A Preemptive Strike against European Federalism: The Decision of the Bundesverfassungsgericht Concerning the Treaty of Lisbon.

Published on October 9, 2010        Author: 

Julian Arato is a J.D. candidate and Institute of International Law and Justice Scholar at the New York University School of Law .  His article on  Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences, 9 Law & Prac. Int’l Cts. & Tribs. (forthcoming 2010) is  available here.

Editor’s Note: Readers may be interested in previous EJIL:Talk commentary on the Lisbon Judgment discussed below. For pieces by Joseph Weiler see here  and here . See also Piet Eeckhout’s  “ The European Union and International Law Under the Treaty of Lisbon“. For analysis of the legal guarantees offered to Ireland to secure ratification of the Lisbon treaty, see Laurent Pech’s  ”The European Union’s Lisbon Treaty: Some Thoughts on the Irish Legal Guarantees“.

 On first reading the 2009 Lisbon case of the German Constitutional Court appears to hew quite closely to the Court’s reasoning in 1993, reviewing Germany’s accession to the Maastricht Treaty.  Both cases declare that European integration must respect the inviolable core of the German Constitution (Grundgesetz). (Specifically, in these cases, Article 20, entrenching democracy and the rule of law.  See Zitierung: BVerfG, 2 BvE 2/08 vom 30.6.2009, ¶233 [hereinafter Lisbon]; Decision concerning the Maastricht Treaty, 33 I.L.M. 388, 422 [hereinafter Maastricht]). In both cases the Court declares that under the Treaties it retains final say over whether European Law is compatible with the Grundgesetz and is thus applicable in Germany (judicial Kompetenz-Kompetenz).[i] Finally Lisbon, like Maastricht, finds that the Treaty ultimately passes constitutional muster. Thus, at first blush, the Court of Lisbon seems to basically restate its 1993 reasoning.  I want to argue, however, that the Court has substantially sharpened its challenge since Maastricht, elevating much of the Court’s earlier state-centric interpretation of the status of integration under the Treaties to a statement of German constitutional principle.

I will focus on three ways in which Lisbon represents an advance on Maastricht.  The Court announces: 1) that the Grundgesetz entrenches an absolute and unamendable limit on integration, that State sovereignty as such is inalienable, and thus forbids the delegation of excessive competences, especially Kompetenz-Kompetenz; 2) the Grundgesetz requires the German Constitutional Court to retain final review over the actions of German and European public authorities for possible alienation of, or encroachment on, German State sovereignty (judicial Kompetenz-Kompetenz); and 3) the Court goes about rigorously reviewing the Lisbon Treaty for infringements of German sovereignty in a far more searching manner than it had done in the past.  Leaving little to implication, the Court spells out the consequences of its decision: in the exceptional case where European institutions overstep their enumerated powers, even with the interpretive blessing of the ECJ, the German Court will exercise review and may instruct German authorities not to apply the European law, even if it means engaging Germany’s international state responsibility.

 1. Constitutional limits to integration: Germany must retain substantial competences.

            The rhetoric of Lisbon suggests that, like Maastricht, it concerns a democracy review on the model of Solange.  However, I want to suggest that Lisbon is really, at its core, about protecting state sovereignty in light of the expansion of competences at the Union level. In this regard, in 1993 the Court held only that under the Treaty of Maastricht, integration would not yet reach the point of a federal state.  In 2009 the Court went further, holding that full integration into a supranational federal state (federalization) would be in principle forbidden by the Constitution. Read the rest of this entry…

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Francis Lieber Prize

Published on October 8, 2010        Author: 

Nominations may now be made for the Francis Lieber Prize, awarded annually to an outstanding published (or to be published) work in the field of law and armed conflict by an author aged 35 years or younger at the time of submission.

The Francis Lieber Prize is awarded annually by the American Society of International Law’s Lieber Society on the Law of Armed Conflict to the author of an exceptional work in the field of law and armed conflict.

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At rest

Published on October 5, 2010        Author: 

Shabtai Rosenne, who died in Jerusalem on 21 September 2010 aged 93, was one of the last of the generation of distinguished international lawyers who studied before or during the early years of World War II.  I can only think of two remaining survivors in the English-speaking world—Benjamin Ferencz and Leslie Green.  This is a club which even Sir Eli Lauterpacht is far too young to join.  While Benjamin Ferencz and Leslie Green were both involved in war crimes trials after the war, Ferencz at Nuremberg and Green in India, Rosenne became instrumental in the legal construction of Israel.

