Germany’s Highest Court Rejects Sanchez-Llamas; Incorporates Obligation to Follow ICJ Interpretations

by Julian Ku

Last summer, the U.S. Supreme Court decided Sanchez-Llamas v. Oregon, which resulted in the U.S. Supreme Court refusing to follow an ICJ treaty interpretation, even though the ICJ had compulsory jurisdiction to interpret that treaty. A few months later, Germany’s highest constitutional court (the Bundesverfassungsgericht) resolved a similar conflict between domestic and ICJ interpretations by following the ICJ. The decision can be found here in German. For those of us who don’t speak German, Jana Gogolin (an LLM student at Duke Law) has a useful discussion in the German Law Journal here. I haven’t read it fully enough to discuss the decision, but here is a key summary.

. . .In a decision of 19 September 2006, [the German Constitutional Court] held that German Courts are under a constitutional obligation to take into account the interpretation of the competent international courts in regards to treaties. This obligation is only limited by the Constitution, e.g. by a violation of Basic Rights or an exceeding of its powers.

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