformation theory
  • moderate transformation theory
Transformation only changes the target group; Entry into force etc. is therefore based on international law
  • general transformation
  • special transformation
Individual transformation, for example through the act of consent to international agreements = treaty laws
 The rank of transformed law is directed
  • according to special regulations
  • otherwise according to the rank of the transformer

Transformation in Germany

According to Article 25 of the Basic Law (GG), only the general rules of international law apply directly as federal law ; for other international law regulations, such as international treaties , an act of implementation, the so-called Transformation Act , is required in Germany . Only this Transformation Act makes international regulations part of German law. The transfer of sovereign rights to intergovernmental institutions ( Art. 24 GG) and in particular to the European Union or European Community ( Art. 23 GG) is particularly regulated .

Transformation in member states

A special feature is the transformation into member states: In the Federal Republic of Germany, Article 32 and Article 59, Paragraph 2 of the Basic Law stipulate that the federal government has the right to conclude treaties with foreign states. This extends to matters of legislation and administration that fall within the legislative and administrative competence of the federal states . The domestic transformation of an international treaty is therefore incumbent on the federal states if the treaty extends to matters of their legislative competence (e.g. in the case of international treaties on the school system or culture). The transformation is determined in accordance with Art. 70 ff. GG ("Transformation Competence").

EU law

While EU regulations are directly applicable in the EU member states without any further implementation act ( English self-executing ), EU directives oblige the member states to transform the given framework into national laws ( English non-self-executing ).

literature

  • Ekkehart Stein, Götz Frank: Staatsrecht , Chapter 1 “Section 5 National Constitution and International Order”, 20th edition, Mohr Siebeck, 2007, ISBN 3-161-49110-6 , p. 26 ff.
  • Christoph Degenhart, Constitutional Law I, § 5 VI Foreign Relations and International Treaties, Art. 32, 59 GG, Verlag CF Müller Heidelberg

Individual evidence

  1. ↑ Christoph Degenhart , Staatsrecht I , Rn 562.
  2. ↑ Christoph Degenhart, Staatsrecht I , Rn 561.
  3. ^ Andreas von Arnauld, Völkerrecht , 2012, p. 207