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Is China Changing its View of International Tribunals?

Published on October 4, 2010        Author: 

Last month the new Chinese Judge at the International Court of Justice (ICJ), Judge Xue Hanqin, was sworn in and took her seat on the ICJ bench. One remarkable but perhaps little known fact about Judge Hanqin is that she is the only person ever to have presented oral argument on behalf of the People’s Republic of China in an ICJ case. She was counsel for China in the recent Kosovo advisory proceedings and appeared before the Court in the oral hearings held in December 2009 (see here). That was a significant moment  for international law as it was the first time that the People’s Republic of China had chosen to take part in ICJ proceedings. Moreover, it may be that the moment is part of a shift in China’s attitude towards international tribunals. This year, China also chose to take part in the first ever advisory proceedings before the International Tribunal for the Law of the Sea (ITLOS). In the proceedings before ITLOS regarding the   Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area , China submitted a written statement and argued that the Court ought to exercise its jurisdiction in the proceedings.

Since the communist takeover of China, the country has not been particularly enthusiastic about submitting itself and/or disputes involving it to the jurisdiction of international tribunals. This coolness even extended to advisory opinions. The Republic of China (under the previous nationalist government)  had submitted written statements to the Court in the first two advisory proceedings before the International Court of Justice (the Conditions for Admission Case 1948 and the Reparations for Injuries case 1949) though it did not take part in the oral hearings. But we now see a change at least with respect to advisory opinions. It is not clear why the Chinese government decided to appear before the ICJ in the Kosovo advisory proceedings. Read the rest of this entry…

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Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Published on October 1, 2010        Author: 

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position. Read the rest of this entry…

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Misadventures in Subjecthood

Published on September 29, 2010        Author: 

Professor José Alvarez is Herbert and Rose Rubin Professor of International Law at New York University School of Law and Special Adviser on Public International Law, Office of the Prosecutor, International Criminal Court. He is the immediate past President of the American Society of International Law

Editor’s Note: This piece is cross posted from where Professor Alvarez is guest blogging this week. We are delighted to have Professor Alvarez on EJIL:Talk! and would recommend that readers view his other posts on Opinio Juris

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Read the rest of this entry…

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Technical Problems

Published on September 27, 2010        Author: 

We experienced some technical difficulties yesterday, due to which the blog was inaccessible for the whole day. Our apologies to the readers.

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ESIL Research Forum in Tallinn, Estonia in May 2011

Published on September 20, 2010        Author: 

After the excellent recent conference in Cambridge, the next event of the European Society of International Law will be the 4th ESIL Research Forum, to be held on 27-28 May 2011 in Tallinn, Estonia. The call for papers is here. The deadline for the submission of abstracts for the forum’s 15 panels is 15 December 2010, while the selection will be made in January 2011. A further selection of the papers presented will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff). A limited number of scholarships to cover travel costs will also be available.

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The Hamburg Tribunal Heats Up? Is ITLOS now in Business?

Published on September 15, 2010        Author: 

The International Tribunal for the Law of the Sea (ITLOS), which is based in Hamburg, is holding hearings this week in  advisory proceedings before that Tribunal. The case concerns Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area  and the request for the advisory opinion was submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority. The request represents the first advisory proceedings before ITLOS and the first case before the Seabed Disputes Chamber. The oral proceedings are the first before ITLOS in 3 years (the last being in 2007 and the last one before that was in 2004)!

In 1991, Keith Highet who argued many cases before the International Court of Justice wrote a brief comment in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) noting how the ICJ had become busier than ever in the years immediately following the Court’s judgment in Nicaragua case. The title of this piece is adapted from his piece (The Peace Palace Heats Up: The World Court in Business Again?). The situation that in ITLOS today is no where near the same as that in the ICJ in the early 1990s but I simply wish to note that having been in the doldrums for much of its existence since it was set up in 1996. The Tribunal was created by the UN Convention on the Law of the Sea (UNCLOS) as one (of a number of means) of settling disputes under the UNCLOS. Except in one respect, it has not received much attention from potential users and very few cases have been referred to it. However, at this point in time there are 2 cases on the docket of ITLOS!! Apart from the advisory proceedings there is also a contentious case on its docket. This is the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal submitted to the tribunal in December 2009. Two cases is not much cause for celebration but these are two cases received less than 6 months apart. Is the Tribunal now in business?

