Schlagwort: Menschenrechte

An “Almost Impossible Mission”: MPIL Director Jochen Abr. Frowein and the “EU Sanctions Against Austria” in 2000

19. April 2024
Constanze Jeitler
Kommentare 1

In the summer of 2000, the Max Planck Institute for Comparative Public Law and International Law (MPIL) was at the centre of European legal debates and Austrian media attention: The institute’s director Jochen Abr. Frowein had been nominated alongside Martti Ahtisaari and Marcelino Oreja as one of the so-called three Wise Men to evaluate the fourteen EU member states “measures against the Austrian government”. The question at the heart of this European affair – how should the union monitor and sanction a member state in violation of shared European values? – was posed at a critical moment in the EU history and concerns us until today.

Introduction

In late August 2000, journalists outnumbered researchers and students at 535 Neuenheimer Feld in Heidelberg. On this cool summer day, director Jochen Abr. Frowein was not amused about the media frenzy at the MPIL as he made his way through a jungle of cameras for a meeting with former Finnish president Martti Ahtisaari and former European Commissioner Marcelino Oreja.[1] These three “Wise Men” had been nominated earlier in the summer by Luzius Wildhaber, the president of the European Court of Human Rights to investigate “the Austrian Government’s obligations to the European values, in particular in regard to the rights of minorities, refugees and immigrants,” and “the development of the political nature of the FPÖ.”[2]

This mission was the final chapter in the struggle over the so-called “EU sanctions against Austria” between the Vienna government and the fourteen member states of the EU (EU‑14). These diplomatic and bilateral measures had been imposed after the far‑right Freiheitliche Partei Österreichs (Freedom Party of Austria, FPÖ) had entered a government coalition with the conservative Österreichische Volkspartei (Austrian People’s Party, ÖVP) in February 2000. The sanctions reduced diplomatic relations to a technical level and at EU summits, ministers refused to shake hands or pose for photos with their Austrian counterparts. Some statements related to the sanctions bordered on the bizarre: For example, Belgian Foreign Minister Louis Michel called on Belgians to cancel their winter vacation Austrian as he considered skiing in Austria “immoral” in the current situation (he later apologized for this statement).[3] Thus, the measures were neither actual political or economic sanctions nor had they been imposed by the European Union. As symbolic gestures, they expressed the concerns of the EU‑14 over a far‑right party joining a national government as a result of the surge of xenophobia, racism, and right-wing populism across Europe after the end of the Cold War. The Austrian government rejected the “sanctions”, arguing that they represented a violation of the “fundamental legal principles and the spirit of the European treaties”.[4]

The “sanctions” coincided with a critical moment in the history of European integration: Since the late 1980s, the EU had assumed a role as protector and promoter of human rights, democracy, and the rule of law. These common European values played a crucial role in transforming the union from an economic into a political one. Simultaneously, institutional reform was underway to enable the accession of new member states from Central and Eastern Europe. At this watershed and for the first time in EU history, the “sanctions” called into question the formation of a national government by citing potential violations of common European values. This conflict between the EU‑14 and the Austrian government has become ingrained in institutional memory as it accelerated the introduction of a specific mechanism for sanctioning. At the same time, this historical episode continues to paralyze the EU when it comes to handling violations of its fundamental values in a member state.[5] As such, the “sanctions” have served as a cautionary tale for the EU for two reasons: First, they created an opportunity for the controversial Austrian government to increase its popularity by claiming that foreign powers were trying to undermine the outcome of a democratic election. While only 53,82 percent of the electorate had voted for ÖVP and FPÖ in the previous election, polls showed that a vast majority of voters opposed the “sanctions” – which were perceived as an unjust stigmatization of the country’s population as “Nazis” – and supported the resistance of the new government.[6] Second, the “sanctions” were imposed without any conditions for their abolition and it had thus to be assumed that only the collapse of the government would end them.[7] After months of deadlock, the Austrian government threatened to block further institutional reform in the EU, legitimized by a popular referendum (Volksbefragung) in Austria on “the further development of EU law”.[8] Simultaneously, the European Commission and the European Parliament had urged the EU‑14 to re‑evaluate the measures and find a solution acceptable to all sides.[9]

