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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…


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…


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…