Apart from requests for provisional measures and request for prompt release of vessels (the latter is the one respect in which ITLOS has received some attention from users), ITLOS has only previously had one case submitted to it on the merits. This was the Saiga Case (St Vincent and the Grenadines v. Guinea) submitted to ITLOS in 1998. I had just started out as a full time academic at the University of Nottingham and I acted as an adviser and assistant to Richard Plender QC who was counsel to St Vincent. I was involved in drafting some of the submissions to the tribunal and never imagined that ITLOS would not hold oral hearings on the merits of a dispute for another decade!  In that time, there has been no shortage of law of the sea disputes.

The dispute settlement provisions of UNCLOS (Part XV) provides for compulsory adjudication but gives parties a choice of procedures. The default choice (i.e the option to be pursued where no specific choice is made or where parties have chosen different procedures) is international abitration but parties may also use the International Court of Justice or ITLOS. Although more States have chosen ITLOS than any other option, States have refrained from referring  law of the sea disputes to ITLOS. I think that there have been 6 arbitrations initiated under UNCLOS, including an arbitration between Bangladesh and India initiated at the same time as the ITLOS proceedings before Bangladesh and Myanmar. There have also law of the sea cases before the ICJ in the period since ITLOS was created. Failure to refer cases to ITLOS suggests that States perceive disadvantages with that Tribunal when compared with the alternatives. Perhaps its biggest disadvantage is that it is untried and untested. States have some idea what they will get with the ICJ. With arbitration states pick the arbitrators and have some control over the process and this may give some comfort to States. Whether ITLOS continues to generate business might well depend on how it is perceived as performing in the 2 cases currently on its docket.

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Questioning the Statehood of the Vatican

Published on September 15, 2010        Author: 

The Pope will begin a State visit to the UK on Thursday Sept 16. In anticipation of this event, some are using the occasion to highlight the tragedy concerning the sexual abuse of children by catholic priests around the world and the failure of the catholic church to deal with this scandal appropriately. As was discussed on this blog earlier this year there were calls for the Pope to be arrested on his visit to Britain and to be tried at the International Criminal Court for crimes against humanity. As Marko and I pointed out the time, there are two significant obstacles to such a prosecution: (i) the Pope is a serving head of State with immunity from arrest and prosecution in other States (see my earlier post) ; and (ii) it would be difficult to argue that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute (see Marko’s post).

Those leading the charge in the calls for the prosecution of the Pope and in the more general campaign against the Papal visit include Geoffrey Robertson QC, a leading English barrister who was a Judge at the Special Court for Sierra Leone and Oxford Professor Richard Dawkins. A central part of that campaign is now a call for non-recognition of the Statehood of the Vatican. It seems that this non-recognition is regarded by the campaigners as important at two levels.

First of all, if the Vatican is not regarded as a State then both the Vatican and the Pope will be open to proceedings in national courts around the world. This is becaue both the Pope and the Vatican will lose the immunity international law accords to States and their serving heads of State. Geoffrey Roberston is the champion of this strategy. He has a recent article in the New Statesman in which he continues to argue against the Statehood of the Vatican. While reognising the widespread international recognition of the Vatican he says:

“that the Holy See is capable of having diplomatic relations with other states does not necessarily prove that it is a state itself, andsome international lawyers have pointed out that it lacks people, territory and other qualifications necessary to be judged objectively as a state in international law. If they are right, the Pope would not be “head” of a state and could be sued for the negligence in relation to the traffic in paedophile priests, which happened on his watch over the 24 years when he ran the CDF.”

I don’t know which international lawyers he is referring to but Robertson’s arguments about how Statehood is created are erroneous. The Vatican fulfills the criteria for Statehood in international law (despite its tiny size) and this is the view of leading international lawyers. I refer readers back to my earlier post where I deal with the arguments.

Dawkins appears to have taken a different tack. He no longer argues that the Vatican is not a State but now seems to argue that the Vatican should be derecognised and its Statehood somehow taken away. Read the rest of this entry…

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