International law, Sixth edition
part of municipal law but regards it as superior to municipal legislation
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International Law MALCOLM N. SHAW
part of municipal law but regards it as superior to municipal legislation, has been the subject of a great deal of controversy as writers and lawyers have tried to establish whether international legal rules would invalidate any inconsistent municipal legislation and, indeed, whether international rules could override the constitution. Similarly, the phrase ‘general rules of public international law’ has led to problems over interpretation as it may refer to all aspects of international law, including customary and treaty rules, or merely general principles common to all, or perhaps only certain nations. 223 April 2003 reaffirming that article 29 does not confer individual rights, 132 ILR, pp. 407, 446. 218 See e.g. Malachtou v. Armefti and Armefti 88 ILR, p. 199. 219 See e.g. International Law Chiefly as Interpreted and Applied in Canada (ed. H. Kindred), 6th edn, Toronto, 2000, chapter 4; Re Newfoundland Continental Shelf [1984] 1 SCR 86, and C. Okeke, The Theory and Practice of International Law in Nigeria, London, 1986. 220 See e.g. L. Wildhaber and S. Breitenmoser, ‘The Relationship Between Customary In- ternational Law and Municipal Law in Western European Countries’, 48 Za¨oRV, 1988, p. 163; Oppenheim’s International Law, pp. 63 ff., and Henkin et al., International Law: Cases and Materials, pp. 154 ff. 221 See H. D. Treviranus and H. Beemelmans, ‘National Treaty Law and Practice: Federal Republic of Germany’ in Leigh and Blakeslee, National Treaty Law and Practice, p. 43. 222 See e.g. the Parking Privileges for Diplomats case, 70 ILR, p. 396. 223 See e.g. German Consular Notification case (Individual Constitutional Complaint Proce- dure), BVerfG, 2 BvR 2115/01, 19 September 2006, and G¨org¨ul¨u case (Individual Con- stitutional Complaint), BVerfG, 2 BvR 1481/04 of 14 October 2004, 111 Entscheidungen des Bundesverfassungsgerichts (BVerfGE), 307–32, [2004] Neue Juristische Wochenschrift (NJW) 3407–3412. See also D. P. O’Connell, International Law, 2nd edn, London, 1970, vol. I, pp. 71–6, and sources therein cited. See also generally A. Drzemczewski, The Euro- pean Human Rights Convention in Domestic Law, Oxford, 1983, and Peaslee, Constitutions, vol. III, p. 361. 172 i n t e r nat i o na l l aw As far as treaties are concerned, the German federal courts will regard these as superior to domestic legislation, though they will not be allowed to operate so as to affect the constitution. Article 59 of the Basic Law declares that treaties which regulate the political relations of the federation or relate to matters of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies competent in any specific case for such federal legislation. Thereafter such treaties will be treated as incorporated into German law, but with the status (no higher) of a federal law. Such laws may indeed be challenged before the German courts by means of a constitutional complaint if the treaty in question contains provisions directly encroaching upon the legal sphere of the individual. 224 Article 91(1) of the Netherlands Constitution 1983 requires the prior approval of Parliament before treaties, or their denunciation, become binding, while article 91(3) provides that any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Chambers of the Parliament, provided that at least two- thirds of the votes cast are in favour. Article 93 states that provisions of treaties and of decisions by international organisations which may be binding by virtue of their contents are to become binding after they have been published, while article 94 provides that statutory regulations in force within the kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or with resolutions by international institutions. 225 Customary international law is not referred to in the Constitution. It is deemed to apply internally, although it seems that statute will prevail in cases of conflict. 226 It is for the courts to establish whether the provisions of a treaty or decision by an 224 See the Unification Treaty Constitutionality case, 94 ILR, pp. 2, 54. See also the East Download 7.77 Mb. Do'stlaringiz bilan baham: |
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