Schlagwort: human rights law

Gazing at Europe: The Epistemic Authority of the MPIL

For the general international lawyer, neither specialized in EU law nor in European human rights law (never mind German public law), the assignment to discuss what the Max Planck Institute for Comparative Public Law and International Law (MPIL) has done for EU law, European human rights law and German public law assumes impossible dimensions: one might (almost) as well have asked me what the influence of NASA on the development of the US military has been. Plus, it is tempting to refer to the wise, if possibly apocryphal, words of Zhou En Lai when asked about the effects of the French revolution: it might be too early to tell… And yet, on closer scrutiny (and a different level of abstraction), it becomes plausible to sketch some contours, whether deriving from training, practical involvement, or theorizing.

It is generally acknowledged that the center of gravity of the MPIL has always rested with general international law; indeed, the appointment, in 2002, of Armin von Bogdandy as one of the directors, with a background more pronounced in both EU law and international trade law, may have raised a few eyebrows at the time. That is not to say no forays had been made into EU law and especially European human rights law: previous directors Rudolf Bernhardt and Jochen Frowein can justifiably claim to have been among the pioneers in that field. But even so, the MPIL was always more about international law than about EU law or even human rights law, all the more so once those disciplines started the slow separation process from international law. If in the 1960s it still made sense to view EU law as part of international law, by the late 1980s this had become considerably less plausible, and much the same applies, with a little time lag perhaps, to European human rights law. Others on this blog have indicated that, e.g., the ‘black series’ (Schwarze Reihe) of MPIL monographs and collective volumes, hugely impressive as it is, contains relatively little on both EU law and European human rights law, and much the same applies to the annals of the Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht).

Some Reproduction, Some Socialization

As far as training goes, large numbers of German public lawyers, EU lawyers and international lawyers must have passed through the MPIL at one stage of their career or another, either for a shorter stay or for a period of several years as research fellow. Having sometimes addressed some of them en groupe, it is reasonable to conclude that the best of them (in terms of professional skills) are very, very good indeed. There was a time – and perhaps there still is – when the external relations section of the EU’s legal service was staffed with many MPIL alumni; and personal experience suggests that rarely a group of lawyers can have had such a critical mass within an institution. By the same token, many German Foreign Office lawyers must have passed through MPIL, and many of the current generation of established German international law professors have spent considerable periods of time as well: think only of Jochen von Bernstorff, Isabel Feichtner, Matthias Goldmann, Nele Matz‑Lück, or Andreas Zimmermann – and I am probably omitting many more from the list than I should in polite company.

It is too easy to suggest that having passed through MPIL, these individuals transmit MPIL values and methods and ways of thinking on to the next generation (in the case of the professors) or to their colleagues (in the case of the civil servants – the distinction is blurry to begin with). On the other hand, it would also be far too easy to suggest that no transmission of values, methods and ways of thinking takes place; a strong case can made for legal education (and this includes doctoral and post‑doctoral training) as a process of socialization, where pupils first sit at their master’s feet and then become masters having their pupils themselves. Reproduction will rarely be total, but some reproduction, some socialization, will be present, all the more so when the training is high‑level.

And this is not limited to Germans working in Germany alone. MPIL alumni spend time in international organizations; those who come from abroad may end up working for their home governments, and some successful German international law academics based outside Germany have a strong background in the MPIL: think of Jutta Brunnée in Toronto, Nico Krisch in Geneva, or Ingo Venzke and Stephan Schill in Amsterdam – and again I am likely missing more than a few. In other words, in much the same way as the Chicago School of Economics has been (or still is) a training ground for economists worldwide, and Harvard Law School can credibly be seen as a global finishing school for legal practice (something the same school tries to emulate for a certain class of academics through its Institute for Global Law and Policy), so too has the MPIL delivered generations of international lawyers; therewith, it exercises considerable epistemic authority.