Finally, the Portuguese Council Presidency asked the president of the European Court on Human Rights, Luzius Wildhaber, to appoint “three personalities” to deliver a report on the Austrian government’s “commitment to the European values” and the “political nature of the FPÖ” at the end of June.[10] The social democrat Ahtisaari and the conservative Oreja were appointed due to their long careers in politics and diplomacy, in particular concerning international law and human rights. Meanwhile, Frowein was chosen based on his excellent reputation for his work at the intersection of theory and practice of international law and human rights, especially through his long‑standing membership of the European Commission for Human Rights from 1973 to 1993.[11] During his academic career, Frowein made significant contributions to the study of the prohibition of the use of force under international law, the right to self‑defense, and the protection of human rights at the local and universal level, e.g.  on the freedoms of expression, assembly, and religion, as well as the prohibition of discrimination and asylum law.[12]

The Wise Men in Vienna

Following a preliminary meeting in Helsinki on 20 July, Frowein, Ahtisaari, and Oreja re-convened in Vienna for their “almost impossible mission” of putting “an entire country under scrutiny.[13] Frowein was the first to arrive in Vienna on a rainy 27 July. A small crowd of journalists and protesters welcomed the MPIL director on Vienna’s Ringstraße in front of the noble Hotel Imperial.[14] The next day, the Wise Men began their “intensive program” of meetings with Austrian officials to discuss the commitment of the Austrian government to common European values.[15] No minor detail about the delicate mission – e.g. the traditional Austrian dishes served at the lunch with chancellor Schüssel (Rindssuppe, Tafelspitz, Topfennockerl) – went unnoticed by the Austrian media, as Frowein, Ahtisaari, and Oreja gave journalists very little to report as they “appeared unnoticed” on the scene, “remained eloquently silent” in front of the journalists” and “disappeared again quickly”.[16] While the media soon grew frustrated with the trio, the interlocutors were “extremely impressed” by their “meticulous preparation”.[17]

The MPIL’s very own “Jörgi-Bär” [19]

While the Wise Men met with the FPÖ leadership at the time to assess the “political nature” of their party, they did not meet with the man often considered solely responsible for the party’s success: Jörg Haider was a controversial and charismatic figure in Austrian politics whose recipe for success consisted of combining far-right poliicy with populist rhetoric. However, by the summer of 2000, Haider was, according to his own description, only a “simple party member” as he had stepped down as party leader to appease domestic and international criticism of the ÖVP-FPÖ coalition. Nevertheless, the FPÖ made sure that the Wise Men received a symbolic effigy of their figurehead: A  so-called “Jörgi-Bär”, a small stuffed teddy bear the FPÖ had handed out as a giveaway in the previous election campaign, was sent to Heidelberg by the party as part of an information package. Until today, this small teddy bear can be found in the MPIL’s archive. The Austrian daily Der Standard cynically remarked that this was nothing but a “cuddle attack” on the Wise Men by the FPÖ to trivialize their extreme agenda.[18]

The Wise Men in Heidelberg and the Final Report

One month later, the trio reconvened at the seat of Frowein’s Institute to hold additional meetings and to finalize their report. More than twenty representatives of Austrian civil society flocked to the MPIL in Heidelberg. Opposition parties and NGOs criticized that the trio had only met with government officials during their visit to Vienna. The human rights organization SOS Mitmensch had asked for a meeting with Frowein specifically as they considered him to be “especially sensitive” to their concerns about the recent surge of racism and xenophobia in Austria.[20] Frowein, Ahtisaari, and Oreja “pricked up their ears” as the civil society representatives reported on the radicalization of the political climate since the FPÖ had joined the coalition.[21] After their final meeting with vice‑chancellor and FPÖ leader Susanne Riess‑Passer, the trio had “enough material to fill a library”. [22] Martti Ahtisaari mused that he would not mind if finishing the report would take a little longer and his stay at the MPIL would be extended as he had not been to Heidelberg since 1985.[23]

