CYIL 2013

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.