Rudolf Bernhardt as a Judge at the ECHR[1]

Such epistemic authority has also been exercised (and is still exercised) through involvement in practice. At least three of the German judges on the International Court of Justice over the last 60 years or so have spent a considerable period of time at the MPIL: Hermann Mosler (even as a director), Carl‑August Fleischhauer, and the current German judge, Georg Nolte. Hans‑Peter Kaul, another MPIL alumnus, was one of the judges at the International Criminal Court (which he helped create as well). Rüdiger Wolfrum, for two decades or so director of the MPIL, has spent many years at the International Tribunal for the Law of the Sea and helped arbitrate a handful of disputes before the Permanent Court of Arbitration, while two other erstwhile directors (Bernhardt and Frowein) were members of the (now defunct) European Commission on Human Rights. More recently, Angelika Nussberger has been a judge at the European Court of Human Rights, while current director Anne Peters has been a member of the Council of Europe’s Venice Commission, tasked with promoting and evaluating the rule of law in the Council’s member states. Tongue‑in‑cheek it may be added that the other current director, Armin von Bogdandy, has served as the President of the OECD’s Nuclear Energy Tribunal, although this Tribunal, like some others in the international sphere, has yet to receive any cases.

Thinking and Re-Thinking International Law – and Europe’s Public Order

But perhaps the most obvious form epistemic authority can take, with academic institutions, is the thinking and re‑thinking of what goes on in the world. German legal scholarship is traditionally very good at this, but within the German tradition, the MPIL still stands out. Anne Peters has done much (in particular before her tenure at the MPIL commenced) to re‑think the global order as a constitutional legal order, more or less continuing the tradition going back at least to Hermann Mosler. Mosler famously imagined international society as a legal society, rather than, as was common when he wrote, as a fairly random collection of billiard balls, bound together by not much more than self‑interest and balances of power or, at best, by a shared sense of anarchy. And it is hardly an exaggeration to claim that Peters during her tenure has done much to re‑position the individual in the international legal order and has almost single‑handedly created a novel sub‑discipline within international law, in the form of animal law.

For his part, Armin von Bogdandy is responsible not only for guiding a re‑conceptualization of the field of international organizations law concentrating on the exercise of public authority on the international level, but also, more appropriate to the current assignment, for systematizing ideas about Europe’s public order and for identifying principles of European constitutional law.

Perhaps the main work to be referred to here is the monumental Principles of European Constitutional Law (co-edited with Jürgen Bast), conceived when the Treaty establishing a Constitution for Europe was on the agenda but outliving that particular event: the principles identified – and more broadly the field of European constitutional law – do not require a particular constitutional document to retain their validity. One point to note though is that, being principles of constitutional law, they pertain more to the relationship between the EU and both its citizens and its member states, than to other matters. These constitutional principles include equal liberty, the rule of law, democracy, and solidarity, as well as principles of Union unity, respect for diversity among the member states, and the wonderful (and wonderfully intriguing) principle of Gemeinschaftstreue. The list is persusasive, and derives from a number of sources, including the case‑law of the Court of Justice of the European Union (CJEU).

Arguably though, not unlike a Rubik’s cube, a constitutional order has other sides as well. This has become considerably clearer after the book first saw the light, with the CJEU making much of a principle of autonomy in a case such as Achmea. And as autonomy is always a relational notion, the autonomy here is not so much autonomy vis‑à‑vis the member states, but rather the autonomy of EU law (its legal order) vis‑à‑vis competing legal orders.

Be that as it may, and despite the circumstance that such exercises always have a relatively high von‑Münchausen‑quality (a system pulling itself up by its own hair, so to speak), thinking of the EU in terms of constitutional principles was rather novel at the time, and has stood the test of time, at least thus far: the principles identified seem to have become generally accepted as such in the intervening two decades – and that marks quite an achievement.