On 8 September 2000,  Frowein, Ahtisaari, and Oreja traveled to Paris to meet with President Jacques Chirac who was heading the French Council Presidency. Unlike their biblical eponyms, these Wise Men did not bring gold, frankincense, and myrrh but their Report on the Austrian Government’s Commitment to the Common European Values, in Particular concerning the Rights of Minorities, Refugees and Immigrants, and the Evolution of the Political Nature of the FPÖ[24]. The ceremonial handover in the Élysée Palace was disturbed by a “diplomatic scandal” characteristic of the early internet age: The Spanish daily El País leaked the report before Chirac received it.[25] After Chirac had received the report, it was made available to the general public on the MPIL’s website, which had been introduced in 1996 (for more on the digital transformation at the institute see the contribution by Annika Knauer on this blog).[26]

The beginnings of the Internet: Jochen Frowein on the news portal “Paperball” (Photo: MPIL)

The report found that the new Austrian government was committed to common European values. Its “respect in particular for the rights of minorities, refugees and immigrants is not inferior” and could even be considered higher than in other EU member states.[27] Furthermore, the report assessed that the Austrian government had taken steps to combat historical revisionism, discrimination, and prejudice. Regarding the “political nature of the FPÖ”, the trio voiced stronger concerns as they characterized it as a “right‑wing populist party with radical elements”, pointing out that the party “enforced xenophobic sentiments in campaigns”.[28] In addition, the report condemned the FPÖ’s practice of “suppress[ing] criticism by the continuous use of libel procedures” against journalists and researchers.[29] While the report stated that the measures “heightened awareness of the importance of the common European values” and “energized civil society” to defend them, Frowein, Ahtisaari, and Oreja also stressed that they “have in some cases been wrongly understood as sanctions directed against Austrian citizens” and were therefore simultaneously “counterproductive”.[30] A few days later, the EU‑14 followed the recommendations of the Wise Men and lifted the measures against the Austrian government.[31] Finally, Frowein, Ahtisaari, and Oreja urged the EU to develop a mechanism for evaluating member states’ commitment to common European values. They recommended the “introduction of preventive and monitoring procedures into Article 7 of the EU Treaty [EUT] so that a situation similar to the current situation in Austria would be dealt with within the EU from the very start.”[32]

Conclusion

Less than a year later, at the Summit in Nice in February 2001, the EU introduced a mechanism for sanctioning member states’ violations of European values, with the suspension of voting rights of the accused member state as a last resort. In a crucial moment of  EU history and as European values were put to the test, MPIL director Jochen Abr. Frowein alongside Maarti Ahtisaari and Marcelino Oreja was sent to Vienna on a delicate mission. The contributed to reforming how the EU protects and promotes its common values – at least on paper.

The question of how the EU should promote its common values and sanction those who violate them concerns the union to this day and perhaps now more than ever. The lesson of the measures taken by the EU‑14 against the Austrian government is twofold: On the one hand, they accelerated the introduction of a clear procedure in the TEU. On the other hand, the EU has been notoriously cautious to trigger this mechanism against members such as Hungary and Poland. Beyond the internal workings of the union, increasingly the question arises how the EU wants to promote its values beyond its member states and how far it is willing to go, as the debates about military assistance for Ukraine and the introduction of the EU Supply Chain Directive have shown. There is still plenty to discuss in Europe and at the MPIL about common European values, their promotion, and enforcement. It remains an “almost impossible mission.”

[1] Eva Linsinger, ‘Da haben sie die Ohren gespitzt‘: Menschenrechtsgruppen und Riess-Passer bei den drei Weisen in Heidelberg,“ Der Standard, 31 August 2000.

[2] Waldemar Hummer, The End of EU Sanctions against Austria – A Precedent for New Sanctions Procedures?, The European Legal Forum 2 (2000), 77-83, 79.

[3] Belgiens Außenminister Michel nennt eigene Äußerungen ’dumm‘, Tagesspiegel, 27 February 2000.

[4] Bundesministerium für auswärtige Angelegenheiten, Außenpolitischer Bericht 2000: Jahrbuch der Österreichischen Außenpolitik, Wien: Bundesministerium für auswärtige Angelegenheiten 2000, 30.

