Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume IIIVarious
History
Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III
Various
Nuremberg Trial of Major German War Criminals, Nuremberg, Germany, 1945-1946; War crime trials -- Germany -- Nuremberg
Summarizing, that means the individual state is placed under an
obligation by international law to arrange its own order by legislation
in such a manner that the authorities in their decisions work in such
a way as is demanded by international law. In [legal] science, that
is called--the state is under an obligation to organize its law in
accordance with international law. How can that be done?
There are several methods available. The legislator can, from case to
case in his own system, amend those provisions which need changing
so as to comply with international law. He does not need to mention
international law at all in doing so. That is the way states proceed
again and again. A different method is the one which is called the
method of transformation. That is, the legislator does not trouble to
bring into line the law of his country, word by word, and paragraph by
paragraph, with international law, but he tells his official agencies,
“Consider the norm of international law which in itself only binds me,
as if I had cast it into a law.”
That method, which in German we also call “Recasting” [Umgiessung], can
be applied specifically or generally. That is to say, the legislator,
as soon as he has to consider a new treaty under international law, can
recast that treaty or he gives general instructions for the application
of the international law which is valid in the particular case. Both
methods have been used among states.
Concerning this method of transformation, a difficult problem arises.
In all states which have laws of different rank, as in the German
Reich under the Weimar constitution--that is to say, either laws
which have the validity of the constitutional laws, or ordinary
laws--the legislator has to ask himself whether he intends to apply
the recast international law to the highest group or not. Under the
Weimar constitution, for example, it was indisputable that the recast
international law had merely the position of an ordinary law. There
might even be a state which would place the recast international
law above constitutional law. What do we need that for? Every
official agency in every state finds itself in the situation where
it is confronted with several laws of its own state which appear to
contradict one another, or in fact do contradict one another, which,
however, all claim validity. I need not tell you jurists that since
the days of Roman law everywhere norms have developed concerning the
elimination of such conditions; where state laws have varying status,
further norms of collision have been constituted. If a state would have
a general norm under which international law takes precedence over all
domestic law, that would be the greatest safeguard which is possible
at all, that the law of the country is handled in accordance with
international law. I do not know whether there is such a state. The
German Reich at any rate was not one of those states. I think with this
background I can now answer your question.
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