Great Epistemic Power, Great Epistemic Responsibility

Armin von Bogdandy at the Max-Planck-Tag 2018[2]

So, it seems clear that MPIL exercises considerable epistemic authority: through training, through legal practice, through its research work. There is (ironically perhaps) always a price to pay: epistemic authority is rarely legitimated by considerations of democracy or the Rule of Law; instead, it takes place when democracy proves inert, or paralyzed, or disinterested. And of course some things cannot be democratically decided on to begin with: one cannot meaningfully legislate a ‘principle of solidarity’, e.g., or perhaps even ‘legislate’ principles to begin with. It may be possible to enact rules embodying solidarity, but principles are generally too evasive to be legislated. And this, in turn, suggests that much comes to depend on the individuals exercising epistemic authority: with great epistemic power comes great epistemic responsibility, to paraphrase an old maxim.

Even so, things could hardly be otherwise. An institution such as the MPIL is bound to exercise epistemic authority, whether it wants to or not. Bringing excellent scholars together, training them, sending them out in the world, participating in governance, and re‑thinking the law and legal orders: how could this, if done properly (or even improperly) not be authoritative? It may well be that the contribution of MPIL to international law has been more obvious than its contribution to EU law or European human rights law, but gazing at Europe nonetheless reveals something to reflect upon.

[1] Photo: ECHR.

[2] Photo: MPIL.

 

On the very Idea of Transnational Constitutional Law

Both an international human rights regime, such as the European Convention system, and supranational Union law have given rise to what I would like to characterize as transnational constitutional law, narrowly and properly understood. In contrast to the more sweeping use of this concept that refers to all legal phenomena having some cross-border dimension, transnational constitutional law, narrowly and properly understood, denotes law that originates from convergence that is neither truly customary nor conventional in nature. It is constitutional law as to its substantive impact, for it amends, or at least claims to amend, existing constitutional law in either the domestic or the supranational sphere.

Following Cassese’s apt characterization of common constitutional traditions, transnational constitutional law represents “higher law made of lower law”. In the case of human rights law, we encounter this in various assertions on the part of the ECtHRs that there exists or has emerged “consensus” among the participating states. This consensus affects the unyielding scope of fundamental rights and therefore alters, restricts, or even eradicates the “margin of appreciation”. In the context of EU law, by contrast, transnational constitutional law speaks to us mostly in the form of “common constitutional traditions”. The scope of these traditions is, of course, an open question. Given that an appeal to them has played an important role in fundamental rights law, it may make sense to restrict them to this field. At the same time, at least the wording of Article 6(3) TEU suggests that fundamental rights may merely be one manifestation of this source and that they may well be of relevance to other general principles of EU law, too. It is a different matter, which I nonetheless would still like to address briefly, whether Article 2 TEU is also a manifestation of transnational constitutional law, for it can be read in at least two different ways. The first suggests that the values expressed in Article 2 are the Union’s values regardless of whether they are in fact shared by the Member States. Article 2 demands, however, that they be common to all Member States. Alternatively, according to a second reading, the values are contributions made by the liberal democracies constituting the Union and can thus be regarded as a commitment that they also have in common outside of it. This path-dependence would imply that their meaning and significance has to be determined with an eye to what the Member States endorse in their constitutional traditions. The values of Article 2 would thus also represent “higher law, made of lower law”, whereas “higher” in this case means supranational law. But even if one followed the first reading, according to which the values in Article 2 are “autonomous” Union law, the fact that Article 2 states that they are also shared suggests that their substance is best fleshed out, as a matter of interpretation, with an eye to what Member States practice in the name of democracy, the rule of law, and human rights. It must therefore remain essential, from the Union’s perspective, that the Member States converge on a certain minimum level. Otherwise, the common values would be cast asunder or diluted to a level at which they became entirely hollow. Even Ziobro’s system would then pass muster as a system of judical independence.

If transnational constitutional law in this narrow and proper understanding is higher law made of lower law, then what is puzzling about it is how lower law can attain such a jurigenerative power. Two conditions appear to be salient in this context. The first condition is convergence. In the case of “consensus”, what is of relevance is national legislation that is seen to lend expression to what the participating states regard as demanded by, or at least consistent with, convention rights. In the case of “common constitutional traditions” it is national constitutional law that gives rise—somehow—to supranational law. The “somehow” of its origin points to the second condition. Transnational constitutional law requires a court to recognize its existence. It would not be relevant without such recognition.