[5] Kim Lane Scheppele/Laurent Pech, Didn’t the EU Learn That These Rule-of-Law Interventions Don’t Work?, Verfassungsblog, 9 March 2018.

[6] Andreas Middel, Wien zeigt sich gegenüber der EU stur, Die Welt, 3 June 2000.

[7] Frank Schorkopf, Die Maßnahmen der XIV EU-Mitgliedstaaten gegen Österreich: Möglichkeiten und Grenzen einer “streitbaren Demokratie” auf europäischer Ebene, Berlin: Springer 2002, 145.

[8] Bericht des Hauptausschusses über den Antrag 211/A, Nr. 268 der Beilagen zu den Stenographischen Protokollen des Nationalrates, XXI. GP, Wien: Österreichisches Parlament, 11 July 2000.

[9] Hummer (fn. 2), 78.

[10] Schorkopf (fn. 7), 161.

[11] Porträts, Die Presse, 9 September 2000.

[12] Rüdiger Wolfrum, Jochen Abr. Frowein Zum 70. Geburtstag, Archiv des Öffentlichen Rechts 129 (2004), 330–332.

[13] Eine fast unmögliche Mission, Der Standard, 28 July 2000.

[14] Susanna Heubusch, Privatbutler und Topfennockerl – erlesener Service für den ‚Weisenrat‘, Kurier, 30 July 2000.

[15] Karl Ettinger/Friederike Leibl, Drei Weise, zehn Sessel 100 Journalisten, Die Presse, 29/30 July 2000; for a complete list of the meetings held in Vienna, see: Schorkopf (fn. 7), 195–97.

[16] Ettinger/Leibl (fn. 16).

[17] Heubusch (fn. 15); Drei Weise prüfen Österreich: ‘Sie meinen es sehr ernst‘, Die Presse, 29/30 July 2000.

[18] Eva Linsinger, FPÖ-Kuscheloffensive, Der Standard, 25 July 2000.

[19] Photo: MPIL.

[20] Fakten statt Diffamierung, News, 33/2000.

[21] Linsinger, Ohren (fn.1).

[22] Eva Linsinger, Das Ende einer Dienstfahrt, Der Standard, 31 August 2000.

[23] Linsinger, Ende (fn. 23).

[24] Martti Ahtisaari/Abraham Frowein/Marcelino Oreja, Report on the Austrian Government’s Commitment to the Common European Values, in Particular Concerning the Rights of Minorities, Refugees and Immigrants, and the Evolution of the Political Nature of the FPÖ (the Wise Men Report), International Legal Materials 40 (2001), 102–123.

[25] Nikolaus Nowak, Diplomatischer Skandal: ‚El Pais‘ bekam Bericht zu Österreich vor Chirac, Die Presse, 9 September 2000.

[26] Under Frowein’s leadership, the MPIL had become a trailblazer for digitization in the MPG, see: Rudolf Bernhardt/Karin Oellers-Frahm, Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Contributions on Comparative Public Law and International Law, Vol. 270, Heidelberg: Springer 2018, 23.

[27] Ahtisaari/Frowein/Oreja (fn. 25), 119.

[28] Ahtisaari/Frowein/Oreja (fn. 25), 120.

[29] Ahtisaari/Frowein/Oreja (fn. 25), 120.

[30] Ahtisaari/Frowein/Oreja (fn. 25), 121.

[31] Schorkopf (fn. 7), 201-202.

[32] Ahtisaari/Frowein/Oreja (fn. 25), 120.

Gazing at Europe: The Epistemic Authority of the MPIL

8. März 2024
Jan Klabbers
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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.

Suggested Citation:

Jan Klabbers, Gazing at Europe. The Epistemic Authority of the MPI, MPIL100.de, DOI: 10.17176/20240318-143111-0
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On the Very Idea of Transnational Constitutional Law

8. Dezember 2023
Alexander Somek
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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.

Suggested Citation:

Alexander Somek, On the Very Idea of Transnational Constitutional Law, MPIL100.de, DOI: 10.17176/20240403-135705-0
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