Suchergebnisse

The practical effectiveness of international treaty and customary law rules depends on their applicability within the domestic legal sphere. The article presents the German constitutional law concepts related to this issue, as theyhave been authoritatively developed and consolidated by the German Federal Constitutional Court. It demonstrates that the principle of "Völkerrechtsfreundlichkeit" (principle of commitment to international law) cannot, on its own terms, determine the conditions upon which public international law is incorporated into the domestic legal sphere. The same applies to the subsequent question as to the conditions under which international treaty or customary law rules are directly applicable. From a German constitutional law perspective, the question of applicability of norms of public international law within the domestic legal sphere is, rather, a question governed by the principle of "offene Staatlichkeit" (principle of openness of the state towards international law). This is a fundamental principle underlying the German constitution which is also important for the final issue of whether and to what extent so-called 'treaty override' is constitutionally permissible.

This article examines the question to what extent the provisions of the Austrian Federal Constitution on the direct applicability of international treaties on the one hand and customary international law on the other can be regarded as "open" (or "friendly") towards public international law. The question can, in principle, be answered in the affirmative for both constellations, even if direct applicability is of greater practical importance for international treaty law. On closer examination, the specific Austrian instrument of the "reservation of (statutory) implementation" for international treaties also proves to be an instrument that is potentially "friendly" to international law. Consequently, it can be concluded that, with regard to the direct applicability of international law, the Austrian constitution is "relatively" open (or "friendly") towards public international law.