PL EN


2005 | 2(164) | 5-31
Article title

GENERAL PRINCIPLES OF LAW IN 'ACQUIS COMMUNAUTAIRE' AND IN PUBLIC INTERNATIONAL LAW - THE MOST IMPORTANT RESEARCH QUESTIONS

Authors
Title variants
Languages of publication
PL
Abstracts
EN
General principles of law are considered to be a classic problem of public international law what is reflected in the literature of the subject. However, theoretical works do not find and neither do not analyze many important aspects included in the issue. In this context the following, more important research questions appear: (1) The position of general principles of law in systems of sources of internal and international law (excluding 'acquis communautaire') is not clear; (2) In theory there is concordance regarding the process of forming and obtaining binding force by general principles of law and of their relations with other sources of law; (3) Does the fact that states' constitutions very often omit general principles of law mean that they do not exist in these systems? (4) It can be supposed that even in 'acquis communautaire' (where principles have precisely described hierarchic position) discussed principles (which are on the lowest place in the hierarchy of sources of primary law) do not have to be applied while acts of higher order are created. In author's opinion: 1-The role of general principles of law exposed 'in acquis communautaire' and their impact on other sources of law as well as supremacy over national legal systems does not find wider reflection in universal, public international law; 2 -Both in the international and internal law a fact of breaking (offending) the general principles of law by legal acts or decisions (as well by the procedures of creation of law) does not impose their invalidity either ex lege or on the basis of complain; 3 - Art. 25 of the Fundamental Law (Constitution) of the Federal Republic of Germany is referred sometimes in the theory as contradictory to above affirmation, but it must be compared with contents of German constitutional law which doesn't provide any mechanism of ex lege respect for treaty international law rules in the internal legal order; 4 -Constitution for Europe may break or stop (profitable for binding force of public international law and for democratic harmonization of internal orders, deriving from 'acquis communautaire') tendency fortifying role and effectiveness of general principles of law. Concluding, one may state that general principles of law must constitute a decisive base of any legal order, as well as for its creative, functional, interactive and relative activities. Any legal order corresponding to its essential requirements must not only include general principles of law but also assure their high position in hierarchy of that system. It will be also profitable to introduce these postulates to public international law and to the Union law created by Treaty establishing Constitution for Europe.
Year
Issue
Pages
5-31
Physical description
Document type
ARTICLE
Contributors
author
  • J. Sozanski, Wyzsza Szkola Handlu i Prawa im. R. Lazarskiego w Warszawie, ul. Swieradowska 43, 02-662 Warszawa, Poland
References
Document Type
Publication order reference
Identifiers
CEJSH db identifier
06PLAAAA01202727
YADDA identifier
bwmeta1.element.58045771-e073-3bea-bc74-c32113522028
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