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PAVEL ŠTURMA
CYIL 4 ȍ2013Ȏ
law, the Federal Constitutional Court has a monopoly on the qualification of
customary international law for purposes of its application in Germany. Ordinary
courts are supposed to turn to it with a query in the case of serious doubts. Should
this not be performed, the individual has the right to complain to the Constitutional
Court on the basis of a breach of his right to a legal judge. The Federal Constitutional
Court has a double role, which consists not only in the application but also the
identification of customary rules. Thus it commented, for example, on the issue
of the rights of foreigners, expropriation, use of emergency status in the relation
between a state and investor, international humanitarian law, international criminal
law and universal jurisdiction.
Finally,
Bernard Stirn
dealt with customary international law from the point
of view of the French courts. The constitutional framework in France does not
explicitly mention custom – only the Preamble of the Constitution of 1946 states
that the French Republic adheres to the rules of public international law, but Art. 55
of the Constitution deals only with ratified international treaties. With respect to
custom there were doubts for a long time about its effects in internal law, which was
changed by the Council of State in the matter of
Aquarone
(1997) and
Saleh
(2011).
Nonetheless the place of international custom in the hierarchy of norms is separate
from treaties, so that it is able to have precedence over administrative acts, but not
over law.
The reviewed publication, in spite of its small size, is a very high quality, current and
precise source of information and ideas on the complex questions of the identification
and application of international custom. It can be recommended to all theoreticians
and practitioners who think about the role of international custom.
Pavel Šturma
1
1
Prof. JUDr. Pavel Šturma, DrSc
., is Head of the Department of International Law and Vice-Dean of
the Faculty of Law, Charles University in Prague, senior research fellow at the Institute of Law of the
Czech Academy of Sciences and President of the Czech Society of International Law.