In both its international and supranational instantiations, transnational constitutional law is tarnished with a high degree of indeterminacy. It concerns the number of converging states required to give rise to constitutional amendments as well as the substance of the amended norms. For this reason, any assertion of transnational constitutional law by an adjudicating body must raise the specter of an encroachment from above. This explains why transnational constitutional law is surrounded by a ring of contestability.

The objections that can be relevantly made vis-à-vis assertions of its existence are different from the protests voiced by objectors who merely assert their persistent lack of consent to an alleged rule of customary law. The objections have to be grounded in more than mere freedom of choice, as it were, which means that withholding consent alone is not sufficient to undergird doubts concerning its existence.

More precisely, these grounds can be either internal or external.

They are internal when courts (or even scholars) located in national jurisdictions—usually constitutional courts—challenge the facts necessary for the existence of consensus or communality. They inveigh against the application of conditions that, at the end of the day, remain more or less indeterminate in any event. But they claim to apply the same murky assertability conditions, however, they claim to do so with greater accuracy than the international tribunal.

The contestation is external when it does not submit the finding of a consensus to an internal critique, but when it rejects a rule or a principle on the grounds of being incompatible with non-negotiable elements of the national constitutional system (its “essentials” or “identity”).

A classical instance of an internal contestation in the human rights context is the Hirst case, in which UK representatives objected to the assertion of consensus. In the same context, external challenges, subtly and suitably articulated by the Federal Constitutional Court, can range from the demand that compliance with international human rights jurisprudence may require careful adjustments all the way down to appeals to unyielding national constitutional identity. The Russian, when Russia was still a member of the Council of Europe, and Eastern European Courts have become champions of such “principled resistance”.

In the context of EU law, internal contestation concerns, again, alleged flaws in the assertion of a constitutional traditions. The Mangold case comes to mind. The anticipation or external contestation is epitomized possibly by the Omega Spielhallen case in which the European Court of Justice all of a sudden appropriated human dignity for Union law in order to avoid the impending collision with the German constitutional system.

Remarkably, however, the Union system repeats itself, in the case of common constitutional traditions, on its more general features, which is also relevant outside an assertion of transnational constitutional law. Namely, that it exists de facto under Solange or controlimiti conditions. The authority of the Union is, despite being founded on international agreements, subject to conditional yielding. This is true not only in the realm of fundamental rights, but also of supranational authority in general, not least with an eye to identity challenges. If I am not mistaken, the European Court of Justice has not yet been amenable to such challenges (we have Simmenthal, after all).

As a result, any assertion of transnational constitutional law has to face up to two countervailing principles. One is the principle of contestability. This principle is indispensable, for if not, the inter- or supranational court would be free to assert what it wants. It would otherwise by subterfuge acquire sovereign authority. The other principle is that of conditional yielding. If this latter principle becomes generalized—as was done over the last few years at this institute with the development of reverse and horizontal Solange—it gives effect to a mutual pledge to sustain liberal democracies in Europe. This, at any rate, is the new story that can be told about European integration in the wake of what von Bodgandy calls the “second saddle period” of European integration.

Transnational constitutional law is vertical. It is asserted from “above” and seeks to constrain those located below. Owing to contestability and its cognate principle of conditional yielding, however, the horizontal dimension is never fully absorbed. Rather, it can be activated in a pluralist context, that is, in a context where there is no final authority to assert what is right for all. All assertions of that kind remain system-relative. Collisions require dialogue and compromise for their resolution, and this may well involve a protracted process of adjudication in the spirit of comity. At the end of the day, Europe’s constitution is political, in the sense articulated by John Griffith. The constitution is “what happens”. Europe’s constitution is in and of itself historical.

Today, I have given you an introduction to the topic. I am confident, however, that exploring the form of this type of law would provide us with valuable insights into the pluralism of European Union law.