La place de la coutume internationale en droit public français

2013 ◽  
Vol 12 (2) ◽  
pp. 267-271 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Case Law ◽  
Public Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Treaty ◽  
Public International Law ◽  
Customary International Law ◽  
The Status

Abstract Bernard Stirn’s presentation examines the status of international custom in French public law. He notes that international custom may be considered as covered by the reference in the preamble of the Constitution to the rules of public international law. He underlines the increased effects of international custom in the French domestic legal order as enshrined in the latest developments of the case-law of the Conseil d’Etat. He stresses that whilst French administrative judges may set aside a law in the event of a conflict with the provisions of an international treaty, they do not possess a similar power in the case of a conflict with a rule of customary international law. He concludes by citing cases in which the French constitutional court has made reference to international custom.

Streikverbot für Beamte – sowohl verfassungs- als auch konventionsgemäß? Kritische Anmerkungen zum Urteil des BVerfG vom 12.6.2018

2018 ◽  
Vol 101 (4) ◽  
pp. 376-394
Author(s):  
Shu-Perng Hwang
Keyword(s):  
International Law ◽  
Public Law ◽  
Civil Servants ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Public International Law ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

This article critically approaches the recent decision of the German Federal Constitutional Court regarding the ban on strikes for civil servants. It shows that the judgment cannot be seen as a decision committed to international public law, as some scholars suggest. By once more adopting a material understanding of Art. 33 para. 5 Basic Law and thereby not only confirming the constitutionality, but in particular the constitutional status of the ban on strikes for civil servants, the court holds on to the absolute primacy of the Basic Law that is not to be undermined by the ECHR or the jurisprudence of the ECtHR as a means of interpretation. The reference to the need to contextualize the jurisprudence of the ECtHR as well as the emphasis on the national particularity of the Federal Republic of Germany clearly indicate that, by developing a state-centred principle of commitment to public international law, the court does not seek to align and harmonize the requirements of the ECHR and the Basic Law by developing a state-centred principle of commitment to public international law but rather to achieve a delimitation of competences between the spheres of the ECtHR and the Federal Constitutional Court.

A HISTORIC DECISION OF THE ITALIAN CONSTITUTIONAL COURT ON THE BALANCE BETWEEN THE ITALIAN LEGAL ORDER’S FUNDAMENTAL VALUES AND CUSTOMARY INTERNATIONAL LAW

2015 ◽  
Vol 24 (1) ◽  
pp. 37-52
Author(s):  
Giuseppe Cataldi
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Constitutional Court ◽  
Customary International Law ◽  
National Courts ◽  
State Immunity ◽  
Italian Law ◽  
The Icj ◽  
Fundamental Values

In judgment No. 238 of 22 October 2014, the Italian Constitutional Court ruled on the legitimacy of certain norms of the Italian legal order which relate to the implementation of the International Court of Justice’s (ICJ) judgment in theJurisdictional Immunities of the State case. In this case the Court found that customary international law concerning State immunity for war crimes and crimes against humanity could not enter the Italian legal order, as it was incompatible with the basic principles of the Italian Constitution. Judgment No. 238/2014 thus reveals a key connection between domestic fundamental values and internationally recognized values. If this connection exists, national courts should decline to give effect to an international decision if it contravenes a fundamental obligation under national as well as international law. Thus, domestic courts may play the role of defenders of the international rule of law from international law itself. According to international law, as well as Italian law, there is no doubt that enforcement of an ICJ decision is mandatory for the State to which the decision is directed. In the case under review, however, the requirement to implement the ruling of the ICJ was set aside in order to defer to the requirement to respect the fundamental values of the Italian legal system, in accordance with the theory of “counter-limits” as developed by the Constitutional Court. This conclusion appears also consistent with the German order, which renders quite weak any possible reaction, or protest, by that State.

scholarly journals The Application of International Law in the Court of Justice of the European Union: Proportionality Rising

2021 ◽  
Vol 22 (4) ◽  
pp. 557-592
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
The European Union ◽  
Legal Certainty ◽  
International Treaty ◽  
Customary International Law ◽  
Court Of Justice ◽  
External Relations ◽  
Frequent Absence

AbstractApplication of international treaty and customary international law at the Court of Justice of the European Union (CJEU) is increasingly recognized by scholars as problematic regarding legal certainty. This Article seeks to illustrate why this is and to propose reform. Through comparing judicial approaches in the application of international law at the CJEU to its approach in internal case law, it is argued that in the frequent absence of proportionality in external case law the Court has utilized, redeployed, or varied other judicial devices in an effort to retain the discretion which proportionality affords. These are argued to effect legal certainty and established concepts of justice within the EU legal system. Accordingly, it is submitted that proportionality should be transplanted fully and openly to external relations case law and that support for this can be extrapolated from existing literature.

scholarly journals Direct Applicability of Generally Accepted Principles of International Law in Legal Order of the Republic of Slovenia

2014 ◽  
Vol 11 (3-4) ◽  
pp. 141-159
Author(s):  
Anton Olaj
Keyword(s):  
International Law ◽  
Case Law ◽  
Legal Order ◽  
The European Union ◽  
Customary International Law ◽  
Court Of Justice ◽  
Per Se ◽  
The Republic ◽  
The One ◽  
Direct Applicability

Self-executing, incorporated and generally accepted principles of international law have been used directly in legal order of the Republic of Slovenia. Systematic records of these identified and enforced norms do not exist. It is difficult for lawyers and judges to get acquainted with them. The predicament is even greater because, with the exception of the Court of Justice of the European Union, a translation of the relevant case law of international tribunals is not available. Generally accepted principles of international law are applicable in Slovenian legal order per se. Despite that, it is not entirely clear how administrative bodies should react in situations where the rights and obligations of legal entities are on the one hand regulated by law and customary international law but on the other hand are contradictory.

The Status of International Law in the EU

2021 ◽  
pp. 421-505
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
International Law ◽  
International Agreements ◽  
Legal Order ◽  
European Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
European Court ◽  
Un Security Council ◽  
The Status ◽  
The Eu

This chapter deals with the status of international law in the EU legal order under the Lisbon Treaty. It presents in great detail the most important cases of the European Court of Justice (ECJ) on the incorporation of international agreements and their rank in the domestic legal order. The origins and current practice of the doctrine of direct effect for specific provisions in an international agreement are explained. Moreover, the chapter contains an assessment of the famous ECJ Kadi-jurisprudence on the significance of human rights in the implementation of UN Security Council Resolutions on counter-terrorism. Finally, it also shows with concrete examples how the Court of Justice developed the status of customary international law in the EU.

The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law

1999 ◽  
Vol 48 (1) ◽  
pp. 3-19 ◽  
Author(s):  
Mariano J. Aznar-Gomez
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Case Law ◽  
Legal Order ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

scholarly journals The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order

2017 ◽  
Vol 17 (1) ◽  
pp. 565
Author(s):  
Erika De Wet
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Legal Order ◽  
Constitutional Court ◽  
The Status ◽  
The Common ◽  
Foreign Judgment ◽  
Domestic Law

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

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